UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4343
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PETER BLAKE, a/k/a Senator,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:12-cr-00092-WDQ-1)
Submitted: March 27, 2014 Decided: April 8, 2014
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew C. White, SILVERMAN, THOMPSON, SLUTKIN & WHITE, LLC,
Baltimore, Maryland for Appellant. Rod J. Rosenstein, United
States Attorney, Peter M. Nothstein, Stefan D. Cassella,
Assistant United States Attorneys, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Peter Blake appeals from his 240-month sentence,
entered pursuant to his guilty plea to conspiracy to commit
murder and kidnapping in aid of racketeering and aggravated
re-entry after deportation. He avers that his sentence, which
constituted an upward variance from the Guidelines range, was
both procedurally and substantively unreasonable. We affirm.
The presentence report (“PSR”) calculated Blake’s
Guidelines range to be 360 months. The district court granted a
ten-offense-level departure for Blake’s substantial assistance
under U.S. Sentencing Guidelines Manual § 5K1.1 (2012), reducing
Blake’s Guidelines range to 121 to 151 months in prison. The
court then imposed an upward variance sentence of 240 months
based primarily on the gruesome nature of the murder underlying
Blake’s conspiracy charge.
We review sentences for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). This review entails appellate
consideration of both the procedural and substantive
reasonableness of the sentence. Id. at 51. In determining
procedural reasonableness, we consider whether the district
court properly calculated the defendant’s advisory Guidelines
range, gave the parties an opportunity to argue for an
appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)
2
factors, and sufficiently explained the selected sentence. Id.
at 49-51. If the sentence is free of significant procedural
error, we review it for substantive reasonableness, “tak[ing]
into account the totality of the circumstances.” Id. at 51.
When a district court imposes a sentence that falls
outside of the applicable Guidelines range, we consider “whether
the sentencing court acted reasonably both with respect to its
decision to impose such a sentence and with respect to the
extent of the divergence from the sentencing range.” United
States v. Hernandez–Villanueva, 473 F.3d 118, 123 (4th Cir.
2007). In conducting this review, we “must give due deference
to the district court’s decision that the § 3553(a) factors, on
a whole, justify the extent of the variance.” Gall, 552 U.S. at
51.
Blake first challenges the procedural aspect of his
sentence on the ground that the district court failed to provide
an individualized assessment when it imposed the variant
sentence. “Regardless of whether the district court imposes an
above, below, or within-Guidelines sentence, it must place on
the record an individualized assessment based on the particular
facts of the case before it.” Carter, 564 F.3d 325, 330 (4th
Cir. 2009) (internal quotation marks omitted). The court must
“adequately explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair
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sentencing.” Gall, 552 U.S. at 50. An extensive explanation is
not required as long as the appellate court is satisfied “‘that
[the district court] has considered the parties’ arguments and
has a reasoned basis for exercising [its] own legal
decisionmaking authority.’” United States v. Engle, 592 F.3d
495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551
U.S. 338, 356 (2007)).
In this case, the court’s reasoning demonstrated that
it listened to and considered the arguments of counsel in
general, reviewed the PSR, and considered the Guidelines range.
The district court clearly stated the basis of its
determination, and as such, even though that basis was not
presented in a detailed manner, we conclude that it was
sufficient to demonstrate that the court conducted the
appropriate review.
Blake contends specifically that the district court
did not adequately consider the unique and extraordinary nature
of his cooperation. However, prior to its upward variance, the
court granted the Government’s motion for a ten-level departure
under USSG § 5K1.1 based on Blake’s substantial assistance. The
4
court thus explicitly recognized Blake’s cooperation and
indicated that it was giving Blake a substantial reward. 1
Contrary to Blake’s arguments, the disputed variance
was based, not on a determination that Blake’s cooperation was
somehow less important or useful than the parties contended, but
rather on a determination that the murder in which Blake
participated was of such a gruesome and violent nature that it
required a sentence above the Guidelines range. Blake does not
dispute the district court’s conclusions that the murder was
deserving of greater punishment, that the murder was especially
vile, or that an excessively lenient sentence for such a murder
would lead to societal cynicism, which were the reasons
proffered by the district court for its chosen sentence.
Instead, Blake contends that the district court did
not consider or address: (1) the Government’s decision to allow
Blake to plead guilty to a conspiracy charge, thereby limiting
his exposure to ten years for the murder; (2) the fact that
Blake voluntarily came forward and cooperated against himself;
(3) the district court’s assurance to Blake at his guilty plea
hearing that it had “no information” that would lead to a
sentence above 135 months; and (4) how a consecutive ten year
1
Blake’s final sentence was ten years below the applicable
Guidelines range before the substantial assistance departure.
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sentence on the re-entry charge was appropriate when that crime
had no factual connection to the murder.
First, point one cuts both ways. The fact that the
Government cut a deal with Blake limiting his exposure was
clearly a reward for his cooperation. As Blake was
substantially rewarded for his cooperation in the plea
agreement, it is unclear whether arguing this point at
sentencing would have aided or hindered Blake’s argument for a
still lower sentence. 2 As this issue is not clearly applicable
to the court’s decisionmaking and, in any event, would have
required speculation, we find that it was not procedural error
to fail to mention the plea deal when imposing sentence.
As to point two, while the court did not explicitly
note that Blake could have walked away from his decision to
cooperate, this factor was part of the Government’s motion for a
large substantial assistance departure which was granted in
full. Regarding point three, while the district court informed
Blake at the Fed. R. Crim. P. 11 hearing that it had no
2
According to Blake, Hubert Downer, his co-conspirator,
pled guilty to a substantive murder offense carrying a maximum
sentence of life in prison. As such, Blake was rewarded for his
cooperation by the structuring of a plea agreement that capped
his total exposure at 30 years as well as a substantial
assistance departure that decreased his sentence to 20 years.
The court also recognized that Blake might benefit from
continued cooperation through a Rule 35 motion.
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information that it would impose a sentence above 135 months, 3
Blake was clearly informed that the stipulations of the parties
were not binding and that he could be sentenced up to the
statutory maximum. As such, the court’s statements (which were
not raised by the parties at sentencing as a reason for a lower
sentence) did not impact the statutory factors.
Finally, as to point four, the sentence on the
aggravated re-entry charge was necessarily increased in order to
reach the district court’s chosen sentence, because the sentence
on the conspiracy count was capped at 120 months. While the
murder was unrelated to the aggravated re-entry, the court
properly considered Blake’s offenses and history in light of the
§ 3553 factors as a whole in determining the appropriate
sentence. That is, the court was required to consider all the
§ 3553 factors in sentencing Blake on the aggravated re-entry
conviction, not simply the facts and circumstances of that
crime. See United States v. Rhine, 637 F.3d 525, 528-29 (5th
Cir. 2011) (upholding variance sentence over four times longer
than the top of the Guidelines range as procedurally reasonable
when court relied on unrelated conduct as part of the
defendant’s history and characteristics under § 3553).
3
The parties initially belied that the Guidelines range
would be 108 to 135 months.
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While the court’s explanation was not lengthy or
involved, we find that it was sufficient to show that the court
considered the parties’ arguments and had a reasoned basis for
its decision. In fact, Blake’s primary argument is not that the
court’s reasons are hard to discern but rather that he disagrees
with the court’s conclusion that Blake’s reward for cooperation
needed to be tempered by a greater recognition of and punishment
for the crimes that he had committed. This is not a claim of
procedural error, however. See United States v. Diaz Sanchez,
714 F.3d 289, 295 (5th Cir. 2013) (noting that argument that a
sentence does not account for or gives too much credit to a
particular factor is a claim of substantive unreasonableness).
Accordingly, the court did not commit procedural error.
Blake next asserts the district court’s imposition of
an upward variance rendered his sentence substantively
unreasonable because the court failed to account for his
extraordinary cooperation. As discussed above, however, the
district court granted a ten-level departure for Blake’s
cooperation, directly addressing the factor that Blake asserts
was ignored. In subsequently imposing a variance sentence based
upon the extent and type of Blake’s criminal behavior, the court
emphasized the need to not trivialize Blake’s conduct. In so
doing, the court noted Blake’s past and underlined the
particularly gruesome crime, thus explicitly basing the variance
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on the history and characteristics of the defendant, as well as
the need to afford adequate deterrence, to protect the public,
and to promote respect for the law, each of which the court
explicitly stated as a basis for its decision.
Blake avers that the Government made a recommendation
of 135 months on the very same sentencing factors and that the
Government cannot now argue that 240 months is not greater than
necessary to comply with the statutory factors. However, we do
not review a sentence to determine if it is greater than
necessary; instead, we review a sentence for reasonableness and
an abuse of discretion, and more than one sentence can be
substantively reasonable. United States v. Martin, 520 F.3d 87,
92 (1st Cir. 2008) (citation omitted) (“[T]here is not a single
reasonable sentence but, rather, a range of reasonable
sentences. Consequently, reversal will result if-and only if-the
sentencing court's ultimate determination falls outside the
expansive boundaries of that universe.”). Because there is a
range of permissible outcomes for any given case, an appellate
court must resist the temptation to “pick and choose” among
possible sentences and rather must “defer to the district
court's judgment so long as it falls within the realm of these
rationally available choices.” United States v. McComb, 519
F.3d 1049, 1053 (10th Cir. 2007); see also United States v.
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Carter, 538 F.3d 784, 790 (7th Cir. 2008) (noting substantive
reasonableness “contemplates a range, not a point”).
Blake also contends that his co-conspirator Downer’s
identical sentence of 240 months proves that the district court
did not adequately consider the extent of Blake’s cooperation.
Specifically, Blake averred that Downer (who was sentenced after
Blake) was convicted of a charge carrying a maximum sentence of
life imprisonment and did not come forward to cooperate until
after he was apprehended. Blake argues that he is entitled to a
substantially lesser sentence than Downer and that, if Downer’s
sentence was reasonable, his identical sentence cannot be.
Blake’s contentions are flawed. While he argues that
both his and Downer’s sentences cannot both be reasonable, this
assertion again ignores the fact that, in each case, there is a
range of reasonable sentences. Blake’s assertion that his
sentence does not fall within the reasonable range is
unconvincing. Blake’s sentence was individually tailored based
primarily upon both his cooperation with authorities and his
participation in a grisly crime. The court provided a specific
justification for its upward departure, and Blake was sentenced
to ten years less than the statutory maximum. The court’s
determination that, even in the light of extraordinary
cooperation, a sentence of 108 (requested by Blake) or 135
months (requested by the Government) was insufficient punishment
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for a particularly gruesome and violent murder committed by
someone with a violent past was not unreasonable.
Accordingly, we affirm Blake’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
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