United States v. Garrett

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4283

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

DESMOND LAMONT GARRETT,

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-00175-FL-1)

Submitted: March 30, 2010 Decided: June 4, 2010

Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina,
for Appellant. George E. B. Holding, United States Attorney,
Anne M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Desmond Lamont Garrett pled guilty to armed bank

robbery, 18 U.S.C. § 2113(a), (d) (2006), and was sentenced to a

term of 150 months imprisonment, which was an upward departure

from the guideline range pursuant to U.S. Sentencing Guidelines

Manual § 4A1.3, p.s. (2008). Garrett appeals his sentence,

contending that the departure resulted in an unreasonable

sentence. He also seeks to challenge the district court’s

enhancement of his offense level for physical restraint of a

person during the robbery and for use of a minor in the

commission of the robbery. USSG §§ 2B3.1(b)(4)(B), 3B1.4. The

government asserts that these claims should be dismissed

because, under the terms of his plea agreement, Garrett waived

the right to raise on appeal any issues relating to the

establishment of the advisory guideline range. We affirm in

part and dismiss in part.

Before Garrett was sentenced, the government moved for

an upward departure under § 4A1.3(a)(1), arguing that category

III seriously under-represented the seriousness of Garrett’s

criminal history or the likelihood that he would commit further

crimes. Information in the presentence report disclosed that

Garrett had a prior federal conviction for armed bank robbery.

While serving his sentence, he incurred fifty-five disciplinary

infractions, including multiple infractions for each of the

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following: possession of a dangerous weapon; threatening bodily

injury; assault without serious injury; interfering with

security devices; refusing to obey an order; refusing to take a

drug test; destruction of property; setting fires; and

possession of intoxicants. Within six months of his release,

while he was on supervised release, Garrett committed the

instant offense, another armed bank robbery.

At sentencing, the district court adopted the

probation officer’s recommendation for a total offense level of

29, which included increases for physical restraint of several

victims during the robbery and for use of a minor as an

accomplice. Garrett had six criminal history points, which

placed him in criminal history category III. The advisory

guideline range was 97-121 months. The court decided that a

departure was justified because a sentence within the guideline

range was insufficient to protect the public, given Garrett’s

high likelihood of recidivism. The court focused on Garrett’s

prior federal conviction for armed bank robbery, the fifty-five

infractions he incurred while serving his prior sentence, many

of which the court found were for “prior similar conduct,” and

the relatively short time he spent on supervised release before

he committed the instant offense. The court also decided that

Garrett was in need of mental health treatment and intensive

drug treatment. The court determined that a departure to

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category IV would be insufficient, and departed to category V,

which yielded a guideline range of 130-162 months. The court

selected a mid-range sentence of 150 months.

We review a sentence for reasonableness under an abuse

of discretion standard. Gall v. United States, 552 U.S. 38, 51

(2007). This review requires consideration of both the

procedural and substantive reasonableness of a sentence. Id.

We first determine whether the district court properly

calculated the defendant’s advisory guideline range, considered

the § 3553(a) factors, analyzed the arguments presented by the

parties, and sufficiently explained the selected sentence. Id.;

see also United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009). If no significant procedural error is found, we review

the substantive reasonableness of the sentence, “taking into

account the totality of the circumstances, including the extent

of any variation from the Guidelines range.” Gall, 552 U.S. at

51.

Garrett states that he does not dispute the extent of

the departure, but contends that the district court’s basis for

a departure was unjustified--a procedural error. He asserts

incorrectly that the court’s only basis for departing was the

inadequacy of his criminal history. In fact, the court relied

on the need to protect the public because of the likelihood that

Garrett would commit future crimes. Garrett also argues that

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the district court’s consideration of his prison infractions

rendered the departure unreasonable because they are not the

equivalent of crimes. However, we have previously approved the

consideration of prison infractions as evidence of a likelihood

of recidivism. See United States v. Heath, 559 F.3d 263, 266-67

(4th Cir.) (departure justified by evidence of defendant’s

“tendency toward recidivism,” including prison infractions),

cert. denied, 559 F.3d 263 (2009). Last, Garrett argues that

the district court abused its discretion to the extent that it

based the departure on his uncounted juvenile adjudications.

This claim is meritless because the district court did not rely

on Garrett’s juvenile record when it explained the basis for the

departure.

Garrett also contends that the district court failed

to correctly calculate his guideline range. However, Garrett is

foreclosed from raising this issue because, under the terms of

his plea agreement, he waived his right to appeal “any issues

that relate to the establishment of the advisory Guideline

range,” reserving only the right to appeal a sentence above the

guideline range. In this appeal, Garrett does not attempt to

argue that the waiver is not enforceable; indeed, he does not

address the waiver at all. Our review of the record discloses

that the waiver was knowing and intelligent, and is thus

enforceable.

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We conclude that Garrett has not identified any

significant procedural error. The court did not select the

sentence based on clearly erroneous facts or improper criteria

and it considered the § 3553(a) factors, in particular the need

to protect the public, but also the nature and circumstances of

the offense and the need to provide Garrett with needed medical

care. The court considered whether a sentence within criminal

history category IV would be adequate and decided that it would

not. Taking into account the totality of the circumstances and

giving “due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the

variance,” Gall, 522 U.S. at 51, we are satisfied that the

sentence was not substantively unreasonable. Therefore, the

district court did not abuse its discretion in sentencing

Garrett.

We therefore affirm the sentence imposed by the

district court. We dismiss that portion of the appeal in which

Garrett challenges the district court’s calculation of the

guideline range. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED IN PART;
DISMISSED IN PART