U.S. v. Washington

Citation515 F.3d 861
Decision Date28 January 2008
Docket NumberNo. 06-3584.,No. 06-3954.,06-3584.,06-3954.
PartiesUNITED STATES of America, Appellee, v. Ashanti Nadjari WASHINGTON, Appellant. United States of America, Appellee, v. Robert Lloyd Williams, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Karl E. Robinson, argued, Minneapolis, MN, for appellant Williams.

Hersch Izek, on the brief, for appellant Williams.

Joseph T. Dixon, III, AUSA, argued and on the brief, Minneapolis, MN, for appellee USA.

Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.

HANSEN, Circuit Judge.

Ashanti Nadjari Washington (Washington) and Robert Lloyd Williams (Williams) each entered a plea of guilty to one count of attempted bank robbery in violation of 18 U.S.C. § 2113(a). The district court1 accepted their pleas and sentenced each defendant to a 72-month term of imprisonment. Washington and Williams appeal the reasonableness of their sentences.

I.

On a tip that Washington might be involved in bank robberies, agents of the Federal Bureau of Investigation (FBI) began investigating, and on the morning of March 9, 2006, they observed Washington and Williams drive to the TCF Bank in Bloomington, Minnesota. Once there, Washington and Williams circled the building a few times and watched from a nearby parking lot as bank tellers opened the bank. The next morning, agents observed Washington do the same thing with Ashaunti Quantay Prowell. On. March 14, 2006, all three men drove to the bank together in a stolen vehicle and parked in the bank parking lot. FBI agents acting as bank employees purported to open the bank. Williams and Prowell entered the bank with two black bags. When confronted by the FBI agents, they dropped their bags and ran. Agents arrested Prowell in the bank parking lot, Williams following a foot chase, and Washington as he attempted to flee in the stolen vehicle.

Williams, Washington, and Prowell were named as codefendants in a one-count indictment charging them with attempted bank robbery, and all three men pleaded guilty to the charge. Washington and Williams appeal, arguing that their 72-month sentences are unreasonable.

II. Williams

Williams argues that his 72-month sentence represents an unreasonable upward departure or variance from the advisory sentencing range as calculated pursuant to the United States Sentencing Guidelines Manual (2006) (USSG or Guidelines). Pursuant to Paragraph 9 of his plea agreement, however, Williams waived the right to appeal his sentence "unless the sentence exceeds 151 months." (Appellee's Add. at A-5.) In his plea agreement, he stipulated to an offense level and criminal history category which, although not binding on the district court, would yield either an advisory Guidelines range of 151 to 188 months of imprisonment or an advisory Guidelines range of 63 to 78 months, depending on whether or not the district court ultimately determined that Williams was a career offender. Despite the factual dispute over his career offender status, Williams agreed in Paragraph 9 to waive his right to appeal any sentence not exceeding 151 months, and his 72-month sentence is clearly within the scope of that agreement. See United States v. Andis, 333 F.3d 886, 890 (8th Cir.) (en banc) (noting Government has the burden "to demonstrate that a plea agreement clearly and unambiguously waives a defendant's right to appeal"), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398. Williams does not assert on appeal that his plea was involuntarily or unknowingly entered, and in any event, such a claim would not be cognizable on direct appeal where he failed to present it to the district court in the first instance by a motion to withdraw his guilty plea. United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990). We therefore enforce the appeal waiver and dismiss Williams's appeal.

III. Washington

Washington's plea agreement contains no appeal waiver. In the agreement, Washington stipulated that he was subject to a Guidelines offense level of 19 and a criminal history category of III, resulting in an advisory Guidelines sentencing range of 37 to 46 months. The Government argued that a sentence above the advisory Guidelines range was necessary because the range did not adequately take into consideration the fact that Washington had committed the instant bank robbery only a few months following his release from prison on a 78-month sentence for a prior armed bank robbery conviction. The Government moved for an upward departure pursuant to USSG § 4A1.3 (Inadequacy of Criminal History Category), § 5H1.9 (Dependence upon Criminal Activity for a Livelihood), and § 5K2.0 (Other Grounds for Departure), or a post-Booker2 upward variance pursuant to the factors articulated in 18 U.S.C. § 3553(a).

The district court agreed with the stipulated Guidelines calculations but, without clearly identifying whether it was granting a Guidelines-based departure or a post-Booker variance pursuant to § 3553(a), the district court imposed a 72-month sentence.3 Washington challenges the reasonableness of the district court's upward deviation from the 37 to 46 month Guidelines range.

We review the sentence imposed for reasonableness, applying "the familiar abuse-of-discretion standard." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). See Booker, 543 U.S. at 261, 125 S.Ct. 738 (directing appellate courts to determine whether a sentence is unreasonable in light of the factors set forth in § 3553(a)); see also United States v. D'Andrea, 473 F.3d 859, 864 (8th Cir.) (noting that "review for reasonableness is akin to our traditional review for abuse of discretion" (internal marks omitted)), cert. denied, ___ U.S. ___, 127 S.Ct. 2441, 167 L.Ed.2d 1140 (2007). The Court identified in Gall that our first task on appeal is to "ensure that the district court committed no significant procedural error, such as 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." Gall, 128 S.Ct. at 597. Our second task on appeal, if we are certain that the district court's decision is "procedurally sound," is to "then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id. When the sentence is within the Guidelines range, we are permitted, but not required, to apply a presumption of reasonableness. Id.; Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007). When the sentence is outside the Guidelines range, a presumption of reasonableness is not available, but we "may consider the extent of the deviation, [giving] due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Gall, 128 S.Ct. at 597.

Within this framework, we first consider whether the district court committed any significant procedural error. The Court in Gall confirmed that, in reviewing a sentence, our "starting point and the initial benchmark," like the district court's, is the calculation of the applicable Guidelines sentencing range. Id. at 596; see also United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert. denied, 546 U.S. 913, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). A Guidelines sentence is arrived at after determining the appropriate Guidelines range and evaluating whether any traditional Guidelines departures are warranted. Haack, 403 F.3d at 1003. Washington stipulated to the Guidelines calculations that the district court adopted, resulting in an advisory sentencing range of 37 to 46 months, and there is no claim of error in those calculations. Consistent with Booker, 543 U.S. at 233-37, 125 S.Ct. 738, the district court did not treat the Guidelines as mandatory but, in fact, deviated upward from the Guidelines range to a 72-month sentence after considering that Washington had returned to the same crime within five months of his release from a prior sentence for bank robbery despite his unusually supportive family and his impending responsibility for a new child. In identifying these aggravating circumstances and imposing a sentence above the range, the district court referenced both a Guidelines section and § 3553(a), describing its deviation from the advisory sentencing range "as a variance or upward departure." (Sent. Tr. at 20.) Thus, while the factual basis for the deviation is clear, the legal basis is not. We urge district courts to continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a). Haack, 403 F.3d at 1003. A district court's clear application of this three-step process maintains a meaningful distinction between sentences imposed pursuant to and within the structure of the Guidelines and non-Guidelines sentences and facilitates meaningful appellate review, a statutory duty we still must discharge pursuant to 18 U.S.C. § 3742. See Gall, 128 S.Ct. at 597 ("[the district court] must adequately explain the chosen sentence to allow for meaningful appellate review"); United States v. Solis-Bermudez, 501 F.3d 882, 884 (8th Cir.2007).

As noted above, the district court described its sentence as a "variance or upward departure" from the Guidelines range and drew no distinctions between the two terms. (Sent. Tr. at 20.) The district court at one point did reference a traditional Guidelines departure factor (USSG § 5H1.9—a policy statement that permits consideration of "[t]he degree to which a defendant depends upon criminal activity for a livelihood") but made no...

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