United States v. Gantt

• Decision Date: 30 May 2012
• Docket Number: No. 11–3127.,11–3127.
• Citation: 679 F.3d 1240
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Deshane GANTT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

679 F.3d 1240

UNITED STATES of America, Plaintiff–Appellee,

v.Deshane GANTT, Defendant–Appellant.

No. 11–3127.

United States Court of Appeals, Tenth Circuit.

May 30, 2012.

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, KS, for Defendant–Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff–Appellee.

Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Deshane Gantt pleaded guilty in the United States District Court for the District of Kansas to brandishing a firearm during a crime of violence, see18 U.S.C. § 924(c)(1), and received a sentence of 20 years' imprisonment. He appeals his sentence, arguing that it was both procedurally and substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Defendant's sentence was procedurally reasonable because the district court adequately explained why it varied from the guideline sentence, and it was substantively reasonable because the length of the sentence was not an abuse of discretion.

I. BACKGROUND

On November 8, 2010, Christopher Crabtree drove Defendant to the Catholic Family Federal Credit Union in Wichita, Kansas, to commit an armed robbery. Upon entering the credit union alone, Defendant ordered the employees to the floor while brandishing a 9–millimeter pistol, saying: “This is a robbery ... I don't want to turn this into a homicide.” R., Vol. 1 at 20. He then removed $7,803 from the teller drawers and fled on foot to his home. There, as previously arranged, Crabtree met him to drive him from his home so he would not be discovered there with the money. They hid the stolen cash in a pillow case under Defendant's seat. Soon, however, they were stopped by a police officer for failing to stop at a stop sign. The officer, aware that the car and its occupants resembled what witnesses to the robbery had observed, asked to search the car. Crabtree consented and the officer found the money in the pillowcase.

A grand jury indicted Defendant on three counts: bank robbery, brandishing a firearm during a crime of violence, and being a felon in possession of a firearm. Under a plea agreement he pleaded guilty to the second count. In return the government dismissed the other two counts and agreed to recommend a sentence “at the low end of the applicable guideline range.” Id. at 22. For a violation of § 924(c), however, the Sentencing Guidelines do not provide a guideline sentencing range but only a guideline sentence, which is the statutory mandatory minimum. SeeUSSG § 2K2.4(b) (stating that, absent an exception not pertinent to this case, “if the defendant, whether or not convicted of another crime, was convicted of violating section 924(c) ..., the guideline sentence is the minimum term of imprisonment required by statute”). For brandishing a firearm, that minimum is seven years, to be served consecutively to any other sentence. See18 U.S.C. 924(c)(1)(A)(ii), (D)(ii). A note to the guideline provision states: “A departure may be warranted ... to reflect the seriousness of the defendant's criminal history in a case in which the defendant is convicted of an 18 U.S.C. § 924(c) ... offense but is not determined to be a career offender under [USSG] § 4B1.1.” USSG § 2K2.4 cmt. n. 2(B).

The probation office's presentence report, to which no objection was made by Defendant or the government, described the robbery and Defendant's criminal background. He had been adjudicated a juvenile offender on four occasions, including a 2006 adjudication for possessing a firearm when he was 17. In 2008 he pleaded guilty as an adult to aggravated battery, an offense involving his shooting a gun. He was initially placed on probation but ultimately was incarcerated about five months in prison after violating the terms of his probation. He was released from prison a year before the credit-union robbery.

Before the sentencing hearing on April 18, 2011, defense counsel submitted a sentencing memorandum trying to explain Defendant's fall from grace, together with letters from Defendant's father and an ex-girlfriend. At the hearing itself the district court heard statements from several persons. Three credit-union witnesses spoke to the robbery's impact on employees. A former high-school teacher said that Defendant had been an outstanding student, a leader well-liked by his peers and the staff, and a member of his class chosen to give a graduation speech. His father and mother, married for 29 years, also spoke. His mother told of her special bond with Defendant and said that he would be the next Will Smith (a famous entertainer). His father, a retired police officer, described his 22–year–old son as someone willing to take on many responsibilities and as the glue among his siblings, who included one son who had graduated from college and others in college. Finally, Defendant himself spoke, stating that he was “a regular person who makes mistakes.” R., Vol. 3 at 22.

The district court then explained the thinking behind the sentence it proposed to give. It began: “Well, this is not a sentencing guideline case. There's a mandatory minimum sentence of ten years—seven years. A life sentence is the maximum sentence. So I can sentence anywhere from seven years to life.” Id. at 23. It next discussed the sentencing factors in 18 U.S.C. § 3553(a), noting the seriousness of Defendant's offense and his prior record, and expressing bewilderment at why he had turned out as he had. Emphasizing the need to protect the public, the court imposed a sentence of 20 years' imprisonment and three years' supervised release.

After Defendant said that he had no questions, defense counsel interrupted to correct the court's statement that there was no applicable guideline in the case. He pointed out that “the guideline sentence would be the mandatory minimum of seven years.” Id. at 29. The court responded: “Well, I meant to say—I'm sorry—that there's no criminal history calculation in the case. But the sentence is still—an authorized sentence is still seven years to life. You agree with that?” Id. Counsel indicated that he agreed, but said that he had not received notice of the court's contemplated “departure” from the guidelines. Id. The court said that it would continue the sentencing hearing for a week. When defense counsel repeated that the guideline sentence was seven years, the court said: “Well, I'm not sure I agree with that; but if in fact that is the guideline sentence, 84 months, then you are notified here today that I consider that sentence to be woefully inadequate.” Id. at 30. It added that it would read anything submitted by counsel, “but he'll never get a seven year sentence from me. So, that's just the way it is.” Id. at 31.

Before the second hearing Defendant filed a motion and supplemental memorandum arguing (1) that the district court must consider the guideline sentence of seven years' imprisonment; (2) that a 20–year sentence would create an “unwarranted disparity in sentencing between [Defendant] and [Crabtree] and others similarly situated,” R., Vol. 1 at 41, although the motion's brief discussion of disparity compared Defendant's sentence only to Crabtree's; (3) that there were no facts in this case that took it out of the heartland of bank-robbery cases involving a firearm; (4) that the court should take into account that Defendant's prior conviction for aggravated battery was for an act of self-protection; and (5) that Defendant's history and characteristics did not justify an upward departure or variance.

At the second hearing the district court acknowledged that counsel was correct about the seven-year guideline sentence and then explained that “the sentence that I imposed last week and the sentence that I think is a correct sentence is a variance from the guideline sentence.” Id. at 32. It said that it thought it had made an adequate record of the reasons for the sentence at the first hearing, but invited additional arguments. Defense counsel stated:

Your Honor, I don't have anything to add to our briefs or memorandum. I shared with the Court our arguments and position in the hopes that the Court would sentence, with reference to the guideline, consider a lower sentence. I understood the Court's perspective at the time of sentencing was focusing on a range of 7 to life, and with the focus on the guideline at 7 and then considering a variance above it. As we expressed in the papers, we would ask the Court to reconsider.

Id. at 33–34. Defendant said that he had nothing to add.

The court declined to modify its sentence. It spoke at some length, expressing its concern about the seriousness of Defendant's criminal history and the need to protect the public:

I've looked back over this case, and in particular, the materials that [defense counsel] has provided. I read the police reports. And there's just no—there's no getting around what happened here. The presentence report demonstrates, it's not been objected to, that Mr. Gantt at age 17 was adjudicated a juvenile because he had criminal possession of a firearm. And a year later at age 18 he's involved in this shooting[, which led to his conviction for aggravated battery]. And the thing that bothers me about the shooting is not, you know, it's one thing to go out and want to have a fist fight with somebody you don't like. I don't see anything really terrible about that. We ought to settle our arguments some other way, but having a fist fight probably is as good a way as any in some of these situations. But that's not what happened. Mr. Gantt got ahold of a firearm, he fired five indiscriminate shots at the other person involved in the fight, hit him twice. Could have killed him, Mr. Gantt. I mean, just shooting indiscriminately, you know, people could get killed. He got a sentence over in state court that, frankly, I don't see how these sentences really teach...