United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2007 Decided April 8, 2008
No. 06-3048
UNITED STATES OF AMERICA,
APPELLEE
v.
VINCENT E. REED,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00560-01)
Adam H. Kurland, appointed by the court, argued the cause
for the appellant.
Patricia A. Heffernan, Assistant United States Attorney,
argued the cause for the appellee. Jeffrey A. Taylor, United
States Attorney, and Roy W. McLeese III and Julieanne
Himelstein, Assistant United States Attorneys, were on brief.
Before: HENDERSON, TATEL and KAVANAUGH, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Vincent E.
Reed was tried by a jury and convicted of armed bank robbery,
18 U.S.C. § 2113(a), (d). He was also convicted of two
violations of the District of Columbia Criminal Code namely,
armed carjacking, D.C. Code § 22-2803(a)(1), (b)(1), and
destruction of property, D.C. Code § 22-303. The district court
sentenced Reed to 300 months’ imprisonment on the armed
bank robbery, 180 months on the armed carjacking and 102
months on the destruction of property count, all to be served
concurrently. Judgment 2. Reed appeals on three grounds,
contending that (1) the court erred by admitting his allegedly
involuntary confession into evidence; (2) in her closing
argument the prosecutor improperly compared him to Jesse
James and Billy the Kid and vouched for the credibility of a
Government witness; and (3) the court mischaracterized his
criminal history and failed to consider mitigating evidence
during sentencing. Appellant’s Br. 6–8 We affirm both Reed’s
conviction and his sentence.
I.
On December 1, 2003, at approximately 9:30 a.m., a “tall,
dark-skinned” man wearing a “hooded jacket” and “skull cap”
with “ski mask” holes cut into it entered the Bureau of
Engraving and Printing Federal Credit Union (credit union)
located in Leahy Hall on the campus of The Catholic University
of America (CUA). 12/12/05 Tr. 29, 51–52, 103–06, 135–36.
He pointed a gun at the teller and demanded money. Id. at
103–05, 135–36. A second man then “rushed in the door” and,
at the masked man’s direction, closed the door and shut the
blinds. Id. at 110–11. The second man was a “medium-brown
skinned” man in his “late 30's or early 40's.” Id. at 113. He did
not wear a mask or carry a gun. Id. at 112–13.1 The masked
1
A bank customer, Sarah Johnson, observed the men in the
hallway outside the credit union just before the robbery. During a
3
man began collecting cash and money orders from behind the
counter. Id. at 113–15. When he had finished, the two rushed
from the credit union. Id. at 69, 116. The teller, Sallie Lombre,
then activated an alarm. Id. at 116–17. Robert Miller, a
customer who was waiting outside the credit union, saw them
flee. Id. at 67–69. He described one as wearing a “ski mask.”
Id. at 70. Miller went to the CUA security office, located some
20 feet from the credit union, to report the robbery; the CUA
dispatcher had already heard the alarm and radioed for help. Id.
at 41–44, 48, 74–75. Lombre watched from a window as the
armed man “ran” across the lawn behind Leahy Hall.2 Id. at
121–23. He escaped with $25,683. Id. at 128–29.
Responding to the dispatcher’s call, CUA Officer Marvin
Dicks immediately drove his unmarked van towards Leahy Hall
where he saw two men who fit the description of the suspects
walking at a “very fast pace.” Id. at 204, 207–09. There was no
one else in the area. Id. at 209. He watched as one of the men
removed the “hat or mask” from his head and dropped it near
Hartke Theater. Id. at 210–11. At about the same time, CUA
Officers James Lee and Maurice Cartledge arrived in a marked
CUA patrol car. 12/13/05 Tr. 131–35. The two officers
observed the two men walking at a “medium-to-fast pace”
between Leahy Hall and Hartke Theater. Id. at 135–36. When
the two men saw the CUA officers, one pulled the hood of his
jacket over his head “like he didn’t want to be seen” and
continued on Harewood Road. Id. at 136–37, 140. The two
photo line-up Johnson identified the second man as Reed’s brother,
Ronald Reed. 12/12/05 Tr. 176, 178–81, 187–89; 12/14/05 Tr. 49–50.
2
Michael Paolantonio, a CUA student, saw the two as they
“quickly” walked away from Leahy Hall. 12/12/05 Tr. 191, 195. One
wore “a black ski cap, like a black woolen winter hat” on his head. Id.
at 196. He lost sight of them as they rounded the corner of Hartke
Theater. Id. at 203.
4
officers jumped from the car and arrested the second man, id. at
138, subsequently identified as Ronald Reed, Vincent Reed’s
brother. 12/14/05 Tr. 43.
CUA Officer Julius Pittman also responded to the vicinity of
Harewood Road and Taylor Street. 12/13/05 Tr. 56–58. There
he saw a man fitting one suspect’s description “walking real fast
up the street with his hood over his head.” Id. at 59. From a
distance of “about twenty feet,” Pittman said, “Campus police.
Hold it right there.” Id. at 62, 64. The man looked up and the
hood fell from his head. Id. at 65. Pittman recognized the man
as the appellant, a man named “Vincent,” who formerly worked
in housekeeping at CUA. Id. at 65–66. The man then looked
toward Officer Dicks, who had been following him since
observing him discard the ski mask near Hartke Theater.
12/12/05 Tr. 211–14. Dicks also recognized him, remembering
that he was “a former employee of the university.” Id. at 214.
At about the same time, Officer Lee, who had driven north on
Harewood Road, stopped near Reed and looked at him from
“about 16 or 17 feet” away. 12/13/05 Tr. 141–42. He
“immediately” recognized Reed as a CUA custodial employee
whom he had greeted on several occasions. Id. at 142–43. Lee
said, “Man, I know you. Why don’t you put the gun down and
turn yourself in.” Id. at 143.
Reed then pulled a “short-nosed revolver” from his jacket
and tried to stop passing cars. 12/12/05 Tr. 215–16, 218;
12/13/05 Tr. 66–71. After several unsuccessful attempts, Reed
headed to the intersection of Harewood Road and Taylor Street.
12/13/05 Tr. 148; 12/12/05 Tr. 218–19. Officer Lee followed
Reed in his vehicle. 12/12/05 Tr. 224; 12/13/05 Tr. 148–49.
James Smith, a landscaper, was stopped in his pickup truck at
the traffic light at the Harewood/Taylor intersection. 12/12/05
Tr. 219–20; 12/13/05 Tr. 94–97. Reed jumped into the bed of
Smith’s truck, pointed his gun at Smith and ordered Smith to
5
drive away.3 12/13/05 Tr. 100–01. Instead, Smith fled the
truck. Id. at 103. Reed jumped from the truck bed, got into the
cab and began driving away. 12/12/05 Tr. 220. Lee attempted
to block his path; however, the truck Reed was driving rammed
Lee’s vehicle, jumped the curb and then sped away. 12/13/05
Tr. 77–79, 107–08.
Later that afternoon, an FBI agent discovered Smith’s truck
in the 800 block of Quincy Street, N.W. 12/13/05 Tr. 53–54.
FBI agents also searched the area between Leahy Hall and
Hartke Theater and discovered a black skullcap with two holes
cut in it, a knife and a bag of money orders. 12/12/05 Tr. 10,
13–14, 31–34. Subsequent testing revealed that Reed’s DNA
was on the cap. 12/14/05 Tr. 142–50.
The next day, at approximately 3:15 p.m., officers of the
Metropolitan Police Department (MPD) arrested Reed at a local
motel. 12/7/05am Tr. 11; 12/13/05 Tr. 188–95. Reed was in
possession of approximately $1245 in cash. 12/14/05 Tr. 91,
165. The officers took Reed to police headquarters and, at
approximately 6:15 p.m., seated him in an interview room.
12/1/05 Tr. 39; 12/7/05am Tr. 11–12. MPD Detective Gail
Brown advised Reed that he was under arrest and read him his
Miranda rights. 12/14/05 Tr. 68–71. Reed agreed to speak with
Detective Brown and FBI Special Agent Paul Timko. Id. Reed
initially denied committing the robbery—explaining that he had
been at CUA smoking crack. 12/14/05 Tr. 72–73. Agent Timko
and Detective Brown told Reed that several witnesses had seen
him commit the carjacking. 12/7/05am Tr. 16. Reed then
confessed to both the credit union robbery and the carjacking.
12/14/05 Tr. 79–87.
3
Smith described the carjacker as a “black man, about six feet tall,
about 180 pounds, with short hair” and “a two-day growth of facial
hair.” 12/13/05 Tr. 108, 114.
6
The Government charged Reed with one count each of
armed bank robbery (18 U.S.C. § 2113(a), (d)), armed
carjacking (D.C. Code § 22-2803(a)(1), (b)(1)), destruction of
property (D.C. Code § 22-303) and assault with a dangerous
weapon (D.C. Code § 22-402). See Superseding Indictment 1.
Reed moved to suppress his confession, see Mot. to Suppress 1,
which motion was denied. 12/7/05pm Tr. 33. After a jury trial,
Reed was convicted on the bank robbery, carjacking and
destruction of property counts. See 12/15/05 Tr. 57–58. He was
acquitted of assault with a dangerous weapon. See id. The
district court sentenced Reed to concurrent prison terms of 300
months for armed bank robbery, 180 months for armed
carjacking and 102 months for destruction of property.
Judgment 2.
II.
Reed first argues that his confession “was, under the totality
of the circumstances, involuntary[] and should have been
suppressed.” Appellant’s Br. 8 (capitalization altered). Second,
Reed argues that the prosecutor made prejudicial statements
during closing argument. Id. at 11. Finally, Reed argues that his
sentence was unreasonable and he seeks a remand for
resentencing before a different judge. Id. at 18.
A. Confession
Reed claims that “in the several days [before] his arrest,” he
“ingested crack cocaine and alcohol . . . and was likely suffering
some withdrawal symptoms at the time he purportedly”
confessed. Appellant’s Br. 8. He argues that “[h]e exhibited
paranoia when he was arrested” and that the police
“intentionally took advantage of [his] intellectually vulnerable
[state]” by “plac[ing him] in a cold and uncomfortable room”;
by “forc[ing him] to take off his clothes and . . . put on a
jumpsuit without underwear”; and by “str[iking him] in the face
at least once after he was placed under arrest.” Id. at 8–9
7
(capitalization altered) (record citations omitted). He concludes
that “this adroit psychological pressure[] . . . amount[ed] to
coercive governmental action.” Id. at 9.
In determining the voluntariness of a confession, we review
the district court’s underlying factual findings for clear error;
however, “the ultimate issue of ‘voluntariness’ is a legal
question” which we review de novo. United States v. Baird, 851
F.2d 376, 379–80 (D.C. Cir. 1988) (quoting Miller v. Fenton,
474 U.S. 104, 110 (1985)); see also United States v. West, 458
F.3d 1, 13 (D.C. Cir. 2006).4 “A confession is inadmissible as
a matter of due process if under the totality of the circumstances
it was involuntarily obtained . . . .” United Sates v. Bradshaw,
935 F.2d 295, 299 (D.C. Cir. 1991). Although the defendant’s
mental condition can be a factor in the “‘voluntariness’
calculus,” “this fact does not justify a conclusion that a
defendant’s mental condition, by itself and apart from its
relation to official coercion, should ever dispose of the inquiry.”
Colorado v. Connelly, 479 U.S. 157, 164 (1996). “[C]oercive
police activity is a necessary predicate to the finding that a
confession is not ‘voluntary’ within the meaning of the Due
Process Clause of the Fourteenth Amendment.” Id. at 167. The
Government must establish the voluntariness of a confession by
a preponderance of the evidence. Id. at 168.
4
The Government asserts that Reed never claimed before the
district court that his confession was the product of withdrawal
symptoms, “‘intellectual[] vulnerab[ility]’” or coercive interrogation
techniques and that, as a result, the claims have been waived. Gov’t.
Br. 25–26 (citing United States v. Redman, 331 F.3d 982, 986–88
(D.C. Cir. 2003)). We do not agree. The Government’s arguments
made during the suppression hearing manifest that the claims were
before the district court. See 12/7/05pm Tr. 26–27 (discussing Reed’s
mental state and conditions of interrogation).
8
Given the totality of the circumstances, we do not believe
Reed’s confession was the product of police coercion. Reed
alleges that the police acted inappropriately when they put him
in a cold room without a blanket, struck him in the face at least
once and put him in a jumpsuit without underwear. The record
contains conflicting testimony with regard to the first two
allegations. At the suppression hearing Agent Timko testified
that Detective Brown gave Reed a blanket. 12/1/05 Tr. 47.
Agent Timko also testified that Reed had not been hit.
12/7/05am Tr. 15. Assessing the conflicting testimony, the
district court credited Timko over Reed. See, e.g., 12/7/05pm
Tr. 32–33 (“even if I were to accept [Reed’s] testimony”
(emphasis added)).5 Nothing in the record persuades us that the
district court’s decision was incorrect. See United States v.
Broadie, 452 F.3d 875, 880 (D.C. Cir. 2006) (district court
credibility determination “‘entitled to the greatest deference
from this court on appeal.’” (quoting United States v. Hart, 324
F.3d 740, 747 (D.C. Cir. 2003))). Regarding Reed’s third
objection, we do not believe that his donning a jumpsuit without
underwear, by itself, rises to the level of “coercive police
activity” that renders a confession “not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth
Amendment.” Connelly, 479 U.S. at 167. Accordingly, we
conclude that Reed’s confession was voluntary.
B. Prejudicial Statements
Reed next objects to two allegedly prejudicial statements
made by the prosecutor during closing argument. He first
challenges the prosecutor’s comparison of him to Jesse James
and Billy the Kid. The prosecutor stated: “This is a classic, yet
5
The fact that the district court discredited Reed’s claim that he
was struck is hardly surprising given his repeated claims that at the
time he was experiencing “paranoid” delusions and thought people
were trying to hurt or kill him. See 12/7/05am Tr. 45.
9
simple, bank heist. It is not Jessie [sic] James. It is not Billy the
Kid. It is Vincent Reed and Ronald Reed, the Reed Brothers.”
12/15/05 Tr. 12. Reed argues:
At first blush, these outlaws may be thought of as
romantic characters drawn from old West folklore—but
they were real serial murderers. Jesse James was an
ardent Confederate sympathizer, serial bank robber,
serial murderer and infamous American outlaw. Billy
the Kid, according to legend, killed 21 men, one for each
year of his life. Reality was just as grim. In 1878, he
killed two deputies and engaged in large scale cattle
rustling—a major criminal scourge of the time. He was
sentenced to death, escaped and was finally shot and
killed by Sheriff Pat Garrett.
Appellant’s Br. 11–12 (footnote omitted). Reed argues that
courts “have consistently reversed convictions based on
inflammatory remarks by the prosecution equating a defendant
with notorious criminals.” Appellant’s Br. 13 (citing Shurn v.
Delo, 177 F.3d 662, 665 (8th Cir. 1999) (reversing conviction
after prosecutor alluded to Charles Manson, Richard Speck and
Son of Sam)); United States v. Steinkoetter, 633 F.2d 719, 720
(6th Cir. 1980) (reversing conviction after prosecutor likened
defendant to Pontius Pilate and Judas Iscariot); Mathis v. United
States, 513 A.2d 1344, 1347 (D.C. 1986) (reversing conviction
after prosecutor referred to defendant as “the Godfather”)).
Reed also objects to a statement made by the prosecutor
vouching for Agent Timko’s credibility. Appellant’s Br. 15.
She asked the jury: “Do you believe Agent Timko? Is defense
counsel saying that agent Timko is making all this up and that
none of this happened . . . ? Would agent Timko risk his entire
career?” 12/15/05 Tr. 49.
Reed concedes that he did not object to these statements
during closing argument and, therefore, they are reviewable only
for plain error. See United States v. Venable, 269 F.3d 1086,
10
1089 (D.C. Cir. 2001). Under this standard, Reed must show (1)
that the prosecutor’s remarks constituted error, (2) that the error
was “‘plain’” and (3) and that the error “‘affect[ed] substantial
rights.’” Id. (quoting Johnson v. United States, 520 U.S. 461,
467 (1997)) (alterations added). “The third condition ‘in most
cases . . . means that the error must have been prejudicial: It
must have affected the outcome of the district court
proceedings.’” Id. (quoting United States v. Olano, 507 U.S.
725, 734 (1993)) (alteration in Venable). “In evaluating the
potential prejudice from an improper statement in closing
argument, this court typically looks to the centrality of the issue
affected, the severity of the prosecutor’s misconduct, the steps
taken to mitigate the misconduct, and the closeness of the case.”
Id. at 1091 (emphasis added). It is “‘the defendant rather than
the Government who bears the burden of persuasion with
respect to prejudice.’” Id. at 1089 (quoting Olano, 507 U.S. at
734). Even if the defendant meets this burden, the reviewing
“court may then exercise its discretion to notice a forfeited error,
. . . only if . . . the error ‘seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’” Id.
(quoting Johnson, 520 U.S. at 467) (alteration in Venable).
Because the evidence against Reed was overwhelming, we
do not believe that either of the challenged statements
constitutes plain error.6 From the moment the bank robbery
began until the carjacking, the two men were in the continuous
view of witnesses. Lombre, the bank teller, and Miller, the
customer, watched the two flee from Leahy Hall. Once outside,
6
The prosecutor’s allusion to Jesse James and Billy the Kid, if
error, constitutes harmless error at most. The statement regarding
Timko’s credibility does constitute improper “vouching.” See, e.g.,
United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995) (prosecutor’s
statement that police witnesses would “jeopardize their careers and
risk criminal prosecution” if they were untruthful constitutes improper
vouching).
11
they were seen by Paolantonio, the CUA student, who watched
them as they headed toward Harewood Road. See supra note 2.
There they were spotted by CUA Officer Dicks who watched as
Reed removed his black cap and discarded it. As the two
proceeded up Harewood Road, Officer Lee and Officer Pittman
apprehended one of them—Reed’s brother, Ronald Reed.
Lombre later confirmed that Ronald Reed was the unmasked
robber. See also supra note 1 (Johnson’s identification of
Ronald Reed). The other man continued on Harewood where he
was in plain view of CUA Officers Dicks, Lee and Pittman.
Each recognized Reed as a former CUA employee. Moreover,
Dicks and Pittman knew Reed by name. When Reed was
arrested the next day, he had over $1200 in cash—an amount
much less than what was taken from the credit union but
nonetheless significant.
Nonetheless, Reed argues that this is a close case. He points
to alleged inconsistencies in the evidence against him. He
claims, first, that Lombre’s testimony that one robber wore a
“ski mask” is inconsistent with the fact that the “mask”
recovered near Hartke Theater was in fact a “skullcap” with eye
holes cut into it. Appellant’s Br. 10. Next, Reed notes that the
carjacking victim, Smith, was unable to identify him as the
carjacker. Id. Finally, Reed notes that he was in possession of
only approximately $1200 at the time of his arrest, leaving over
$23,000 unaccounted for. Id. at 4.7 Given the overwhelming
7
Reed also argues that Pittman “first described the perpetrator who
removed the mask as ‘clean shaven,’ although at the time of Reed’s
arrest one day later, he had a full moustache and goatee.” Appellant’s
Br. 4–5 (record citations omitted). Even assuming that Pittman had so
stated (which is not evident from the trial transcript—defense counsel
asked Pittman if he had earlier described Reed as “clean shaven” and
Pittman responded that he could not remember having done so,
12/13/05 Tr. 87–88), the record does not support Reed’s claim that he
had significant facial hair when he was arrested. In his brief, Reed
12
weight of the evidence against Reed, these alleged discrepancies
are of no moment. Whether the robber wore a “ski mask” or
“skullcap” with eye holes cut into it is insignificant as each has
a similar appearance. Smith’s inability to identify Reed is
understandable given that the carjacker was located behind
Smith in the bed of his truck when he was carjacked. See
12/13/05 Tr. 76–77, 101, 149. Finally, the fact that the police
did not recover the entire $25,683 taken from the credit union
when they arrested Reed the next day is hardly surprising in
light of Reed’s admission that he spent the next day on a “crack
cocaine binge.” Appellant’s Br. 3.8
We note three additional factors supporting our conclusion
that the prosecutor’s comments were not plain error because
they were not prejudicial. The prosecutor’s vouching related to
Agent Timko who testified only as to Reed’s interrogation and
confession. We have upheld the voluntariness of Reed’s
confession. Moreover, the prosecutor’s reference to Jesse James
and Billy the Kid contrasted them to the Reed brothers: their
“simple[] bank heist” was “not Jessie (sic) James. It [was] not
cites “12/15/05 Trans. 9 (arrest photo admitted into evidence), 37
(description of Reed in arrest photo)” as evidence that he had a
moustache and goatee at the time of his arrest. Appellant’s Br. 4–5.
However, the photo admitted into evidence at 12/15/05 Tr. 9—which
depicts a man with a moustache and goatee—is the arrest photo of
Ronald Reed. See Appellee’s App. C. Furthermore, the description
of the photo at 12/15/05 Tr. 37 occurred during defense counsel’s
closing argument. He described an unidentified photo that allegedly
showed Reed “clearly with a mustache and clearly with a goatee.”
12/15/05 Tr. 37.
8
Reed also argues that the evidence against him is “largely
circumstantial.” Appellant’s Br. 17. Even if this characterization
were correct (which it is not), it would be immaterial because a
conviction can be based entirely on circumstantial evidence. United
States v. Collins, 56 F.3d 1416, 1421 (D.C. Cir. 1995).
13
Billy the Kid.” 12/15/05 Tr. 12 (emphases added). The contrast
merely highlighted the simplicity and lack of sophistication with
which Reed and his brother committed the robbery.9 Further,
the court charged the jury that it “alone [is] to determine
whether to believe any witness” and that “the [closing]
arguments of the lawyers are not evidence,” 12/15/05 Tr. 9, 13,
which charge mitigated any harm caused by the statements. See
United States v. Brown, 508 F.3d 1066, 1076 (D.C. Cir. 2007).
Thus, neither the vouching for Agent Timko nor the allusion to
Jesse James and Billy the Kid constitutes plain error.
C. Sentencing
Finally, Reed argues that although he received a sentence
within the advisory range of the United States Sentencing
Guidelines (Guidelines), his “sentence was unreasonable and he
should receive a remand for resentencing before a different
judge.” Appellant’s Br. 18 (capitalization altered). Reed claims
that notwithstanding he presented a “compelling, if not
overwhelming case for leniency,” the district court “ignored all
9
Citing United States v. Richardson, 161 F.3d 728 (D.C. Cir
1998), Reed argues that the prosecutor’s comparison is no less
prejudicial simply because of its negative wording. Appellant’s Br.
13–14. In Richardson, we held that a black prosecutor’s comment
during closing arguments that “we don’t all look alike,” despite being
phrased in the negative, was “instantly recognizable as a reference to
racial stereotyping” and “could well have inflamed the emotions of the
jury and resulted in a verdict based on something other than the
evidence.” Id. at 735–37 (emphasis added). Because “the evidence
against appellant . . . was not such that his conviction was by any
means a certainty”—the evidence “consist[ing] primarily of the
testimony of” a single witness who claimed to have seen the defendant
carrying a gun—we reversed the conviction. Id. at 732, 737 (emphasis
added). Here, the evidence against Reed—which includes the
testimony of multiple witnesses and DNA evidence linking him to the
crime as well as his confession—leaves little doubt as to Reed’s guilt.
14
mitigating evidence.” Appellant’s Br. 18–19. Reed explains
that he “had been a superb high school basketball player,”
Appellant’s Br. 18, and his lifelong dream was to become a
professional athlete. Def. Sentencing Mem. 11. “Unfortunately,
Reed never learned to read or write, and had many enablers
assist him though two years of junior college.” Appellant’s Br.
18. When “‘illiteracy shut down the one aspect of his life that
had been positive to his self-image[—]his life as an athlete—’”
Reed began abusing drugs. Id. at 19–20 (quoting Def.
Sentencing Mem. 10). Reed contends that illiteracy and drug
addiction had a “‘crushing practical and psychological effect[]’”
on him and prompted his criminal conduct. See id. (quoting
Def. Sentencing Mem. 10). In light of these “tragic personal
circumstances,” Def. Sentencing Mem. 12, Reed argues that a
15-year sentence, rather than the 25-year sentence the court
imposed, would have been appropriate. Appellant’s Br. 20.
We review Reed’s sentence under a “‘reasonableness’
standard.” See United States v. Bras, 483 F.3d 103, 106 (D.C.
Cir. 2007) (quoting United States v. Booker, 543 U.S. 220, 262
(2005)). “‘[A] sentence within a properly calculated Guidelines
range is entitled to a rebuttable presumption of reasonableness.’”
Id. (quoting United States v. Dorcely, 454 F.3d 366, 376 (D.C.
Cir.), cert. denied, 127 S. Ct. 691 (2006)); see also Rita v.
United States, 127 S. Ct. 2456, 2462–63 (2007). However, “[a]
sentencing court acts unreasonably if it commits legal error in
the process of taking the Guidelines or other factors into
account, or if it fails to consider them at all.” Id.
We do not believe Reed’s sentence was unreasonable. First,
the record does not support Reed’s view that the district court
“ignored all mitigating evidence” or refused to consider his case
for leniency. During the sentencing hearing, the court
acknowledged Reed’s mitigating evidence—expressing
sympathy for the “frustration” Reed experienced when his
dream of playing professional basketball ended. 3/21/06 Tr. 14.
15
The court acknowledged that drugs “destroy[ed]” Reed’s life
and contributed to many of his later difficulties. See id.
Moreover, the court noted that it was “unfortunate” that Reed’s
family and teachers did not help him understand the importance
of education or that “most people don’t make it in sports.” Id.
at 13–14. The court also noted, however, that other factors
weighed in favor of “severe punishment.” Id. at 16. It
explained that the robbery and carjacking traumatized their
respective victims. See id. at 14–16. It also expressed
frustration with Reed’s “total lack of remorse” and his repeated
complaints about the quality of his representation—which the
court described as “outstanding.” Id. at 11–12. Finally, the
court explained that because Reed was almost forty at the time
he committed his crimes, it had little hope that Reed might be
rehabilitated. Id. at 15.
In imposing the 25-year sentence,10 the court specifically
considered the sentencing factors set forth in 18 U.S.C. § 3553.
The court considered (1) the seriousness of Reed’s crimes and
their effect on the community, see, e.g., 3/21/06 Tr. 14–15; (2)
Reed’s history and characteristics (e.g., noting his illiteracy,
drug use, difficult childhood and lack of remorse); (3) the
likelihood of recidivism, id. at 15; (4) Reed’s need of mental
health and drug treatment, which it ordered, id.; (5) Reed’s need
of a literacy program, which it also ordered, id. at 21–22; (6) the
availability of consecutive sentences, which it rejected, id. at 21;
and (7) the need for restitution to the victims, which it ordered,
id. at 18–19. Furthermore, the court explained how the
Guidelines affected its analysis:
I did impose a sentence that is within the guidelines,
and I imposed that sentence considering the factors in
10
The district court originally imposed a 327-month sentence for
armed bank robbery but later vacated it because it exceeded the
statutory maximum. 4/10/06 Tr. 2–4.
16
the United States Code in assessing what the appropriate
sentence should be in this case . . . .
I . . . also conclude that because of the serious nature of
these offenses, that appropriate punishment is necessary,
and I think that the sentence imposed is necessary to
protect the community against having this type of
offense committed again.
I imposed a guideline sentence and at the top of the
guideline range . . . to reflect the fact that there were
three separate events that needed to be punished. But for
the fact that hopefully by the time he comes out, he will
be too old to commit further crime, I would have given
him a maximum sentence that would have been
consecutive.
Id. at 20–21.
Finally, Reed claims that the district court mischaracterized
his prior criminal record. Reed claims that before he committed
these crimes, he “had virtually no history of violence, and that
[the robbery] was freakishly atypical of [him];” however,
according to Reed, the district court mistakenly believed he had
“a long criminal history of violence.” Appellant’s Br. 19.11
Reed highlights the court’s observation during sentencing that
at “nearly 40 years old, [Reed] was ‘still doing this type of
11
Reed had two prior felony convictions. On April 14, 1990, Reed
was arrested after selling crack cocaine to an undercover police
officer. Def. Sentencing Mem. 2. He pleaded guilty to attempted
distribution of a controlled substance and received one year of
probation. Id. Later in 1990, Reed pleaded guilty to attempted
possession of a controlled substance with intent to distribute. Id. at 3.
Reed was sentenced to 30–90 months’ imprisonment to be served
concurrently with the 24–72 month sentence imposed when his
probation was revoked. Id.
17
stuff.’” Id. at 19 (quoting 3/21/06 Tr. 15) (emphasis in
Appellant’s Br.). But at no point did the district court state that
Reed had a “long criminal history of violence.” Nor did the
court’s observation that Reed was “still doing this type of stuff,”
demonstrate that it misunderstood his criminal history. It
merely reflected the court’s concern that because Reed
committed armed bank robbery when he was almost 40—an age
at which criminal behavior is expected to have
waned—recidivism was likely and therefore a significant prison
sentence was necessary to protect the public.12 This was a
legitimate sentencing concern. See 18 U.S.C. § 3553(a)(2)(C)
(sentencing factors include need “to protect the public from
further crimes of the defendant”).
For the foregoing reasons, the judgment of the district court
is affirmed.
So ordered.
12
The court explained that when people in their “teens” and
“twenties” commit crimes:
[Y]ou have a hope that, with age, they slow down and they
quit committing this type of crime, but when somebody is
mid-thirties—now almost 40—and they engage in this type of
behavior, it causes you to have to believe that when you are
that age and you are still doing this type of stuff, that there is
not a lot of hope that this type of activity isn’t going to occur
again . . . .
3/21/06 Tr. 15 (emphasis added).