Case: 14-14223 Date Filed: 04/03/2015 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14223
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cr-60130-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN WHITEHEAD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 3, 2015)
Before HULL, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
Case: 14-14223 Date Filed: 04/03/2015 Page: 2 of 10
After resentencing, Bryan Whitehead appeals his 432-month total sentence
for two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), and two
counts of brandishing a firearm during a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii). Whitehead’s 432-month total sentence is comprised of
concurrent 48-month sentences on the bank robbery counts, a mandatory
consecutive 84-month sentence on the first firearm count, and a mandatory
consecutive 300-month sentence on the second firearm count. On appeal,
Whitehead argues that his concurrent 48-month sentences on the two bank robbery
counts are substantively unreasonable. After review, we affirm.
I. BACKGROUND
A. Offense Conduct
In 2010, Whitehead robbed a bank at gunpoint, ordering the bank employees
to empty their cash drawers and forcing them to the vault to give him money from
there as well. After taking the money, Whitehead escaped.
Two years later, in 2012, Whitehead robbed another bank at gunpoint, again
forcing the tellers to give him money from their cash drawers and from the bank’s
vault. After the second bank robbery, Whitehead was apprehended.
Following a jury trial, Whitehead was convicted of two counts of bank
robbery (Counts 1 and 3) and two counts of brandishing a firearm during the bank
robberies (Counts 2 and 4).
2
Case: 14-14223 Date Filed: 04/03/2015 Page: 3 of 10
B. First Sentencing and Appeal
At Whitehead’s original sentencing, the district court imposed a 471-month
total sentence. Pursuant to § 924(c), the district court imposed a consecutive,
seven year (84-month) sentence for the first firearm count and a consecutive
twenty-five year (300-month) sentence on the second firearm count, which
accounted for 384 months of the total sentence. The sentences on the firearm
counts were the mandatory minimums under 18 U.S.C. § 924(c) and were
statutorily required to be served consecutive to each other and to any other
sentence. See 18 U.S.C. § 924(c)(1)(A), (C), (D) (requiring a seven year sentence
if a firearm was brandished and a twenty-five year sentence for “a second or
subsequent [§ 924(c)] conviction” and prohibiting the sentences from running
“concurrently with any other term of imprisonment”).
For the two bank robbery counts, the district court calculated a combined
total offense level. In doing so, the district court imposed a four-level abduction
enhancement, pursuant to U.S.S.G. § 2B3.1(b)(4)(A), because during the robberies
Whitehead forced bank employees at gunpoint to move to different areas of the
banks. With a combined total offense level of 29 and a criminal history category
of I, the district court calculated an advisory guidelines range of 87 to 108 months’
imprisonment.
3
Case: 14-14223 Date Filed: 04/03/2015 Page: 4 of 10
As to the bank robbery counts, Whitehead requested a sentence below the
advisory guidelines range—specifically a sentence of “no time” on the bank
robbery counts—based in part on Whitehead’s good character and the fact that he
had no prior criminal history. In support, Whitehead called two witnesses, who
testified that Whitehead: (1) was a good father who was close to his two children,
one of whom suffered from sickle cell disease; and (2) had saved food to feed a
homeless man in his neighborhood and had dropped out of college to support his
younger siblings when his mother lost her job. The government asked for a 108-
month sentence on the bank robbery counts, and called one of the bank robbery
victims to testify about the trauma she suffered from the bank robbery. The district
court imposed two concurrent 87-month sentences on the bank robbery counts, at
the low end of the range.
On appeal, this Court affirmed Whitehead’s convictions, but vacated the
total sentence after concluding that the district court erred by applying U.S.S.G.
§ 2B3.1(b)(4)(A)’s four-level abduction enhancement when calculating the
advisory guidelines range for the two bank robbery counts. United States v.
Whitehead, 567 F. App’x 758, 770-71 (11th Cir.), cert denied, 135 S. Ct. 308
(2014). The Court explained that “[i]nstead, when a defendant forces victims at
gunpoint to move to different areas of a bank branch, the increase for physical
restraint of victims under § 2B3.1(b)(4)(B) applies.” Id. at 771. Because the Court
4
Case: 14-14223 Date Filed: 04/03/2015 Page: 5 of 10
was remanding for resentencing, it did not address Whitehead’s argument that his
sentences were substantively unreasonable. Id.
C. Resentencing
At Whitehead’s resentencing, the parties agreed that: (1) the mandatory
minimum consecutive terms for the firearm counts, Counts 2 and 4, remained 84
months and 300 months, respectively; and (2) with the two-level physical-restraint
enhancement, the advisory guidelines range for the bank robbery counts, Counts 1
and 3, was now 70 to 87 months.
Whitehead again asked for a downward variance. Whitehead argued that the
total mandatory minimum 32-year sentence on Counts 2 and 4, due to § 924(c)’s
requirement that those sentences be “stacked,” was more than adequate to serve the
purposes of 18 U.S.C. § 3553(a), especially given that Whitehead had no criminal
history before the bank robberies. In support, Whitehead submitted an excerpt
from a 2011 Sentencing Commission Report to Congress (“Report”). See U.S.
Sentencing Comm’n, Report to Congress: Mandatory Minimum Penalties in the
Federal Criminal Justice System (October 2011). The Report notes that § 924(c)’s
requirement that mandatory minimum sentences be “stacked” can result in unduly
harsh sentences where all the stacked § 924(c) offenses are charged in the same
indictment as part of a crime spree and the defendant had no prior criminal history.
Id., ch. 12 at 359-60. The Report recommends that § 924(c) be amended so that,
5
Case: 14-14223 Date Filed: 04/03/2015 Page: 6 of 10
inter alia, the mandatory stacking requirement apply only when the first § 924(c)
offense is the result of a prior conviction. Id., ch. 12 at 364.
The government requested a 70-month sentence, at the low end of the
advisory guidelines range. The government pointed out that, although Whitehead
did not have any prior convictions before this prosecution, he committed the two
bank robberies two years apart and not as part of a single criminal episode. Thus,
stacking his § 924(c) offenses did not result in an excessively harsh sentence on
Whitehead’s firearm counts and did not justify a downward variance with respect
to his bank robbery counts. In response, Whitehead argued that his stacked
§ 924(c) sentences were too harsh because he is not a true recidivist in the sense
that he was not convicted and imprisoned on his first offense before committing a
second offense.
The district court asked to be reminded of the testimony of the victim at the
original sentencing hearing. The government stated that one of the tellers
previously testified about the harrowing nature of the robbery and that she still
suffered from post-traumatic stress issues.
Before imposing the sentence, the district court noted that it had considered
the parties’ arguments and all of the § 3553(a) factors, emphasizing in particular
the need to promote respect for the law, deter future criminal conduct, and provide
a just punishment. The district court granted Whitehead’s request for a downward
6
Case: 14-14223 Date Filed: 04/03/2015 Page: 7 of 10
variance and imposed concurrent 48-month sentences on Counts 1 and 3, resulting
in a total sentence of 432 months.
II. DISCUSSION
On appeal, Whitehead argues that the district court was required to vary
downward to a total zero-month prison sentence on Counts 1 and 4 to alleviate the
severity of his mandatory, consecutive sentences on Counts 2 and 4, and requests
that we vacate his total 432-month sentence and remand with instructions to
impose a total 384-month sentence.
We review the reasonableness of a sentence for an abuse of discretion using
a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
We look first at whether the district court committed any significant procedural
error and then at whether the sentence is substantively unreasonable in light of the
18 U.S.C. § 3553(a) factors and the totality of the circumstances. Id. On appeal,
Whitehead argues only that his sentence is substantively unreasonable, and thus
has abandoned any claim of procedural unreasonableness. See United States v.
Dougherty, 754 F.3d 1353, 1358 (11th Cir. 2014).
The abuse of discretion standard “allows a range of choice for the district
court, “and we will vacate a sentence only if “left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
7
Case: 14-14223 Date Filed: 04/03/2015 Page: 8 of 10
reasonable sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1189-90 (11th Cir. 2010) (en banc) (quotation marks omitted). The
party challenging the sentence bears the burden of showing that the sentence is
unreasonable in light of the record and the § 3553(a) factors. Dougherty, 754 F.3d
1353 at 1361. 1
Here, Whitehead has not shown that his total 432-month sentence is
substantively unreasonable or that the district court abused its discretion by varying
downward only to 48 months as to Counts 1 and 3, the bank robbery offenses. 2
Whitehead’s 48-month concurrent sentences on Counts 1 and 3 are 22 months
below his advisory guidelines range of 70 to 87 months and well below the 20-year
statutory maximum in 18 U.S.C. § 2113(a), both indications of reasonableness.
See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008); United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
2
The parties agree that the district court was statutorily required to impose the mandatory
minimum sentences on Counts 2 and 4 and to run the sentences consecutive to any other
sentence. Thus, the only question here is whether the district court’s decision to impose
concurrent 48-month sentences on Counts 1 and 3 was an abuse of discretion.
8
Case: 14-14223 Date Filed: 04/03/2015 Page: 9 of 10
Whitehead argues that, given his mandatory consecutive sentences on
Counts 2 and 4, the district court was required to “var[y] downward as far as
possible” on Counts 1 and 3 “to minimize the injustice.” Whitehead relies on the
2011 Report’s finding that § 924(c)’s mandatory “stacked” sentences sometimes
result in excessively harsh sentences for defendants with no prior convictions.
The 2011 Report does not make Whitehead’s 48-month sentences
substantively unreasonable. Although a district court may consider a Sentencing
Commission report when selecting the appropriate sentence, such a report “does
not limit the district court’s discretion to determine what weight to give to each
§ 3553(a) factor” and “does not require the district court to vary” from the
correctly calculated advisory guidelines range. United States v. Cubero, 754 F.3d
888, 900 (11th Cir. 2014).
The district court considered the 2011 Report and Whitehead’s arguments
that he had no prior criminal history and was not a true recidivist. In fact, the
district court gave Whitehead a 22-month downward variance based on these
mitigation arguments. But, the district court also considered the need for the
sentence to promote respect for the law, deter future criminal conduct, and provide
a just punishment. After weighing all the factors, the district court was unwilling
to vary any further downward. Under the totality of the circumstances, we cannot
say the district court abused its discretion.
9
Case: 14-14223 Date Filed: 04/03/2015 Page: 10 of 10
AFFIRMED.
10