United States v. Trevin Gibson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4154

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TREVIN MAURICE GIBSON,

Defendant - Appellant.

No. 14-4169

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL RONDALE GIBSON,

Defendant - Appellant.

No. 14-4183

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
DESHAUN ENTREA SPRUILL,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:12-cr-00075-D-1; 4:12-cr-00075-D-2;
4:12-cr-00075-D-4)

Argued: September 17, 2015 Decided: October 22, 2015

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Niemeyer and Judge Shedd joined.

ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellants. Yvonne
Victoria Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: Terry F. Rose,
Smithfield, North Carolina for Appellant Trevin Maurice Gibson.
Brian M. Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North
Carolina, for Appellant Michael Rondale Gibson. Thomas G.
Walker, United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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BARBARA MILANO KEENAN, Circuit Judge:

Deshaun Spruill, Michael Gibson, and Trevin Gibson

(collectively, the defendants) each pleaded guilty to two counts

of using or carrying a firearm during and in relation to a crime

of violence, in violation of 18 U.S.C. § 924(c)(1). In their

consolidated appeals, they present the following issues: (1)

whether Spruill’s sentence is procedurally unreasonable; (2)

whether Michael Gibson’s and Trevin Gibson’s sentences are

substantively unreasonable; and (3) whether Trevin Gibson’s

sentence constitutes cruel and unusual punishment in violation

of the Eighth Amendment. Upon review of the defendants’

sentences, we affirm the district court’s judgment.

I.

The defendants participated in a number of armed robberies

between September 2011 and January 2012, which occurred at “fast

food” restaurants throughout the eastern part of North Carolina.

Trevin Gibson and Michael Gibson participated in, respectively,

ten and five robberies. Deshaun Spruill participated in ten

robberies and one additional robbery attempt.

In each of these robberies, various defendants, with their

faces concealed by hooded sweatshirts, bandanas, or masks,

entered a fast food restaurant brandishing firearms and knives.

One defendant escorted the store manager at gunpoint to open the

restaurant’s safe, while the remaining defendants stayed in the

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front of the restaurant and removed cash from the cash

registers. The government described the robbery spree as a

“reign of terror” across multiple jurisdictions, which required

the use of substantial law enforcement resources and the

coordination of multiple law enforcement agencies.

In June 2012, the defendants were charged with 16 counts of

robbery under the Hobbs Act, 18 U.S.C. § 1951, and 16 counts of

using firearms during the robberies, in violation of 18 U.S.C.

§ 924(c)(1). 1 Under their respective plea agreements, each

defendant pleaded guilty to two counts of using or carrying a

firearm during a crime of violence under Section 924(c)(1), in

exchange for the government dismissing the other charges. These

counts of conviction carried a mandatory minimum sentence of

five years’ imprisonment for the first offense and 25 years’

imprisonment for the second offense, to be served consecutively.

See 18 U.S.C. § 924(c)(1)(A), (C), (D). The government and each

defendant agreed that the advisory guideline sentence for each

defendant was the statutory minimum of 30 years’ imprisonment.

The district court accepted the defendants’ guilty pleas, and

1Five defendants were accused of participating in this
spree. Codefendant Marcus Garrett did not file an appeal of his
conviction or his sentence. This Court dismissed codefendant
Prentise Wilkins’ appeal pursuant to a valid waiver of his
appellate rights. See United States v. Wilkins, 604 F. App’x.
322, 323 (4th Cir. 2015).

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found each of the three defendants guilty of the two firearms

charges.

Spruill received a 396-month sentence, which upwardly

departed from the advisory guideline sentence of 360 months.

Spruill argued at the sentencing hearing that the minimum

sentence allowed by statute would be sufficient punishment,

because he had a difficult family background and no criminal

record, had graduated from high school and enrolled in community

college, had committed to enlisting in the Army, and had

accepted responsibility for his actions. The district court

explained that it had “considered all arguments [Spruill’s]

lawyer [had] made,” but found that other factors warranted an

upward departure. The court found that Spruill had participated

in eight robberies and one attempted robbery, in addition to the

two robberies forming the basis of Spruill’s firearms

convictions.

The court explained that the robbery spree “terrorized” the

victims who were “making minimum wage” and “trying to live an

honest life,” and attributed Spruill’s criminal conduct to his

own “greed.” During the sentencing hearing, the district court

commented that Spruill had exhibited a “smirk,” which indicated

that Spruill felt “no remorse at all.” Based on these factors,

the district court concluded that “society needs to be protected

from [Spruill].” The court relied on the dismissed robbery and

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firearms counts to apply U.S.S.G. § 5K2.21, which allowed the

court to upwardly depart “to reflect the actual seriousness of

the offense based on conduct underlying a charge dismissed as

part of a plea agreement.” In sentencing Spruill for the first

count of conviction, the court upwardly departed from the

guideline sentence of 60 months, and imposed a sentence of 96

months. On the second count, the court imposed the guideline

sentence of 300 months’ imprisonment.

The district court also applied an upward departure in

sentencing Michael Gibson. At the sentencing hearing, Michael

Gibson argued that the guideline sentence was an appropriate

sentence based on his youth, his substance abuse problems, and

his acceptance of responsibility. Disagreeing with this

argument, the government asked the court to consider a

photograph from the September 3, 2011 robbery, which depicted a

victim whose countenance reflected an “absolute vision of fear.”

The district court considered the violent nature of the

robberies, the vulnerability of the victims, Michael Gibson’s

criminal history, and the dismissed robbery and firearms counts,

and found that “serious punishment” was required “to reflect the

serious nature of his crimes” and to “protect society.” The

district court cited the dismissed robbery and firearms charges

and applied a Section 5K2.21 upward departure from the guideline

sentence of 60 months and sentenced Michael Gibson to 132 months

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on the first firearms count. The court imposed the guideline

sentence of 300 months’ imprisonment on the second firearms

count.

The district court imposed a greater sentence on Trevin

Gibson than the sentences received by any of his codefendants.

When Trevin Gibson participated in the first two robberies, he

was still in the custody of the Bureau of Prisons (BOP), serving

a sentence in home detention for breaking and entering a

sporting goods store and stealing 12 firearms. After his

release from BOP custody, while on supervised release, Trevin

Gibson participated in eight more robberies, bringing his total

participation to ten robberies. Ultimately, Trevin Gibson was

convicted of two firearms charges arising from robberies

committed while he was on supervised release.

At his sentencing hearing, Trevin Gibson argued that the

guideline sentence of 30 years’ imprisonment was sufficient,

especially considering the likely revocation of supervised

release in his prior criminal case. However, he did not offer

any particular mitigating reason that would have justified a

more lenient sentence than those already imposed on Michael

Gibson or Spruill. At the hearing, the government gave a vivid

description of the robbery spree. In addition to describing the

“reign of terror” that these robberies caused and the

substantial law enforcement resources expended, the government

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highlighted Trevin Gibson’s prior criminal history and his

participation in some of the robberies while still in BOP

custody.

The district court found that Trevin Gibson’s commission of

the first two robberies while in BOP custody, and his commission

of eight more robberies while on supervised release, reflected a

complete lack of respect for the law. In addition, the district

court discussed the severity of the robberies, their effect on

the victims, and the likelihood that Trevin Gibson would engage

in recidivist conduct. Taking into account Trevin Gibson’s age,

education, and “the entire record in this case,” the court

applied a Section 5K2.21 upward departure. As a result, Trevin

Gibson received a sentence of 216 months’ imprisonment on the

first firearms count, increased from the guideline sentence of

60 months. He also received the guideline sentence of 300

months’ imprisonment on the second firearms count, which yielded

a cumulative consecutive sentence of 516 months’ imprisonment

for the two offenses. This appeal followed.

II.

The defendants each present different arguments regarding

their respective sentences and the reasons why those sentences

should be vacated and the cases remanded for resentencing.

Accordingly, we will address those arguments separately.

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 A.

Deshaun Spruill argues on appeal that the district court

imposed a procedurally unreasonable sentence, in that the court

failed to address directly the arguments that Spruill raised at

sentencing. Spruill asks that we adopt the Seventh Circuit’s

holding in United States v. Villegas-Miranda, and conclude that

a district court must address all the sentencing arguments

raised by a defendant that are “not so weak as not to merit

discussion.” 579 F.3d 798, 802 (7th Cir. 2009) (quoting United

States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)).

Assuming, without deciding, that we would adopt such a

rule, the rule still would be inapplicable to the arguments that

Spruill raised at his sentencing hearing. The Seventh Circuit

cases on which Spruill relies require only that a district court

explain its rejection of a particular legal principle raised by

a defendant. See Villegas-Miranda, 579 F.3d at 803–04 (holding

that a district court must address an argument that a defendant

is entitled to credit for time served in state custody);

Cunningham, 429 F.3d at 679 (vacating a district court sentence

for failing to address the defendant’s argument for a

“diminished capacity” departure under U.S.S.G. § 5K2.13). Here,

however, Spruill did not advance arguments invoking any

particular legal principle or doctrine. Rather, Spruill’s

factual arguments, which included his enrollment in community

9
college and his commitment to enlist in the Army, concerned the

appropriate weight to be accorded the circumstances of his

personal history under the Section 3553(a) factors. Therefore,

we do not give further consideration to Spruill’s request that

we adopt certain procedures imposed by the Seventh Circuit, and

turn to consider his Section 3553(a) arguments under our own

circuit precedent.

We have held that a district court must consider the

statutory factors and explain the reasons for its sentence, but

that the court need not explicitly reference Section 3553(a) or

discuss on the record every statutory factor. United States v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006). The district court

is required only to make an individualized assessment that is

adequate to allow meaningful appellate review. United States v.

Carter, 564 F.3d 325, 330 (4th Cir. 2009). Accordingly, we

infer that the district court has considered all relevant

arguments presented at the sentencing hearing, especially when

the court states on the record that it has done so. See Rita v.

United States, 551 U.S. 338, 358–59 (2007) (holding that the

sentencing judge is not required to state explicitly that he has

heard and considered all arguments when “[t]he record makes

clear that the sentencing judge listened to each argument”).

At Spruill’s sentencing, the district court expressly

stated that it had considered “all arguments [Spruill’s] lawyer

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has made” and “all [Section 3553(a)] factors” before sentencing

Spruill. Those statements by the district court demonstrate

that the court considered and rejected Spruill’s arguments. Id.

at 358. In addition, the court found that the “smirk” Spruill

exhibited before the court was evidence of his lack of remorse,

and indicated a need for incarceration to deter Spruill from

engaging in future criminal activity. When the district court

applied an upward departure under U.S.S.G. § 5K2.21, the court

primarily relied on the nature and seriousness of the dismissed

robbery and firearms counts. Considered as a whole, this record

shows that the district court made an individualized assessment

and gave an adequate explanation of its reasons for imposing

Spruill’s particular sentence. See Carter, 564 F.3d at 330. We

thus conclude that Spruill’s sentence was not procedurally

unreasonable.

B.

Michael Gibson argues that his sentence of 432 months’

imprisonment was substantively unreasonable. He contends that

the district court failed to consider his youth as a mitigating

factor, overstated the seriousness of his youthful criminal

history, and failed to consider the “effect of aging” in

determining the likelihood that he would commit additional

criminal acts if released. We address each of these arguments

in turn.

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 This Court reviews the substantive reasonableness of a

district court’s sentence for abuse of discretion, taking into

account the totality of the circumstances. Gall v. United

States, 552 U.S. 38, 56 (2007); United States v. Morace, 594

F.3d 340, 345–46 (4th Cir. 2010). The Supreme Court also has

held that the abuse-of-discretion standard requires that

appellate courts reject the use of rigid percentage-based

formulas when evaluating the substantive reasonableness of a

non-guideline sentence. Gall, 552 U.S. at 47–49.

We conclude that Michael Gibson has not shown that the

district court failed to consider his relative youth during the

sentencing hearing. The district court stated on the record

that it had “considered all arguments [Michael Gibson’s] lawyer

has made.” This record is sufficient to show that the district

court actually considered the argument concerning Michael

Gibson’s relative youth presented at the sentencing hearing.

See Rita, 551 U.S. at 358–59; see also discussion supra Part

II.A.

Additionally, we conclude that Michael Gibson’s reliance on

Roper v. Simmons, 543 U.S. 551, 569–70 (2005), and United States

v. Howard, 773 F.3d 519, 531 (4th Cir. 2014), is unavailing.

Unlike the defendant in Simmons, who was sentenced to the death

penalty for acts committed as a juvenile, Michael Gibson was

sentenced to a term of imprisonment, and received an upward

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departure, for crimes he committed at 19 years of age. Although

this Court in Howard cautioned district courts against

“focus[ing] extensively on a [juvenile criminal record] . . . at

the expense of a reasoned analysis of other pertinent factors,”

773 F.3d at 531, Michael Gibson’s criminal history only includes

one crime committed before his eighteenth birthday, and the

district court mentioned that marijuana offense only in passing

while focusing on his more serious adult convictions and on

other Section 3553(a) factors. And nothing in the record

supports a conclusion that the court focused on that single

marijuana offense “at the expense of a reasoned analysis of

other pertinent factors.” Id. Accordingly, we conclude that

the district court did not fail to consider Michael Gibson’s

youth as a factor in determining his appropriate sentence.

Michael Gibson next argues that a total sentence of 30

years would have been sufficient in his case. He notes that if

he were given such a sentence he would be over 50 years old at

the time of his release, and that, generally, statistics show

that the incidence of recidivism drops significantly for

offenders over 45 years old. See Howard, 773 F.3d at 533

(collecting studies). We are not persuaded by this argument.

Statistical correlations among large populations will not

undermine the validity of a district court’s careful,

individualized assessment of a particular defendant convicted of

13
a particular crime. We therefore turn to review the factors

that the district court actually cited when sentencing Michael

Gibson.

The district court emphasized the serious nature of the

robberies, the vulnerability of the victims, and Michael

Gibson’s failure to “turn away from a criminal lifestyle” after

his prior convictions. Michael Gibson’s sentence of 432 months

for the two firearms convictions reflects a 20-percent increase

over the combined guideline sentence for both counts. His

attempt to focus solely on the district court’s greater upward

departure on the first count ignores Gall’s directive that

substantive reasonableness be evaluated by examining the

totality of the circumstances without “rigid mathematical

formulation.” 552 U.S. at 47–51. Moreover, without a plea

agreement, Michael Gibson would have faced a statutory minimum

of an additional 75 years’ imprisonment for the three dismissed

firearms counts that provided part of the basis for the Section

5K2.21 departure. See 18 U.S.C. § 924(c)(1)(C). Therefore, we

conclude that the imposition of a six-year upward departure for

the three dismissed firearms counts and the five robbery counts

was not an abuse of discretion, and that Michael Gibson’s 36-

14
year sentence is substantively reasonable under the totality of

the circumstances. 2

C.

Trevin Gibson argues that his sentence of 43 years is

substantively unreasonable and violates the Eighth Amendment’s

prohibition against cruel and unusual punishment. We first

analyze the substantive reasonableness of the sentence before

turning to the constitutional question.

Trevin Gibson’s central contention regarding substantive

reasonableness is that the factual record was insufficient to

support the 13-year upward departure imposed by the district

court. As discussed above, we review the substantive

reasonableness of a sentence for abuse of discretion under an

analysis of the totality of the circumstances. Gall, 552 U.S.

at 51.

The district court found that Trevin Gibson’s participation

in the robbery spree while still serving a sentence in BOP

custody and on supervised release reflected “utter and sheer

disrespect for the law,” and indicated a high risk of recidivism

2Because the district court did not err in calculating
Michael Gibson’s advisory guideline sentence, and we determine
that the district court did not abuse its discretion in applying
a Section 5K2.21 departure, we need not address Michael Gibson’s
argument that the court’s alternative variant sentence is
substantively unreasonable.

15
if he were to receive only the minimum punishment afforded by

statute. The court also discussed Trevin Gibson’s participation

in eight other robberies in the same spree, and concluded that

“these violent, despicable acts” warranted an upward departure

in sentence. Trevin Gibson’s eight dismissed firearms counts

would have carried a mandatory minimum of 200 years of

additional imprisonment, see 18 U.S.C. § 924(c)(1)(C), but the

district court applied only a 13-year upward departure under

Section 5K2.21. Accordingly, we conclude that the district

court listed sufficient reasons, complete with citations to the

record, to support the substantive reasonableness of the upward

departure.

Trevin Gibson argues, nevertheless, that the guideline

sentence already accounted for his criminal history and the

nature of the typical armed robbery, with the result that the

district court unreasonably “double counted” those factors in

imposing the upward departure of 13 years. However, contrary to

Trevin Gibson’s characterization of the sentencing proceedings,

the district court only counted these factors once, because

neither factor raised the advisory guideline sentence from the

statutory mandatory minimum. And, in any event, the sentencing

guidelines permit double counting unless expressly prohibited,

which was not the case here. See United States v. Rivera-

Santana, 668 F.3d 95, 102 (4th Cir. 2012) (holding that a single

16
prior conviction may properly be used to calculate two upward

departures, an upward variance, and a sixteen-level enhancement,

because the guidelines do not prohibit such multiple counting);

see also United States v. Crawford, 18 F.3d 1173, 1179 (4th Cir.

1994) (holding that “double counting is permissible under the

guidelines except where it is expressly prohibited”) (internal

quotation marks omitted). Accordingly, we conclude that Trevin

Gibson’s sentence is substantively reasonable.

Trevin Gibson also argues that his sentence of 43 years

constitutes cruel and unusual punishment, in violation of the

Eighth Amendment. We disagree.

Although the Eighth Amendment requires proportionality in

punishment, the Supreme Court has made clear that the Eighth

Amendment “forbids only extreme sentences that are grossly

disproportionate to the crime.” Graham v. Florida, 560 U.S. 48,

59–60 (2010) (emphasis added); see also United States v. Cobler,

748 F.3d 570, 575 (4th Cir. 2014). And the Supreme Court has

identified only one such grossly disproportionate sentence of

imprisonment, in Solem v. Helm, 463 U.S. 277, 303 (1983), in

which the defendant received a sentence of life imprisonment

without the possibility of parole for a single conviction for

passing a bad check in the amount of $100. Id. at 281–82.

Indeed, the Supreme Court even has upheld under the Eighth

Amendment a sentence of 25 years to life imprisonment for a

17
single non-violent crime of shoplifting $1,200 worth of golf

clubs. Ewing v. California, 538 U.S. 11, 18-20 (2003)

(plurality opinion).

In contrast, Trevin Gibson was sentenced to a term of 43

years’ imprisonment for two firearms offenses related to armed

robberies, which were part of a robbery spree involving multiple

violent crimes that “terrorized” several communities, and were

committed while he was in home detention or on supervised

release for another serious firearms offense. Trevin Gibson was

responsible for over $5,000 in victim losses attributable to his

crimes of conviction, and over $15,000 in victim losses related

to the dismissed robberies. Therefore, we hold that, under the

Supreme Court’s proportionality decisions and our decision in

Cobler, Trevin Gibson’s sentence is not grossly disproportionate

to his criminal conduct, even if considered solely with

reference to the two counts of conviction. Accordingly, we

conclude that his sentence does not violate the Eighth

Amendment.

III.

For these reasons, we affirm the sentences of Deshaun

Spruill, Michael Gibson, and Trevin Gibson.

AFFIRMED

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