U.S.A v. Townsend

• Decision Date: 26 August 2010
• Docket Number: No. 09-3095.,09-3095.
• Citation: 618 F.3d 915
• Parties: UNITED STATES of America, Appellee,v.Tyjuan Develle TOWNSEND, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

618 F.3d 915

UNITED STATES of America, Appellee,v.Tyjuan Develle TOWNSEND, Appellant.

No. 09-3095.

United States Court of Appeals Eighth Circuit.

Submitted: June 18, 2010.

Filed: Aug. 26, 2010.

Rehearing and Rehearing En Banc Denied Oct. 20, 2010.

COPYRIGHT MATERIAL OMITTED

Ronald L. Davis, Jr., argued, Little Rock, AR, for Appellant.

Robert J. Govar, AUSA, argued, Little Rock, AR, for Appellee.

Before SMITH and HANSEN, Circuit Judges, and WEBBER,¹ District Judge.

SMITH, Circuit Judge.

Tyjuan Develle Townsend appeals the 120-month sentence that the district court ² imposed after Townsend pleaded guilty to possessing more than three grams of cocaine base after having two or more final convictions for state felony drug offenses, in violation of 21 U.S.C. § 844(a). Townsend argues that the district court committed reversible procedural error by failing to adequately explain his sentence and that his sentence is substantively unreasonable. We affirm.

I. Background

After Townsend pleaded guilty to violating § 844(a), a presentence investigation report (PSR) was prepared. Based on a total offense level of six and a criminal history category of VI, the PSR calculated Townsend's Guidelines range as 12 to 18 months' imprisonment. But the statutory mandatory minimum required 60 months' imprisonment.

At sentencing, Townsend did not object to the PSR; as a result, the district court “rel[ied] upon the accuracy and truthfulness of the statements [in the PSR] in reaching [its] decisions....” The district court then engaged in a lengthy sentencing colloquy and discussion of the factors outlined in 18 U.S.C. § 3553(a). Ultimately, the district court sentenced Townsend to 120 months' imprisonment.

II. Discussion

On appeal, Townsend asserts that the district court procedurally erred by sentencing him above the Guidelines range-the statutory mandatory minimum of 60 months-to 120 months' imprisonment and that his sentence is substantively unreasonable.

A. Procedural Error

The first step in reviewing a sentence is to ensure that the district court committed no significant procedural error. Examples of procedural error include: failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range.

United States v. Hill, 552 F.3d 686, 690 (8th Cir.2009) (internal quotations and citation omitted).

In the present case, Townsend “failed to object at sentencing to any alleged procedural sentencing error.” Id. Townsend's failure to timely object to such alleged error means that “the error is forfeited and may only be reviewed for plain error.” Id. (internal quotations and citations omitted). Therefore, Townsend “must show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” Id. (internal quotations and citations omitted). “Even if the defendant shows these three conditions are met, we may exercise our discretion to correct a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotations, alteration, and citations omitted).

According to Townsend, the district court procedurally erred “by failing adequately to explain the chosen sentence.” See id. at 691.

Gall [v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007),] sets forth the procedure to be followed in sentencing a criminal defendant. The district court should begin by correctly calculating the applicable Guidelines range. The Guidelines should be the starting point and the initial benchmark, but the Guidelines are not the only consideration. The district judge should allow both parties an opportunity to argue for whatever sentence they deem appropriate, and then should consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.

Id. (internal quotations, alterations, and citations omitted). Ultimately, the district court

must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. It is uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.

Id. (internal quotations, alteration, and citation omitted). In explaining its rationale for the chosen sentence and discussing the § 3553(a) factors,

a district court is not required to provide a full opinion in every case, but must set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.

Id. (internal quotations and citation omitted).

Our review of the sentencing transcript reveals that the district court “provided ample explanation of its rationale for the sentence imposed.” See id. The district court extensively cited Townsend's substantial criminal background, the “innumerable second chances” that Townsend had, the need to protect the public from further offenses, and the need to avoid unwarranted sentencing disparities.³ Therefore, we hold that “[t]he district court did not commit significant procedural error, much less plain error, in explaining [Townsend's] sentence.” Id. at 692.

B. Substantive Reasonableness

Townsend also argues that his sentence is substantively unreasonable because his conviction “for possession of more than one gram of cocaine base after two felony drug convictions was a run-of-the-mill case and his guideline range was sufficient but not greater than necessary to fulfill the sentencing objectives of § 3553(a).”

Because we concluded that the district court “committed no plain procedural error,” we must now

consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard, taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range. In contrast to procedural errors, a defendant does not forfeit an attack on the substantive reasonableness of a sentence by failing to object in the district court.

Although we may consider the extent of the deviation, we must give due deference to the district court's decision that the § 3553(a) factors, on the whole, justify the extent of the variance. The sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case. Therefore, the fact that we might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.

Id. at 690-91 (internal quotations, alterations, and citations omitted).

Here, the district court specifically enumerated the § 3553(a) factors in its lengthy sentencing colloquy and discussed those factors, focusing primarily on Townsend's substantial criminal history and drug abuse. ⁴ Although Townsend's sentence is twice the mandatory minimum, a district court need not “justify an extraordinary variance with an extraordinary or equally compelling justification” as “this line of reasoning is no longer good law after the Supreme Court's decision in Gall ....” United States v. Clay, 579 F.3d 919, 933-34 (8th Cir.2009). In Gall, the “Court expressly rejected any ‘appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.' ” Id. at 934 (quoting Gall, 128 S.Ct. at 594-95).

After considering “the totality of the circumstances, including the extent of the variance from the Guidelines range and giving due deference to the district court's decision that the § 3553(a) factors, on the whole, justify the extent of the variance,” we conclude that the district court did not abuse its discretion in sentencing Townsend to 120 months' imprisonment and that “no basis [exists] for concluding the sentence is substantively unreasonable.” Hill, 552 F.3d at 693 (internal quotations, alterations, and citations omitted).

III. Conclusion

Accordingly, we affirm the judgment of the district court.

1. The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri, sitting by designation.

2. The Honorable G. Thomas Eisele, United States District Judge for the Eastern District of Arkansas.

3. For example, the district court recounted the “offender characteristics sections” of the PSR, focusing on Townsend's gang involvement and substance abuse. The court also noted that Townsend “had little or inconsequential employment history.” Thereafter, the district court focused its discussion on Townsend's substantial criminal history and ultimately concluded as follows:

The Court notes that, again, the defendant was on parole at the time of the instant offense, he continued criminal conduct while on pretrial release, he has a very extensive and serious criminal history which everybody acknowledges and, frankly, Mr. Townsend, I don't know there's any reasonable basis for finding that you are sincere in your protestations that you have changed.

We're talking here, and your mother talks about second chances, but you've had innumerable second chances along the way and they've been followed almost immediately with additional criminal conduct. The Court must also consider the need to protect the public from further offenses by you and to deter others from following the same course of action. As I've suggested, one of the objectives is to avoid the disparities in sentencing among people charged with similar crimes and with similar criminal...