United States v. Stephen Blackman

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5006

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

STEPHEN MCKINLEY BLACKMAN,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:10-cr-00491-TLW-1)

Submitted: May 20, 2011 Decided: June 8, 2011

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. William N. Nettles, United
States Attorney, Robert F. Daley, Jr., William E. Day, II,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Stephen McKinley Blackman pled guilty to one count of

failure to register as a sex offender, in violation of 18 U.S.C.

§ 2250(a) (2006). On appeal, he challenges his twenty-eight-

month sentence, arguing the district court abused its discretion

in denying his motion for a downward variance and that his

sentence, in this regard, is procedurally and substantively

unreasonable. We affirm.

By written motion prior to sentencing and again at

sentencing, Blackman requested a downward variance on three

grounds. First, Blackman requested the district court vary

downward based on his policy argument that U.S. Sentencing

Guidelines Manual (USSG) § 2A3.5 (2009), as presently

constituted, allows only a two-level reduction for acceptance of

responsibility for tier I and tier II offenders whereas tier III

offenders may receive as much as a three—level reduction for

acceptance of responsibility, resulting in, according to

Blackman, an unwarranted sentencing disparity among defendants

with similar records that have been found guilty of similar

conduct. Second, Blackman argued a sentence in the Guidelines

range was greater than necessary to accomplish the goals of 18

U.S.C. § 3553(a) (2006), because he merely violated a

registration provision of a non-punitive statute. Last,

Blackman, focusing on the “characteristics of the defendant”

2
factor of 18 U.S.C. § 3553(a)(1), alleged he has “ongoing

problems with substance abuse” and that “the vast majority of

the incidents listed in his presentence report are substance

abuse related as charged.”

At sentencing on September 20, 2010, Blackman made no

objections to the presentence report or to the established

advisory Guidelines range. The district court first heard

lengthy argument on Blackman’s motion for a variance based on

his policy argument pertaining to USSG § 2A3.5. The district

court ultimately denied the motion, stating:

I’m not prepared to conclude that the Guidelines
are flawed. And I am not sure that you are arguing
that they are flawed. It is just a question of the
Commission giving anybody a little more break—or an
opportunity for a reduction; is that the right way to
describe it—for a higher-tiered defendant and then,
therefor [sic], based on your position, the lesser-
tiered defendant end up with less off and the higher-
tiered defendant who starts at a higher level gets
more off.

It might be worthwhile—and, again, it is up to
the Commission—it is not up to the court—to, at least,
consider that circumstance—and maybe they did, maybe
they did, but consider than circumstance—and see if it
requires any change.

But I do not find that the Guidelines are flawed
in connection with this nor that it is such an
inequity that it would be a basis for me to vary in
this case on this basis. . . . I am not prepared to
conclude that the Commission’s policy is flawed
because of the decisions that were made, a new
[G]uideline coming in and allowing for the three
levels. But I have considered your position and I do
not conclude that it is a basis for a variance in this
case.

3
 Blackman again posited as his second basis for a

downward variance that “failure to register cases are different

than other criminal cases[,] because the purpose of . . . SORNA

[Sex Offender Registration and Notification Act] . . . is not to

punish people.” The court denied the motion on this argument,

responding that “[t]here is a criminal penalty that comes into

play . . . in the end, [SORNA] does provide for a criminal

punishment that has withstood Ex Post Facto arguments.” With

respect to Blackman’s reliance on his substance abuse related

offenses, the district court acknowledged that Blackman had some

substance abuse treatment problems, but concluded that the

record did not support a basis for the district court to vary.

After hearing from the parties and allowing Blackman

an opportunity to allocute, the district court analyzed the 18

U.S.C. § 3553(a) factors, with due consideration to this Court’s

pronouncement in United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009), that district courts should render an individualized

sentence in imposing sentence. The district court sentenced

Blackman towards the bottom of the Guidelines range to twenty-

eight months’ imprisonment.

On appeal, Blackman argues the district court erred in

denying his motion for a downward variance on the three

specified grounds and that the district court’s denial of his

motion rendered his sentence procedurally and substantively

4
unreasonable. A sentence is reviewed 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.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010). A sentence imposed within the properly calculated

Guidelines range is presumed reasonable by this court. United

States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).

In determining the procedural reasonableness of a

sentence, this court considers whether the district court

properly calculated the defendant’s Guidelines range, treated

the Guidelines as advisory, considered the 18 U.S.C. § 3553(a)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence. Gall, 552 U.S. at

51. Blackman does not dispute that the district court properly

calculated his Guidelines range under the advisory Guidelines.

However, he argues his sentence is procedurally unreasonable

because the district court treated the Guidelines as mandatory.

Specifically, he argues, when the district court denied his

motion for a downward variance based on his Guideline policy

argument, the district court improperly stated it was not up to

the court, but rather the Commission, to consider the

circumstance and see if it required any change. Blackman argues

that this statement indicates that the district court

5
effectively treated the Guidelines as mandatory. Similarly,

Blackman claims the district court treated the Guidelines as

mandatory in rejecting his motion for a downward variance on the

ground that he violated the registration provision of a non-

punitive statute.

Because Blackman requested a sentence below the

Guidelines range on the above-cited grounds, his claim was

properly preserved, and we review for reasonableness under an

abuse of discretion standard, reversing “unless . . . the error

was harmless.” Lynn, 592 F.3d at 576, 578 (“By drawing

arguments from § 3553 for a sentence different than the one

ultimately imposed, an aggrieved party sufficiently alerts the

district court of its responsibility to render an individualized

explanation addressing those arguments, and thus preserves its

claim.”); cf. United States v. Hernandez, 603 F.3d 267, 270 (4th

Cir. 2010) (reviewing claim of procedural unreasonableness for

plain error because defendant did not argue for a sentence

different from the sentence that he received).

It is now well established that a district court may

consider policy objections to the Sentencing Guidelines.

Kimbrough v. United States, 552 U.S. 85, 101-07 (2007). In

Kimbrough, the Supreme Court held that a district court may

deviate from the advisory Guidelines range for crack cocaine

offenses based on its conclusion that the disparity between

6
ranges for crack and powder cocaine results in a sentence

greater than necessary to achieve the sentencing goals of

§ 3553(a). Id. at 91. The Court has since reinforced the point

that “district courts are entitled to reject and vary

categorically from the . . . Guidelines based on a policy

disagreement with those Guidelines.” Spears v. United States,

555 U.S. 261, , 129 S. Ct. 840, 843-44 (2009). In Moore v.

United States, 555 U.S. 1, 1 (2008) (per curiam), the Court held

that the sentencing court committed procedural error because it

did not believe it had discretion to depart from the Guidelines

under Kimbrough, because it stated “Congress is the one who

looks at the [G]uidelines and decides whether or not they should

be put in-in force . . . . It isn’t the judges.” Id.; see also

United States v. Herder, 594 F.3d 352, 362-63 (4th Cir.)

(vacating sentence when district court “refused to consider a

variation from the Guidelines in light of the 67:1 ratio between

crack and powder cocaine at Herder’s offense level” because the

district court found that “‘Congress has decided that that’s an

appropriate ratio to establish’”), cert. denied, 130 S. Ct. 3440

(2010).

While in isolation the district court’s statement that

it is up to the Commission to decide whether a change in the

Guideline is warranted supports Blackman’s contention, a review

of the district court’s entire analysis makes clear that the

7
district court recognized its authority to vary from the

Guidelines range in Blackman’s case but simply declined to

exercise that authority. Specifically, the court stated: “I do

not find that the Guidelines are flawed in connection with this

nor that it is such an inequity that it would be a basis for me

to vary in this case on this basis . . . . I am not prepared to

conclude that the Commission’s policy is flawed because of the

decisions that were made . . . .”

This court has made clear that an appellate court’s

analysis should focus on what the district court “actually did,”

not on whether it used some forbidden phrase. Mendoza-Mendoza,

597 F.3d at 218-19 (instructing appellate courts should not

“nitpick” or “flyspeck” every transcript they review, or play

“Gotcha!” with district court judges). Rather, to afford the

appropriate amount of deference to district court judges, this

court must look to the “full context” of the sentencing

transcript to determine whether the district court properly

understood its rights and responsibilities. Id. We conclude

the record reflects that the district court acknowledged its

authority to vary from the Guidelines range with regard to the

Guideline policy argument, but ultimately disagreed with

Blackman’s argument, thereby denying the motion.

Blackman’s cursory argument that the district court

treated the Guidelines as mandatory with respect to his

8
assertion that SORNA is not a punitive statute is without merit.

Blackman construes the district court’s words that there is a

criminal penalty and a Guideline that come into play as

indicative of the district court’s treatment of the Guidelines

as mandatory. Such a reading is unsupported. We conclude the

district court’s statement merely reflected the court’s

acknowledgement that SORNA has a criminal penalty and an

attendant Guideline provision for non-compliance with the

registration requirements. The district court’s statements

therefore did not render Blackman’s sentence procedurally

unreasonable.

Blackman also generally challenges the substantive

reasonableness of his sentence, arguing that the district court

abused its discretion in rejecting the three proffered bases for

a downward variance. To the extent Blackman suggests the

district court should have adopted his policy argument,

Kimbrough does not require appellate courts to discard “the

presumption of reasonableness for sentences based on non-

empirically-grounded Guidelines.” United States v. Mondragon-

Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct.

192 (2009); see also United States v. Talamantes, 620 F.3d 901,

901 (8th Cir. 2010) (per curiam). While “district courts

certainly may disagree with the Guidelines for policy reasons

and may adjust a sentence accordingly[,] . . . if they do not,

9
[appellate courts] will not second-guess their decisions under a

more lenient standard simply because the particular Guideline is

not empirically-based.” Mondragon-Santiago, 564 F.3d at 367.

We therefore conclude the presumption of reasonableness applies

to this court’s review of Blackman’s sentence.

Blackman’s arguments on appeal fail to rebut the

presumption that his within-Guidelines sentence was reasonable.

In this case, the district court heard argument at length from

both parties on the motion for a downward variance. Ultimately,

the court explicitly rejected Blackman’s argument that the

Guideline was flawed and found the other two arguments

unpersuasive grounds to vary. We conclude Blackman’s sentence

was substantively reasonable.

Accordingly, we affirm Blackman’s sentence. 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

10