UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4283
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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
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