United States v. Dickerson
| Decision Date | 03 February 2017 |
| Docket Number | No. 14-2223,14-2223 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KELVIN L. DICKERSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before TYMKOVICH, Chief Judge, HOLMES, and MATHESON, Circuit Judges.
Defendant-Appellant Kelvin Dickerson appeals from the district court's written judgment sentencing him to 121 months' imprisonment and three years of supervised release, and ordering him to pay restitution in the amount of $9,798.60. Exercising jurisdiction under 28 U.S.C. § 1291, with the exception of Mr. Dickerson's challenge regarding the restitution amount specified in the written judgment, we affirm Mr. Dickerson's sentence. As to that restitutionamount, we reverse and remand with instructions for the district court to enter an amended judgment ordering restitution in the amount of $8,424.60.
During the summer of 2013, Mr. Dickerson robbed seven individuals as they attempted to make deposits for their employers at banks throughout Albuquerque, New Mexico. Applying various amounts of force, Mr. Dickerson obtained money from the possession of each victim and fled the scene in a car driven by his co-defendant, Dominique Dickens. Police apprehended Mr. Dickerson after his seventh robbery, on September 5, 2013.
The grand jury returned an eight-count indictment, charging Mr. Dickerson with one count of conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) (Count 1), two counts of robbery in violation of § 1951(a) (Counts 2 and 5), and five counts of robbery and aiding and abetting (Counts 3, 4, 6, 7, and 8), in violation of 18 U.S.C. §§ 2 and 1951(a). Mr. Dickerson pleaded guilty to all eight counts.
The presentence investigation report ("PSR") calculated a recommended sentencing range under the U.S. Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") of 151 to 188 months' imprisonment and recommended restitution in the amount of $8,424.60, based on its calculation of actual loss to theindividual victims and the employers whose deposits were stolen.1 To calculate the recommended Guidelines range, the PSR created seven sentencing groups. See U.S.S.G. § 3D1.2 (). The PSR created seven sentencing groups based on Dickerson's charges. Group 1 consisted of Count 1 (conspiracy to commit robbery) and Count 2 (robbery). The remaining six counts were grouped individually—that is, Count 3 became Group 2, Count 4 became Group 3, and so on.
The PSR then calculated the combined offense level for the sentencing groups pursuant to U.S.S.G. § 3D1.4. The combined offense level is determined by calculating the adjusted offense level for each group and "taking the offense level applicable to the Group with the highest offense level and increasing that offense level by the amount indicated in [§ 3D1.4]." See U.S.S.G. § 3D1.4. The PSR assigned each sentencing group a base offense level of twenty, which is the base offense level for a violation of 18 U.S.C. § 1951. See U.S.S.G. § 2B3.1. The PSR then applied various sentencing enhancements to each sentencing group,2 and identified Group 5 as having the highest adjusted offense level atthirty. The PSR then increased that offense level—i.e., thirty—by five levels based on the adjusted offense levels of the other six groups pursuant to § 3D1.4, totaling a combined offense level of thirty-five. Finally, the PSR subtracted three levels from the combined offense level for acceptance of responsibility under § 3E1.1, for a total offense level of thirty-two. Based on the total offense level of thirty-two, and a criminal history category of III, the PSR calculated a Guidelines range of 151 to 188 months' imprisonment.
At the sentencing hearing, the district court "adopt[ed] the proposed findings set forth in the [PSR] with the exception [of the] two-level enhancement for threat of death" that the PSR had applied to Groups 1, 2, and 3. R., Vol. III, at 11 (Sentencing Hr'g Tr., dated Dec. 9, 2014). The court then stated that the Guidelines range was 121 to 151 months' imprisonment. The court pronounced a sentence of 121 months' imprisonment and three years of supervised release, andordered Mr. Dickerson to pay restitution in the amount of $8,424.60.
The district court entered a written judgment against Mr. Dickerson on December 15, 2014. The written judgment differed from the sentence pronounced from the bench, however, in one material respect: it ordered restitution in the amount of $9,798.60, rather than $8,424.60. The remainder of the judgment reflected the terms orally pronounced at the sentencing hearing: i.e, 121 months' imprisonment and three years of supervised release.
Mr. Dickerson filed a timely appeal, challenging the amount of the written restitution order, and the procedural and substantive reasonableness of his prison sentence.
Mr. Dickerson first challenges the restitution amount ordered in the written judgment. At the sentencing hearing, the district court ordered Mr. Dickerson to pay $8,424.60 in restitution, but in its written judgment the district court ordered Mr. Dickerson to pay restitution in the amount of $9,798.60. On appeal, the government concedes that the amount of restitution ordered at the sentencing hearing—that is, $8,424.60—controls. We agree. See United States v. Barwig, 568 F.3d 852, 855 (10th Cir. 2012) ; accord United States v. Ullman, 788 F.3d 1260, 1264 (10th Cir. 2015). Accordingly, we reverseand remand to the district court with instructions to enter an amended judgment reflecting the restitution amount pronounced at the sentencing hearing—that is, $8,424.60.
Mr. Dickerson challenges the procedural and substantive reasonableness of the district court's 121-month prison sentence. We reject these challenges.
"Reasonableness review is a two-step process comprising a procedural and a substantive component." United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008). United States v. Lucero, 747 F.3d 1242, 1246 (10th Cir. 2014) (citation omitted) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
Procedural reasonableness concerns "the manner in which the sentence was calculated." United States v. Sanchez-Leon, 764 F.3d 1248, 1261 (10th Cir. 2014) (quoting United States v. Masek, 588 F.3d 1283, 1290 (10th Cir. 2009)). "Procedural error includes '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 anydeviation from the Guidelines range.'" Id. (quoting Gall, 552 U.S. at 51).
Where a defendant preserves his or her procedural challenge in the trial court, we generally review the procedural reasonableness of that defendant's sentence using the familiar abuse-of-discretion standard of review, "under which we review de novo the district court's legal conclusions regarding the guidelines and review its factual findings for clear error," United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012) (alteration in original); accord Lucero, 747 F.3d at 1246.
"The party challenging the sentence 'bears the initial burden of showing that the district court' erred.'" Sanchez-Leon, 764 F.3d at 1261 (quoting Williams v. United States, 503 U.S. 193, 203 (1992)). "If we find a procedural error, 'resentencing is required only if the error was not harmless.'" Id. (quoting United States v. Cerno, 529 F.3d 926, 939 (10th Cir. 2008)).
Substantive reasonableness, on the other hand, concerns "whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a)." United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (quoting United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1215 (10th Cir. 2008)). We review a sentence for substantive reasonableness under the abuse-of-discretion standard and give "substantial deference to district courts." United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009).
We first turn to Mr. Dickerson's procedural challenges to his prison sentence. He argues that the district court erred in applying "four types of sentencing enhancements and [in calculating] restitution" because the relevant evidence in the record is unreliable and, even if reliable, it is insufficient to support the enhancements and restitution amounts. Aplt.'s Opening Br. at 18. Additionally, he argues that the district court failed to make findings as to disputed issues of fact and erred in relying on these disputed facts to increase his sentence.
We first address Mr. Dickerson's challenge to the reliability of the evidence in the record to support the sentencing enhancements and restitution amount. Mr. Dickerson argues that the only evidence in the record that supports his enhancements was "hearsay information, most of which was taken from police reports." Aplt.'s Opening Br. at 19. He complains that the "probation officer apparently conducted no in-person interviews and consequently did not observe the demeanor of any victim or any other person involved in this case," and that "[n]o medical reports substantiated the claimed injuries and no business reports substantiated the claimed loss amounts." Id. at 20.
Where an evidentiary reliability argument is properly preserved for ourconsideration, "[w]e review for clear error a...
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