United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2851
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Darell Edward Davis-Bey, *
*
Defendant - Appellant. *
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Submitted: April 13, 2010
Filed: May 14, 2010
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Before LOKEN, HANSEN, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Pursuant to a plea agreement, Appellant Darell Davis-Bey pleaded guilty to two
counts of access device fraud. 18 U.S.C. §§ 1029(a)(2), (a)(3) & (b)(1). Each count
carried a statutory maximum ten-year term of imprisonment, and Appellant's
undisputed advisory Guidelines range was twenty-four to thirty months'
imprisonment. The district court1 varied upwardly from this advisory range and
sentenced him to concurrent sixty-month terms of imprisonment. Appellant argues
to our court that his sentence is procedurally and substantively unreasonable. He
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
argues specifically that the district court failed to consider the relative culpability of
his accomplice, created an unjustified sentencing disparity relative to his accomplice
(who received a term of probation), and made unsupported or inconsistent factual
determinations. We affirm.
I.
Appellant and his accomplice, Ryan Branson, used a victim's personally
identifying information to obtain $14,000 in credit at a Sears store. They immediately
used that credit to purchase $12,000 in gift cards and then attempted to use those gift
cards at a different Sears store. Due to suspicions surrounding the initial credit and
gift-card transactions, Sears cancelled the gift cards prior to the attempted use. Sears
notified police who arrested the men when they attempted to use the cards.
Police then discovered that the men possessed other victims' personally
identifying information as well as other fraudulently obtained credit materials. In fact,
the men had successfully used falsely obtained credit to spend $250 at an AT&T store.
There was no other actual loss resulting from their activities, but the intended loss was
substantially higher based on the credit account at Sears and other falsely obtained
credit.
Appellant entered into a plea agreement with the government in which the
government agreed not to seek a sentence above the Guidelines range. The probation
office prepared a presentence investigation report ("PSR") identifying no grounds for
an above-range sentence. At a first sentencing hearing, however, the district court
advised Appellant that it was considering an upward variance. The court continued
the hearing to provide Appellant an opportunity to submit a brief arguing against a
variance.
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Appellant submitted a brief, asserting that he was the less culpable member of
the two-man team and that he, in essence, was a "willing tool of a younger, more
sophisticated, criminal who used Appellant as the front man for fraudulent conduct."
Appellant described himself generally as a long-time drug addict and a person who
is easily led by others. Notwithstanding these assertions, Appellant lodged no
objections to the PSR, which stated, "According to the government, Appellant and
Branson are equally culpable." Appellant did not assert that he was entitled to a
mitigating role adjustment pursuant to United States Sentencing Guidelines § 3B1.2.
At a second sentencing hearing, Appellant admitted to being a drug addict who
used drugs over a span of more than thirty years. He stated that he was tired of being
an addict, wanted treatment, and wanted to end his pattern of drug abuse and crime.
He admitted culpability and stated that he blamed no one other than himself for his
decisions and actions. The district court noted that Appellant had an extensive
criminal history that reflected primarily thefts and other drug-related crimes consistent
with the actions of an addict. The court also noted that he committed several of his
earlier offenses after release from prior terms of incarceration. In fact, Appellant
committed his present offense at a time when he was less than one year into a three-
year term of probation related to a twelve-year suspended sentence for a state drug
conviction. The district court observed that this criminal history resulted in a total of
twenty-one criminal history points but noted, "what the Sentencing Guidelines don't
take into account is what I believe is the persistence and unrelenting criminal conduct
that you've engaged in."
The district court ultimately found that Appellant's extensive criminal history
coupled with the serious nature of his offense required an upward variance to sixty
months' imprisonment. In so holding, the district court referenced the thirty-month
term of incarceration provided by the top of the advisory Guidelines range. The court
indicated that prior terms of imprisonment longer than thirty months had not produced
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a deterrent effect on Appellant and that a longer term was therefore necessary "to
achieve the goals of punishment, deterrence, and incapacitation."
After the court announced the sentence, Appellant's counsel raised the issue of
the Federal Bureau of Prison's 500-hour Residential Drug Abuse Treatment Program
(the "500-hour Program"), asking the court to recommend Appellant for the program.
The court then made the requested recommendation and noted Appellant would not
be immediately eligible because of a waiting period. The court recommended that
Appellant "take advantage of the other drug programs the BOP offers that don't have
a waiting period." Prior to counsel's request, the district court had not referenced the
500-hour Program. In fact, at no time during the hearing did the court cite drug-
treatment eligibility as general reason for varying upwardly or as a specific reason for
selecting the sixty-month sentence.
Appellant's counsel then made arguments to preserve several issues for appeal.
He noted that Appellant's accomplice, Branson, received only probation for his
convictions stemming from the present offense conduct. Counsel argued that
Branson's and Appellant's respective sentences of probation and five-years'
incarceration represented an unwarranted sentence disparity.
Subsequently, in the written statement of reasons for Appellant's sentence, the
district court noted that a within-Guidelines-range sentence would not have been
sufficient to make Appellant eligible for the 500-hour Program.
II.
Appellant argues to our court that the district court failed to take into account
the sentencing disparity between himself and Branson. He also argues that the district
court erred in finding that a sixty-month sentence was necessary to make him eligible
for the 500-hour Program. Finally, he argues that the district court's sentence of sixty
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months is inconsistent with the finding that terms of incarceration longer than thirty
months failed to have a deterrent effect on him.
Regarding the purported disparity in sentences, Appellant's argument is
twofold. First, he argues the court erred by not finding him less culpable than
Branson. Second, he argues that even if the two men were equally culpable, the
disparity is unwarranted. Regarding the first argument, the district court accepted the
unchallenged PSR as fact, and the PSR stated the men were equally culpable.
Appellant makes no additional factual assertions that clearly establish him as less
culpable than Branson. He alleges essentially that Branson led him blindly through
the criminal activity and that Branson was the mastermind who orchestrated the credit
fraud and obtained victims' personally identifying information and false identification
materials. Appellant, however, does not deny that he clearly was the "front man" in
the dealings with Sears that led to the arrest, and it is apparent his participation was
integral to the scheme. The district court simply made no clearly erroneous factual
determinations nor abused its discretion in an assessment of culpability. See United
States v. Martinez-Hernandez, 593 F.3d 761, 762 (8th Cir. 2010) (reviewing factual
determinations for clear error and applications of 18 U.S.C. § 3553(a) for abuse of
discretion).
Further, any resulting disparity is not "unwarranted" because Appellant and
Branson were not similarly situated defendants. Appellant had twenty-one criminal
history points, well over the number needed to place him in the highest criminal
history category, Category VI. Branson had no criminal history and therefore zero
criminal history points. The sentencing statute, 18 U.S.C. § 3553(a)(6), requires that
courts consider "the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct." We have
expressly held, however, that it is not an abuse of discretion for a district court to
impose a sentence that results in a disparity between co-defendants when there are
"legitimate distinctions" between the co-defendants. United States v. Watson, 480
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F.3d 1175, 1178 (8th Cir. 2007). A criminal history difference of twenty-one points
is a "legitimate distinction."
Appellant's argument regarding eligibility for the 500-hour Program is without
merit and refuted by the record. The district court at no time indicated that it believed
the sixty-month sentence was necessary to make Appellant eligible for the 500-hour
Program. The court's only reference to drug treatment eligibility as a rationale for a
variance appears in the written statement of reasons, and it speaks generally of an
above-range sentence being required for eligibility. The statement of reasons does not
indicate that the need for treatment drove the specific selection of the sixty-month
sentence. Further, we have held that a sentencing court may increase a term of
incarceration to address rehabilitative objectives. See United States v. Hawk Wing,
433 F.3d 622, 630 (8th Cir. 2006).
Finally, Appellant's remaining argument is frivolous. He asserts that, because
the district court observed he was not deterred by prior sentences in excess of thirty
months, it was inconsistent to impose longer sentence in this case. We believe the
district court 's comment is clearly and simply an explanation for why a within-range
or shorter sentence would have been inadequate in this case. The district court did not
abuse its discretion.
We affirm the judgment of the district court.
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