Case: 13-14926   Date Filed: 06/25/2014   Page: 1 of 16


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14926
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 3:12-cr-00031-MCR-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus



KARDALE LAMAR BLACK,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________
                             (June 25, 2014)

Before TJOFALT, PRYOR and MARTIN, Circuit Judges.
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PER CURIAM:

      On April 19, 2012, a Northern District of Florida indicted Kardale Lamar

Black, Marquise Demetris Jenkins, and Malcom Mahummed Wright for

committing a carjacking on March 10, 2012, in the City of Gulf Breeze, in Santa

Rosa County, Florida. The indictment contained three counts. All three

defendants were charged in Count One with carjacking, in violation of 18 U.S.C. §

2119, and in Count Two for using, carrying or possessing a firearm during and in

relation to the Count One offense, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

Black, alone, was charged in Count Three for possession of ammunition by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

                                         I.

      The three defendants were arrested by local law enforcement on March 11,

the day after the carjacking, charged with state offenses, and detained. Federal

authorities gained their custody following their indictment in the Northern District

on April 19, 2012. On April 25, 2012, they were arraigned by a Magistrate Judge,

and following appointment of counsel, entered pleas of not guilty. The Magistrate

Judge then granted the Government’s motion for an order detaining them for trial,

which was scheduled for June 4, 2012.

      On May 22, 2012, Black’s attorney, in a motion to the District Court,

suggested that Black may be incompetent to stand trial. The court held a hearing
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on the matter and ordered Black committed to the Bureau of Prisons for a

psychological evaluation. On July 17, 2012, while Black was in the Bureau’s

custody, the grand jury returned a superseding indictment with counts materially

identical to those of the initial indictment, and Jenkins and Wright entered pleas of

guilty to Counts One and Two. On August 14, Wright was sentenced to

imprisonment for 64 months on Count One and consecutively for 84 months on

Count Two, for a total imprisonment of 148 months. Jenkins also received

consecutive sentences, 57 months on Count One and 84 months on Count Two, for

a total of 141 months.

      In September 2012, a Bureau of Prisons’ forensic psychologist, Rodolpho

Buigas, Ph.D, found that Black had an “Antisocial Personality Disorder” but was

not suffering from any mental disease or defect of a degree that would impede his

ability to understand the criminal proceedings he faced; that Black was

“malingering”; and that he was competent to stand trial. At a hearing held on

November 8, 2012, the District Court accepted Dr. Buigas’s finding and declared

Black competent to proceed; arraigned Black on the superseding indictment,

accepting his pleas of not guilty; and scheduled his trial for December 19, 2012.

      The trial was continued, however, and on January 4, 2013, Black, without

the aid of a plea agreement, appeared before a Magistrate Judge and tendered pleas

of guilty to Counts One and Two of the superseding indictment. The Government

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stated that if the pleas were accepted, it would dismiss Count Three. The District

Court accepted the pleas on January 7, tentatively scheduled Black’s sentencing for

March 20, 2013, and ordered its Probation Office to prepare a presentence

investigation report (“PSI”).

       The PSI disclosed that Black, as a juvenile, had been adjudicated a

delinquent in the Circuit Court for Escambia County, Florida, for committing the

offenses of grand theft, burglary, aggravated battery, and battery on a correctional

officer on separate occasions. 1 As an adult, Black had been convicted in the

Circuit Court for Escambia County in June 1999 for robbery, and in January 2012

for grand theft auto and for possession of marijuana. 2 The PSI also disclosed that

Black’s mother, then deceased, had been a drug addict and that Black was born

addicted to cocaine. Black never knew his father. He grew up in foster care. He

told the probation officer preparing the PSI that he “drank alcohol, smoked

marijuana, used cocaine and cocaine base almost on a daily basis.” 3

       Black had a history of mental illness. Psychological evaluations conducted

while he was before the Circuit Court as a juvenile revealed that he had an

Attention Deficit Hyperactivity Disorder and a Depressive Disorder, a “Full Scale

       1
          Black was born on September 19, 1989. These offenses took place on January 23 and
August 8, 2004, and May 1 and June 4, 2005.
       2
          The robbery occurred in November 2007, and the grand theft auto and marijuana
offenses occurred in August 2011.
       3
          See PSI at ¶ 61.
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IQ of 51,” was “intellectually functioning in the Mentally Retarded range,” and

was not competent to proceed. 4 He was placed on Adderall and Prozac and

received out-patient treatment at two local health centers.5 By January 2006, he

was declared competent to proceed. He was declared a juvenile delinquent, pled

guilty to the pending charges, and was placed on probation.

      In November 2008, after Black had been charged with robbery, the Circuit

Court ordered a psychological evaluation by James Larson, Ph.D. to determine

Black’s competency to proceed. A “Wechsler Intelligence Scale for Children” test

revealed that Black “earned a Verbal IQ score of 66, a Performance IQ score of 74,

and a Full Scale IQ Score of 67, indicating that his current level of intellectual

functioning is in the Mildly Retarded range.

      Dr. Larson noted that the increase in IQ testing measured [Black’s]
      “achievement” rather than “ability” and concluded that [he was] “still
      functionally illiterate.” [He] found [Black] not competent to proceed and
      recommended ‘the most appropriate treatment that would allow [Black] to
      attain competency is commitment to The Agency for Persons with
      Disabilities, where he can be treated in a program specifically designed to
      train Mentally Retarded Criminal Defendants at Florida State Hospital.

PSI at¶ 58 On May 14, 2009, the Circuit Court found Black competent to

proceed, Black plead guilty, and the court sentenced him probation. 6 Black entered


      4
          See PSI at ¶¶ 54-57.
      5
          See PSI at ¶ 57.
      6
          See PSI at ¶ 58.
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pleas of not guilty to Counts One and Two of the indictment, and he was released

under the supervision of the Probation Office pending trial.

       The PSI calculated the Guidelines range only for the Count One carjacking

offense; Count Two was excluded from the calculation pursuant to U.S.S.G. §

3D1.1, because the statutory basis for the violation, 18 U.S.C. § 924(c)(1)(A)(ii),

required a consecutive sentence of not less than seven years imprisonment, with a

maximum of life. The PSI used the guideline for the Count One offense, U.S.S.G.

§ 2B3.1, and fixed the total offense level at 22. Coupled with a criminal history

category of III, that offense level yielded a Guidelines range of 51 to 63 months

imprisonment for Count One. The PSI indicated two factors that might warrant a

departure from this range. The violent nature of Black’s extensive criminal history

might warrant an increase of his criminal history category pursuant to U.S.S.G. §

4A1.3. And his mental health condition might justify a decrease of the category

pursuant to U.S.S.G. § 5K2.13, on the theory that Black committed the carjacking

offense while suffering from a significantly reduced mental capacity and that

contributed substantially to his commission of the offense.7




       7
          The PSI noted three exceptions which would counsel against the downward departure:
1) the significantly reduced mental capacity was caused by the voluntary use of drugs; 2) the
actual or serious threat of violence indicates a need to protect the public from the defendant; or
3) the defendant’s criminal history indicates a need to incarcerate the defendant to protect the
public.
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      Black appeared before the District Court for sentencing on April 23, 2013.

After the proceeding began, the court stated that it wanted Black reevaluated given

his history of mental health problems. The evaluation was conducted, and Black

was found to have a mental disease or defect but that it did not render him unable

to understand the sentencing proceeding or assist in his defense. The court

reconvened the sentencing proceeding for September 27, 2013.

      The proceeding went forward as scheduled after both parties concurred with

the psychologist’s finding that Black was competent to proceed, and the court

agreed. Black had several objections to the PSI, and the court sustained some of

them. The court then announced that it would depart upward from the Guidelines

range based on its belief that Black’s criminal history category underrepresented

the severity of his criminal history and thus his potential for recividism. The court

sentenced Black to a prison term of 63 months on Count One and 120 months on

Count Two, to run consecutive to Count One. The court stated that it imposed a

longer total prison term for Black than his co-defendants because of his criminal

history, which was more serious than theirs.

                                         II.

      For the first time on appeal, Black argues that the District Court improperly

weighed his criminal history against the criminal histories of his codefendants

without providing him notice that his codefendants’ criminal histories would be
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considered. He contends that this rendered his sentences procedurally

unreasonable under Gardner v. Florida 8 because the court relied on undisclosed

facts in imposing its sentences. He additionally argues that his sentences---which

exceed the Guidelines range by approximately 80 months---are substantively

unreasonable in light of his mental and intellectual impairments, which have

always been a major cause of his unlawful conduct

      We review issues raised for the first time on appeal for plain error only.

United States v. Hoffman, 

, 1231-32 (11th Cir. 2013). We review

the reasonableness of a sentence under a deferential abuse of discretion standard.

Gall v. United States, 

, 41, 

, 591, 

(2007).

      In reviewing the reasonableness of a sentence, we first ensure that the

sentence was procedurally reasonable, meaning the district court properly

calculated the Guideline range, treated the Guidelines as advisory and not

mandatory, considered the factors of 18 U.S.C. § 3553(a), did not select a sentence

based on clearly erroneous facts, and adequately explained the chosen sentence.

128 S.Ct. at 597. Under plain error review, the defendant must show:

“‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” United States

v. Rodriguez, 

, 1298 (11th Cir. 2005) (citation omitted). We may

      8
          Gardner v. Florida, 

, 

, 

(1977).
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then exercise our discretion to notice a forfeited error, but only if “‘the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” 

Under the plain error standard, error affects

a defendant’s substantial rights where that error affected the outcome of the case.

United States v. Olano, 

, 734, 

, 1778, 

(1993). There can be no plain error where there is no statute, rule, or binding

precedent in this Court directly resolving the issue. United States v. Lejarde-Rada,

, 1291 (11th Cir. 2003).

      We have explained that Gardner stands for the proposition that capital

sentencing proceedings that permit consideration of secret information relevant to

the character and record of the offender violate the Eighth Amendment.

Muhammad v. Secretary, 

, 1073 (11th Cir. 2013), cert. denied, 

(2014). In O’Dell v. Netherland, 

, 162, 

,

1976, 

(1997), the Court stated that Justice White’s concurrence in

Gradner is the controlling opinion in that case. In Gardner, the defendant was

sentenced to death where information contained in the PSI that was held in

confidence by the state court and not disclosed to the defendant was used.

, 97 S.Ct. at 1202. The state court did not indicate

whether there was any special importance in the undisclosed portion, or that there

was any reason to withhold the information other than that it was customary

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practice for not disclosing the entire report to the parties. 

Court

held that such a procedure could not be used in a capital case because the

defendant did not have an opportunity to respond to the confidential information

admitted against him. 

97 S.Ct. at 1207 (White, J., concurring in the

judgment). The Court specifically stated that its conclusion rested squarely on the

predicate that a death sentence is qualitatively different from a sentence of

imprisonment of any length. 

97 S.Ct. at 1207 (White, J., concurring in

the judgment).

      Once we determine, as here, that a sentence is procedurally sound, we

examine whether the sentence was substantively reasonable in light of the totality

of the circumstances. Gall, 552 U.S. at 

. We may “set aside a

sentence only if we determine, after giving a full measure of deference to the

sentencing judge, that the sentence imposed truly is unreasonable.” United States

v. Irey, 

, 1191 (11th Cir. 2010) (en banc). We reverse only if “left

with the definite and firm conviction that the district court committed a clear error

of judgment in weighing the [18 U.S.C.]§ 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences dictated by the facts of the case.”

“The fact that the appellate court might reasonably have concluded

that a different sentence was appropriate is insufficient to justify reversal of the

district court.” Gall, 552 U.S. at 

. Under U.S.S.G. § 5G1.2(a),

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any statutory consecutive sentence is to be imposed independently from any other

term of imprisonment. U.S.S.G. § 5G1.2(a).

      The District Court was required to impose a sentence “sufficient, but not

greater than necessary, to comply with the purposes” listed in § 3553(a)(2),

including the need to reflect the seriousness of the offense, promote respect for the

law, provide just punishment for the offense, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2).

In imposing a particular sentence, the court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.

§ 3553(a)(1), (3)-(7).

      A sentence imposed well below the statutory maximum penalty is an

indicator of a reasonable sentence. United States v. Gonzalez, 

, 1324

(11th Cir. 2008). Although we do not apply a presumption of reasonableness for

sentences falling within the Guidelines range, “ordinarily we would expect a

sentence within the Guidelines range to be reasonable.” United States v. Talley,

, 787-88 (11th Cir. 2005).



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       Black’s sentences are procedurally reasonable. Although Black contends

that Gardner controls in this case, the Supreme Court specifically acknowledged

that its conclusion in Gardner was based on the fact that sentences of death are

qualitatively different than sentences of imprisonment, and Black had an

opportunity to respond to the District Court’s consideration of his codefendants’

criminal histories. Gardner, 430 U.S. at 

(White, J.,

concurring in the judgment). The court did not plainly err in considering his

codefendant’s criminal history as there is no controlling authority in support of

Black’s position. See 

.

       Although they are above his recommended guidelines range, Black’s

sentences are substantively reasonable. On Count One, he received a sentence that

was well below his statutory maximum penalty. See 

.

His mandatory consecutive sentence for Count Two was imposed independently

pursuant to U.S.S.G. § 5G1.2(a), and it was within his statutory range of 60 months

to life imprisonment. See 

. Further, the court

considered the PSI, the statements of the parties, and the § 3553(a) factors. The

court emphasized that Black’s criminal history was particularly egregious and

necessitated strong sentences to protect the public. 9 Although Black argues that


       9
         The robbery for which Black was convicted in June 1999 was actually a carjacking
committed by four males, all armed with firearms. PSI at ¶ 38. “The victim was struck in the
face several times by two of the males.” 

drove off with the victim’s car.
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his mental and intellectual impairments warranted leniency, the court properly

rejected this argument, finding that these problems exacerbated Black’s condition

by making it more likely that he would continue his behavior, which was supported

by his second psychological evaluation. Accordingly, Black has not carried his

burden of showing that his sentences were substantively unreasonable in light of

the record and the sentencing factors. See United States v. Tome, 

,

1378 (11th Cir. 2010). Accordingly, we affirm Black’s sentences as reasonable.

       AFFIRMED.




Twenty-four minutes later, the police stopped the care and Black fled the scene. Firearms were
found underneath the driver’s and front passenger’s seats. 

sentenced to 60 days in
the jail, with credit for the 60 days he’d served prior to pleading no lo contendere. 

2012 conviction for grand auto theft and possession of marijuana. Black
was caught driving a stolen automobile while in possession of marijuana. He was sentenced on
three counts on pleas of guilty to a total of six months with credit for 147 days served in pretrial
detention. 

40.
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MARTIN, J., concurring in result only:

      I agree that Mr. Black’s 183-month sentence of imprisonment should be

affirmed. I write separately to emphasize that I do not read the Majority’s

affirmance, or the District Court’s sentence, to be based on the mere existence of

Mr. Black’s intellectual disabilities. Generally, a defendant’s diminished capacity

may warrant a downward departure, not an upward departure. See United States

Sentencing Guidelines (USSG) § 5K2.13. Indeed, the Supreme Court has taught

us that criminal defendants with intellectual disabilities, such as Mr. Black, are not

as morally culpable as defendants without such disabilities. Cf. Atkins v. Virginia,

, 316, 

, 2249 (2002) (“[T]oday our society views

mentally retarded offenders as categorically less culpable than the average

criminal.”).

      Rather, I understand the District Court exercised its discretion to impose a

sentence above the guidelines for public safety reasons related to Mr. Black’s

lengthy and violent criminal history that were not taken into account in the

computation of his criminal history category. See Doc. 165 at 44. Mr. Black has a

number of very serious violent felony convictions committed when he was a

juvenile that were not scored, such as burglary of a dwelling, aggravated battery

with a deadly weapon, and separate batteries on correctional staff. See PSR ¶¶ 34–

37. The District Court’s discretionary upward departure (or variance) was

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reasonable in light of the seriousness of Mr. Black’s violent criminal history and

the court’s assessment of the likelihood of his recidivism.

         I also write separately to emphasize that although I agree the sentence

imposed was within the District Court’s broad discretion, the record could have

also supported a different sentence. Mr. Black’s advisory guideline range was 101

to 111 months of imprisonment (41 to 51 months for Count One plus 60 months

for Count Two). 1 Thus, his 183-month total sentence is above his recommended

guidelines, although I acknowledge it is well below the statutory maximum

sentence of life for his § 924(c) conviction. In light of the significant deference

that we owe to a District Court’s sentencing determination, I cannot say that Mr.

Black’s sentence is substantively unreasonable based on the particulars of his case

this case and the District Court’s thorough consideration of the factors of 18 U.S.C.

§ 3553(a). See Gall v. United States, 

, 51, 

, 597 (2007)

(“Regardless of whether the sentence imposed is inside or outside the Guidelines

range, the appellate court must review the sentence under an abuse-of-discretion

standard.”). The Supreme Court has explained there are practical reasons


         1
           During the sentencing hearing, the District Court sustained Mr. Black’s objection to the PSR’s two-level
increase for his role in the offense, reducing his total offense level to level 20, criminal history category III, resulting
in an advisory guideline range of 41 to 51 months for Count One. See Doc.165 at 7, 46. The District Court also
sustained Mr. Black’s objection with respect to his Count Two conviction under 18 U.S.C. § 924(c) for brandishing
a firearm based on Alleyne v. United States, ___ U.S. ___, 

(2013), and determined that his
minimum mandatory sentence for Count Two was 60 months. Doc. 165 at 5. Thus, his advisory guideline sentence
for Count Two was 60 months, consecutive to his sentence to Count One. See United States Sentencing Guideline
(USSG) § 2K2.4(b) (“[I]f 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.”).

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underlying the abuse of discretion standard that apply to our review of a District

Court’s sentencing determination:

      The sentencing judge is in a superior position to find facts and judge
      their import under § 3553(a) in the individual case. The judge sees
      and hears the evidence, makes credibility determinations, has full
      knowledge of the facts and gains insights not conveyed by the record.
      The sentencing judge has access to, and greater familiarity with, the
      individual case and the individual defendant before him than the
      Commission or the appeals court. Moreover, district courts have an
      institutional advantage over appellate courts in making these sorts of
      determinations, especially as they see so many more Guidelines cases
      than appellate courts do.

–52, 

–98 (quotation marks, internal citations,

footnote, and alterations omitted). All this is to say, the same deference that

requires us to affirm Mr. Black’s sentence could have supported a different

sentence, including a sentence within or even below the Guidelines. For example,

in my view, the District Court would not have abused its discretion had it weighed

the § 3553(a) factors differently and exercised its discretion to impose a lower

sentence based on Mr. Black’s diminished capacity. See USSG § 5K2.13. But the

fact that an appellate judge “might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the district court.”

, 128 S. Ct. at 597.




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