Filed: Jun. 16, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5219 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DIVINE JUSTICE REDDICK, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00130-FL-1) Argued: May 14, 2010 Decided: June 16, 2010 Before MOTZ, KING, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Stephen Clayton
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5219 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DIVINE JUSTICE REDDICK, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00130-FL-1) Argued: May 14, 2010 Decided: June 16, 2010 Before MOTZ, KING, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Stephen Clayton G..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5219
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DIVINE JUSTICE REDDICK,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00130-FL-1)
Argued: May 14, 2010 Decided: June 16, 2010
Before MOTZ, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Anne Margaret
Hayes, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant. John
Stuart Bruce, Acting United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2008, Divine Justice Reddick was convicted and sentenced
in the Eastern District of North Carolina for two offenses
arising from his role in an armed bank robbery. Reddick pursues
two appellate challenges to his aggregate sentence of 200
months. First, Reddick maintains that, in departing upward
based on the inadequacy of his criminal history category, the
district court procedurally erred by failing to comply with
section 4A1.3 of the Sentencing Guidelines. Second, Reddick
contends that the court substantively erred in departing upward
to the sentence that it imposed. As explained below, we reject
both contentions and affirm.
I.
On May 15, 2008, Reddick was charged in a three-count
indictment with putting in jeopardy the life of another by using
a dangerous weapon in a bank robbery, in contravention of 18
U.S.C. § 2113(d) (Count One); using and carrying a firearm
during and in relation to a crime of violence, in contravention
of 18 U.S.C. § 924(c)(1)(A) (Count Two); and being a felon in
possession of a firearm, in contravention of 18 U.S.C.
§ 922(g)(1) (Count Three). On September 3, 2008, Reddick
pleaded guilty to Counts One and Two pursuant to a plea
agreement that reserved his right to appeal any sentence in
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excess of the advisory Guidelines range. Pursuant to the plea
agreement, the prosecution dismissed Count Three.
On December 4, 2008, Reddick’s Presentence Investigation
Report (the “PSR”) was submitted to the district court. On
Count One, the PSR recommended a Guidelines range of 51 to 63
months of imprisonment, predicated on a total offense level of
20 and a criminal history category of IV. With respect to Count
Two, the PSR recognized that the applicable Guidelines sentence
was the statutory minimum consecutive term of 84 months. See 18
U.S.C. § 924(c)(1)(A)(ii); USSG § 2K2.4(b).
In the “Impact of the Plea Agreement” section of the PSR,
the probation officer explained that the prosecution’s dismissal
of Count Three significantly impacted Reddick’s advisory
Guidelines range. Had Reddick been convicted on Count Three,
the PSR explained, “he would have been designated as an Armed
Career Criminal and would be subject to a statutory penalty of
[180 months] to Life on that count and his criminal history
category would be VI rather than IV.” J.A. 93. * Under that
scenario, Reddick would have been subject to (1) a Guidelines
range of 70 to 80 months on Count One; (2) a consecutive 84-
month statutory minimum sentence on Count Two; and (3) a
*
Citations herein to “J.A. ___” refer to the Joint Appendix
filed by the parties in this appeal.
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concurrent 180-month statutory minimum sentence on Count Three.
Thus, had he been convicted on Count Three, Reddick would have
faced a statutory minimum of 264 months. Because Reddick’s
advisory Guidelines range (51 to 63 months on Count One and a
minimum of 84 months on Count Two) fell well below 264 months,
the PSR specified that the district court “may wish to consider
an upward departure pursuant to 4A1.3 (Departures Based on
Inadequacy of Criminal History Category) and 5K2.21 (Dismissed
and Uncharged Conduct) based upon the dismissal of Count
[Three].” Id. at 94.
At the sentencing hearing conducted in December 2008, the
district court expressed concern with the discrepancy between
the advisory Guidelines range calculated by the PSR and the
minimum of 264 months that would have accompanied a conviction
on Count Three. In response, the Government acknowledged that,
when it agreed to dismiss Count Three, it had miscalculated
Reddick’s predicate convictions and did not recognize that he
would have qualified as an armed career criminal had he been
convicted on Count Three. The prosecution maintained, however,
that a within-Guidelines sentence on Count One (51 to 63
months), plus 84 months on Count Two, would sufficiently serve
the sentencing factors of 18 U.S.C. § 3553(a).
Nevertheless, the district court imposed a 200-month
sentence, consisting of an above-Guidelines sentence of 116
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months on Count One and a consecutive 84 months on Count Two.
The court relied on two separate Guidelines provisions to
support its upward departure. First, it applied Guidelines
section 4A1.3, which authorizes an upward departure when, inter
alia, a defendant’s criminal history category substantially
underrepresents the likelihood that he will commit other crimes.
See USSG § 4A1.3(a)(1). Second, the court applied Guidelines
section 5K2.21, which authorizes an upward departure that
reflects the actual seriousness of the defendant’s offense based
on conduct underlying a charge dismissed under a plea agreement.
Notably, the court did not specify the extent of departure
attributable to each Guidelines provision, nor did it indicate
the Guidelines range to which it was departing. The court then
assessed and applied the § 3553(a) sentencing factors,
concluding that a sentence within the Guidelines range as
originally calculated would be insufficient to achieve the
purposes of sentencing. Thus, it imposed an aggregate sentence
of 200 months.
Reddick has filed a timely notice of appeal, and we possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
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II.
We review a sentence imposed by a district court for
reasonableness, applying the deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 46 (2007). This
standard of review encompasses both procedural and substantive
reasonableness.
Id. at 51. We first ensure that the court
committed no significant procedural error, “such as failing to
calculate (or improperly calculating) the Guidelines range.”
Id. If there is no procedural error, we review the sentence for
substantive reasonableness, taking the “totality of the
circumstances” into account to determine whether the court
“abused its discretion in concluding that the sentence it chose
satisfied the standards set forth in § 3553(a).” United States
v. Mendoza-Mendoza,
597 F.3d 212, 216 (4th Cir. 2010).
III.
A.
Reddick first challenges his sentence as procedurally
unreasonable, maintaining that the district court erred in
departing upward on Count One by failing to apply the
incremental approach mandated by Guidelines section 4A1.3. That
provision, entitled “Departures Based on Inadequacy of Criminal
History Category,” authorizes a sentencing court to depart
upward “[i]f reliable information indicates that the defendant’s
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criminal history category substantially under-represents the
seriousness of [his] criminal history or the likelihood that
[he] will commit other crimes.” USSG § 4A1.3(a)(1). After the
sentencing court determines that a section 4A1.3 departure is
warranted, it is obliged to depart on an incremental basis,
moving “horizontally across successive criminal history
categories up to category VI,” and, if that category is
inadequate, vertically “to successively higher offense levels
until it finds a guideline range appropriate to the case.”
United States v. McNeill, 598 F.3d 161, 166 (4th Cir. 2010); see
also United States v. Harrison,
58 F.3d 115, 118 (4th Cir.
1995). In applying this incremental approach, the court may
“move to successively higher categories only upon finding that
the prior category does not provide a sentence that adequately
reflects the seriousness of the defendant’s criminal conduct.”
United States v. Cash,
983 F.2d 558, 561 (4th Cir. 1992).
Reddick contends that, in imposing an above-Guidelines
sentence on Count One, the district court failed to employ the
incremental approach required by section 4A1.3. He maintains
that the court moved directly from the Guidelines range
corresponding to an offense level of 20 and a criminal history
category of IV (51 to 63 months) to the range applicable to an
offense level of 24 and a criminal history category of VI (100
to 125 months) without first assessing whether the intermediate
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criminal history category of V or the intermediate offense
levels of 21, 22, or 23 adequately reflected the seriousness of
his criminal conduct. Accordingly, Reddick contends that the
court procedurally erred and that his sentence must be vacated.
The fundamental flaw with this contention is that, even if
the district court failed to apply the incremental analysis of
Guidelines section 4A1.3, any such error is harmless. See
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010)
(concluding that procedural sentencing errors are subject to
harmless error review). Notably, we have recognized that when
“a district court offers two or more independent rationales for
its deviation, an appellate court cannot hold the sentence
unreasonable if the appellate court finds fault with just one of
these rationales.” United States v. Evans,
526 F.3d 155, 165
(4th Cir. 2008). Here, in addition to Guidelines section 4A1.3,
the district court also relied on section 5K2.21, which
authorizes an upward departure “to reflect the seriousness of
the offense based on conduct (1) underlying a charge dismissed
as part of a plea agreement . . . and (2) that did not enter
into the determination of the applicable guideline range.”
Importantly, section 5K2.21 does not require a sentencing court
to apply any sort of incremental analysis when departing upward,
and Reddick does not contend that the court otherwise erred in
applying that provision. In other words, the court offered a
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separate and procedurally sound rationale for its upward
departure from Reddick’s advisory Guidelines range on Count One.
Thus, even if the court erred in departing under section 4A1.3,
Reddick’s aggregate sentence of 200 months is otherwise
procedurally reasonable. Evans, 526 F.3d at 165.
B.
Reddick next contends that his sentence is substantively
unreasonable. The district court imposed a 116-month sentence
on Count One — notwithstanding the advisory Guidelines range of
51 to 63 months — and, as mandated by statute, also imposed a
consecutive 84 months on Count Two, for an aggregate sentence of
200 months. Reddick maintains that the totality of the
circumstances fail to support such a deviation from the advisory
Guidelines range, rendering the court’s sentencing decision an
abuse of discretion.
In sentencing Reddick, the district court carefully
assessed the sentencing factors set forth in 18 U.S.C.
§ 3553(a). It first determined that the seriousness of the
armed bank robbery underlying Reddick’s convictions warranted an
above-Guidelines sentence, as did his criminal history, which
consisted of three prior armed robberies. The court also found
that Reddick — who had committed the offense of conviction
within six months of the termination of his parole on a prior
armed robbery conviction — was a “repeat offender, a recidivist”
9
who lacked “respect for the law.” J.A. 71. Predicated on these
factors, the court concluded that an above-Guidelines sentence
was necessary to “promote respect for the law” and to “protect
the public from [Reddick].” Id. at 70. In explaining its
sentencing decision, the court emphasized that a 200-month
sentence was commensurate with the statutory minimum of 264
months that Reddick would have received if he had been convicted
on Count Three. Accordingly, the court concluded that an
aggregate above-Guidelines sentence of 200 months would achieve
the sentencing goals of § 3553(a).
In these circumstances, Reddick’s sentence must be deemed
substantively reasonable. The district court, having carefully
and thoroughly applied the § 3553(a) sentencing factors, did not
abuse its substantial discretion in concluding that a within-
Guidelines sentence was insufficient. And, although its
deviation from Reddick’s Guidelines range was significant, the
court offered ample justification for the aggregate sentence
that it imposed. Accordingly, the court did not substantively
err in imposing its sentence.
IV.
Pursuant to the foregoing, we reject each of Reddick’s
contentions and affirm.
AFFIRMED
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