United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2954
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Trinica James Jordan, *
* [PUBLISHED]
Appellant. *
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Submitted: May 14, 2009
Filed: July 20, 2009
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Before RILEY, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
Pursuant to a plea agreement, Trinica Jordan pleaded guilty to one count of
distribution of 12.17 grams of crack cocaine after having been previously convicted
of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and
851. Jordan disputed the government's contention that he was a career offender under
U.S.S.G. § 4B1.1. But the district court1 found that Jordan was a career offender and
determined that his advisory Guidelines range was 262 to 327 months' imprisonment.
After denying Jordan's motion for a downward variance from the Guidelines range,
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
the district court sentenced him to 262 months' imprisonment. Jordan appeals, arguing
that his sentence is unreasonable. We affirm.
I. Background
Jordan was indicted on one count of distribution of five grams or more of crack
cocaine after having been previously convicted of a felony drug offense, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851. The indictment included notice of
Jordan's prior felony drug conviction. Pursuant to a plea agreement, Jordan pleaded
guilty to distribution of 12.17 grams of crack cocaine.
The presentence investigation report (PSR) reflected that Jordan had eight adult
criminal convictions, resulting in seven scored criminal history points. The PSR stated
that Jordan had two prior convictions for a crime of violence and a controlled
substance offense. These convictions were for domestic assault and possession with
intent to deliver cocaine base. Because of Jordan's prior drug trafficking and domestic
assault convictions, the PSR concluded that Jordan was a career offender pursuant to
U.S.S.G. § 4B1.1. Jordan also had two other felony drug cases pending in state court
at the time of sentencing. The PSR also noted Jordan's numerous violations of
probation or unsatisfactory behavior while under court supervision. It placed Jordan
at a total offense level 34, criminal history category VI, for an advisory Guidelines
range of 262 to 327 months' imprisonment.
Jordan contested whether his prior drug felony and domestic abuse convictions
should be considered separate predicates for career offender purposes and requested
that the district court vary downward from the Guidelines range. The district court
found that Jordan was a career offender because the prior drug felony and domestic
abuse convictions were separate convictions. The district court also rejected Jordan's
request for a downward variance, stating:
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All right. Then the Court is ready to make its findings. In arriving at a
disposition, the Court is required, and the Court has in this case,
considered all of the statutory factors that apply under 18, United States
Code, Section 3553(a). The only factor that does not apply is the
restitution factor. Society as a whole is victimized by drug dealing such
as Mr. Jordan's criminal conduct.
***
The Court has considered the kinds of sentences available under the
statute of conviction and, of course, we have a mandatory minimum in
this case as discussed earlier of ten years. The Court has considered the
nature and circumstances of the offense and the history and
characteristics of the defendant. Mr. Jordan is age 33. He has an eighth
grade education. He has two dependent children.
In looking at his criminal history, there were several significant instances
of criminal conduct that resulted in convictions that were not scored in
arriving at the advisory guideline sentence. He would have been a
Criminal History Category IV but for the career offender as noted in
paragraph 74, but in figuring in Criminal History IV, the following
offenses were not taken into consideration. Paragraph 38, disturbing the
peace, resistance to arrest. Paragraph 39, public intoxication, loitering,
carrying a concealed weapon. Paragraph 40, loitering. Paragraph 41,
public drunkenness and loitering. And paragraph 42, operating while
intoxicated, first offense.
Defendant is a repeat domestic abuser. I counted three convictions for
hitting his female victim, J.P., in the face. Violated no contact orders,
and I would hasten to add all of this occurred before the brain injury in
2002. Defendant has been an abuser of substances his whole life. Began
using alcohol at age 13. He was a problem drinker. Marijuana since age
14. Other street drugs. This is not something that came on suddenly after
a brain injury. He's had substance abuse treatment. At the time of his
arrest, he was a daily consumer of alcohol, marijuana, and crack. He has
a learning disability with some memory loss and limited lawful
employment.
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The Court has considered all of the other statutory factors even though
I'm not going to dictate those into the record this morning and I have
carefully considered defendant's request for a variance for the reasons
stated in court and Ms. Ableidinger's sentencing memorandum.
I think it's interesting and important to note here that defendant's criminal
conduct did not start when he had his brain injury. He has a long and
serious criminal history outlined from paragraph 38 to paragraph 69. As
noted, about five or six of those crimes were not scored under the
advisory guidelines because of the age of the conviction. There's simply
no credible evidence that his brain injury had anything to do with his
commission of the instant offense. Further, there's no evidence that the
Bureau of Prisons cannot adequately handle any treatment needs that he
may have or that the court, on his release from imprisonment, could not
get services to him.
This is not a novel case. Defendant's arguments apply to most of the
defendants that I see who are here on similar offenses. The Court finds
that it would violate the provisions of 18 United States Code Section
3553(a) to grant a variance and I deny the motion for variance. I find that
the appropriate disposition is within the advisory guideline range.
The district court then imposed a sentence at the bottom of the Guidelines range
of 262 months' imprisonment.
II. Discussion
Jordan asserts that his sentence is unreasonable because his status as a career
offender was based on decade-old drug and domestic assault convictions and the
sentence imposes punishment that is greater than necessary. According to Jordan, the
age and nature of these predicate offenses, as well as his youth at the time of their
commission, made it unreasonable for the district court to impose the career offender
level of punishment. Applying the career offender enhancement more than doubled
the otherwise applicable sentence for Jordan's underlying drug offense. Jordan
contends that the career offender enhancement overstates the seriousness of his
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criminal history. He does not argue that the district court erred in applying the career
offender enhancement but rather argues that the district court should have varied from
the Guidelines range after applying the enhancement based on his youth, the age of
the predicate offenses, his mental impairment, and substance abuse.
"[A]ppellate review of sentencing decisions is limited to determining
whether they are 'reasonable.'" Gall v. United States,___U.S.___, 128 S.
Ct. 586, 594, 169 L. Ed. 2d 445 (2007). We review the reasonableness
of a sentence under a "deferential abuse-of-discretion standard." Id. at
591.
Applying Gall, we "'first ensure that the district court committed no
significant procedural error'" at sentencing. United States v. Shy, 538
F.3d 933, 937 (8th Cir. 2008) (quoting Gall, 128 S. Ct. at 597). "If the
decision was 'procedurally sound,' we then review the 'substantive
reasonableness of the sentence' . . . considering the totality of the
circumstances." Id. "[I]n determining whether the district court
considered the relevant factors in a particular case, 'the context for the
appellate court's review is the entire sentencing record, not merely the
district court's statements at the hearing.'" United States v. Gray, 533
F.3d 942, 944 (8th Cir. 2008) (quoting United States v. Perkins, 526 F.3d
1107, 1111 (8th Cir. 2008)).
United States v. Battiest, 553 F.3d 1132, 1135 (8th Cir. 2009).
"Where, as here, the sentence imposed is within the advisory guideline range,
we accord it a presumption of reasonableness." Id. at 1136 (internal quotations,
alterations, and citations omitted). Such presumption "may be rebutted by reference
to the statutory sentencing factors found in 18 U.S.C. § 3553(a)." Id. (internal
quotations, alterations, and citation omitted). When "the record reflects that the district
court made 'an individualized assessment based on the facts presented,' specifically
addressing [the defendant's] proffered information in its consideration of the 18 U.S.C.
§ 3553(a) sentencing factors," this court will conclude that the sentence imposed was
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not unreasonable. United States v. McNeal, 301 Fed. Appx. 573, 573 (8th Cir. 2008)
(unpublished) (quoting Gall, 128 S. Ct. at 597).
Here, the district court sentenced Jordan at the bottom of the applicable
Guidelines range, so we afford the sentence a presumption of reasonableness.
Furthermore, the district court committed no error—procedural or substantive—in
fashioning Jordan's sentence. The district court's sentencing colloquy sufficiently
explained its rationale for imposing the Guidelines sentence. After calculating the
applicable Guidelines range, the district court stated that it had "considered all of the
statutory factors" under § 3553(a). It specifically recounted Jordan's criminal history,
noting "several significant instances of criminal conduct that resulted in convictions
that were not scored in arriving at the advisory guidelines sentence." The court also
noted that Jordan was a repeat domestic abuser, began using alcohol at the age of 13,
began using marijuana at the age of 14, and used other street drugs. The court
specifically stated that it had read and considered Jordan's sentencing memorandum
in support of a downward variance but that the present case was not "novel" and that
Jordan had a "long and serious criminal history." Jordan argues that the district court
abused its discretion by failing to mitigate punishment in light of the unreasonably
harsh impact of the career offender enhancement. Certainly, a lesser sentence was
within the circumference of the district court's discretion, but, given Jordan's extensive
criminal history, we cannot say that the district court abused its discretion by imposing
a sentence of 262 months' imprisonment.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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