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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10520
Non-Argument Calendar
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D.C. Docket No. 7:19-cr-00220-LSC-SGC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LADARIUS MAURICE WATSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 21, 2021)
Before ROSENBAUM, ANDERSON, and ED CARNES, Circuit Judges.
PER CURIAM:
Ladarius Watson pleaded guilty to two counts of Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(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). He appeals his 180-
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month sentence, which the district court imposed after reducing his guidelines
range based on substantial assistance to authorities and then varying upward based
on his participation in four other crimes for which he was facing state charges.
Watson contends the court considered that participation “relevant conduct” under
United States Sentencing Guidelines § 1B1.3, and he argues doing so was plain
error because any participation was not during, in preparation for, or in the course
of avoiding detection for his federal crimes.
I.
In late November 2017, Watson and two other men robbed a Tuscaloosa
Quick Stop at gun point. Later that same night and two miles up the road, Watson
and the others robbed a Subway sandwich shop at gun point. Watson brandished a
rifle during both robberies.
Less than an hour later, police stopped a car carrying Watson and the two
other men. A loaded rifle was on the seat next to Watson, and officers found
objects and money stolen in the robberies inside the car. During a “show up” with
victims and witnesses of the robberies, two people identified Watson as one of the
Quick Stop robbers. Although Watson initially denied being involved, he later
admitted to committing the Quick Stop and Subway robberies with the two other
men (one of whom was the getaway driver).
Watson was charged with two counts of Hobbs Act robbery and two counts
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of brandishing a firearm during a crime of violence, and he pleaded guilty to all
four charges through a written plea agreement. In it, Watson agreed to testify
against his codefendants and the government agreed to request a downward
departure in the calculation of his guidelines sentence if he provided substantial
assistance to authorities.
The presentence investigation report gave Watson’s base offense level as 20
under U.S.S.G. § 2B3.1(a). The PSR then applied a two-level increase under
U.S.S.G. § 3D1.4 as a multiple count adjustment and a three-level reduction under
U.S.S.G. § 3E1.1(a)–(b) for acceptance of responsibility, giving him a total offense
level of 19. Watson had zero criminal history points, which put him in criminal
history category I. Based on a total offense level of 19 and a criminal history
category of I, Watson’s guidelines range for the two robberies was 30 to 37
months.
The two brandishing offenses carried statutory minimum sentences of 7
years each, which under 18 U.S.C. § 924(c)(1)(D)(ii) had to run consecutively to
Watson’s sentence for the robberies. As a result Watson’s total guidelines range
became 198 to 205 months. The statutory maximum sentences were 20 years for
each of the robberies and life imprisonment for each of the brandishing offenses.
The PSR noted that Watson had six pending Alabama state charges. Two of
those charges were related to the Hobbs Act robberies. The other four charges
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related to three robberies and one burglary Watson was alleged to have committed
against four separate convenience stores in November and December 2017. The
PSR also noted that under U.S.S.G. § 5G1.3(c) Watson’s sentence for his federal
crimes should run concurrently with any anticipated but not yet imposed state
sentence he later received for state offenses that were U.S.S.G. § 1B1.3 “relevant
conduct.”
Before sentencing, the government filed a memorandum that contained a
motion to depart under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) based on
Watson’s substantial assistance to authorities. It recognized that the low end of his
guidelines range was 198 months but recommended a 95-month sentence because
he testified against the getaway driver at trial. Watson’s own memorandum
requested a sentence of 84 months.
At Watson’s initial sentence hearing, the district court adopted the total
guidelines range of 198 to 205 months. The court then asked for more detail about
Watson’s involvement in the robberies and burglary underlying the pending
Alabama state charges. Watson asserted that he “had absolutely no involvement”
in them, so the court postponed sentencing him until it could hear testimony from
the officer who investigated those cases.
When the sentence hearing resumed, the district court began by clarifying
that it had granted the government’s motion for a downward departure “to the
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extent that [the court] reduced the sentencing guideline range, as far as custody
goes only, to 95 months.” The court also explained that it had not sentenced
Watson during the initial hearing because the court did not find it “appropriate for
him to get a 95[-]month sentence,” despite the government’s recommendation, if
he had “committed further armed robberies” after the Hobbs Act robberies in this
case. Watson noted that he did “not need or want the government to put on any
testimony,” but he also did not want to admit to being guilty of the pending state
charges, so the court heard from the investigating officer.
The officer testified about the four state charges that did not involve the
Quick Stop and Subway robberies. About the first of those charges, the November
2017 armed robbery of a Tuscaloosa Buddy’s Food Mart, the officer testified that
Watson admitted his car was used in the robbery but claimed that he wasn’t present
for it; that video surveillance showed the robber wearing the same boots Watson
had on when he was arrested; and that phone records showed Watson’s cell phone
was at the Buddy’s Food Mart at the time of the robbery. About the second
charge, the November 2017 armed burglary of a Chevron Swift Shop, the officer
testified that video surveillance showed the burglar wearing a hat later recovered
from Watson’s car, which he said belonged to a friend but admitted he wore; that
video surveillance showed the burglar wearing the same boots Watson was
wearing when he was arrested; and that phone records put Watson’s cell phone at
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the Chevron Swift Shop during the burglary.
About the third charge, the December 2017 armed robbery of a Circle K, the
officer testified that Watson admitted in a recorded interview to committing the
robbery and to striking a victim with a handgun during it and that two co-
conspirators identified him as one of the robbers. About the fourth charge, the
December 2017 armed robbery of a Chevron gas station, the officer testified that:
video surveillance showed Watson browsing inside the gas station for six minutes
before leaving to get into a brown car; video surveillance showed three masked
men then running from the brown car into the gas station to rob it; and officers
later found the same brown car outside of Watson’s apartment complex. The
officer also testified that Watson admitted to being part of the planning of the
Chevron robbery and two co-conspirators identified him as the person who picked
the places to be robbed, helped plan the Chevon robbery, and “cased” the business
for them before they went inside to rob it.
After the officer’s testimony, Watson asked the court to sentence him to the
government’s recommended 95 months. But the court declined to do so,
explaining:
This is a horrendous crime. Not just because what he did in these
particular ones he pled guilty to, but the court finds he actively
participated [in] and committed the other robberies and the armed
burglary that occurred. It is not reasonable or logical or equitable or fair
for [Watson] to receive a 95 month sentence. The other defendant had
not committed these other robberies that I sentenced to 95 months . . . .
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The court reiterated that Watson “was facing 198 months at the low end of the
guideline range” and added that, with the 7-year statutory minimums for the
brandishing offenses and the 20-year statutory maximums for the robberies,
Watson was facing a total of 54 years in prison. Reaffirming its intention to give
Watson “the benefit of the downward departure based on his substantial
assistance,” the court stated that it was “not going [to] give him 54 years” or “648
months.”
Instead the court sentenced Watson to 60 months on each count, with the
two Hobbs Act robbery sentences running concurrently and the two brandishing
sentences running consecutively, for a total of 180 months. The court described
180 months as “a good compromise” because “it’s actually giving him 18 months
less than the minimum or the low end of the guideline range.” The court then
further explained the reasoning behind its sentence:
My obligation is to sentence the defendant to a sentence which is
sufficient but not more than necessary to accomplish the sentencing
goals set forth in the federal statutes, and I believe I have accomplished
that with my sentence. In other words, he has gotten the benefit of
substantial assistance, but yet also considering -- and I think was
probably light based upon the other charges.
And I assume he may very well get some extra time from the state court.
He certainly deserves it. He has gone on an armed robbery spree and
this is a menace to society. It ends up with people getting killed or hurt
and it should not be stood [sic] in any sense of the word.
Watson did not object. The court then further clarified how it had arrived at
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Watson’s sentence, noting it had “varied down or, excuse me, departed down based
on the 5K1 motion and then varied up based upon your relevant conduct, robberies,
and such.” The court also memorialized its decision to depart downward and then
vary upward in its Statement of Reasons for Watson’s sentence, which noted that
the variance was based on several § 3553(a) considerations including Watson’s
role in the offense, his extreme conduct, his history and characteristics, and the
need to reflect the seriousness of the offense, promote respect for the law, provide
just punishment, and adequately deter criminal conduct. Watson appealed his
sentence.
II.
We review only for plain error an asserted error raised for the first time on
appeal. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Plain error review requires a defendant to demonstrate, among other things, an
error occurred that was plain and affected his substantial rights. Id.
In calculating a defendant’s guidelines range, a sentencing court must
consider all “relevant conduct” attributable to him under U.S.S.G. § 1B1.3. See
United States v. Maddox, 803 F.3d 1215, 1221 (11th Cir. 2015). Relevant conduct
includes certain “acts or omissions” that “occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course of attempting
to avoid detection or responsibility for that offense.” U.S.S.G. § 1B1.3. But even
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if conduct is not relevant under § 1B1.3, the court is “still entitled to consider” it
“in deciding whether to vary outside the guideline range” when the conduct is
“directly germane” to the 18 U.S.C. § 3553(a) factors. See United States v.
Overstreet, 713 F.3d 627, 637–38 (11th Cir. 2013). “[T]he concept of ‘relevant
conduct’ under U.S.S.G. § 1B1.3 pertains to determining the appropriate offense
level, which is then used to calculate the guideline range. In contrast . . . [conduct]
completely unrelated to [the] offense of conviction . . . may be considered as part
of the defendant’s ‘history and characteristics’ and other § 3553(a) factors and,
thus, may be considered in imposing a variance.” Id. at 638 n.14. Section 3553(a)
requires the court to issue a sentence that is “sufficient, but not greater than
necessary” to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, deter criminal conduct, and protect the public from future
criminal conduct. See 18 U.S.C. § 3553(a).
III.
Watson contends that the district court considered his pending Alabama state
charges as relevant conduct under U.S.S.G. § 1B1.3. He argues that doing so was
plain error because those crimes were not part of the same pattern of misconduct as
his federal crimes, were not committed during his federal crimes, and were not
attempts to avoid detection for his federal crimes. He argues the plain error
affected his substantial rights because his similarly situated codefendant received a
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95-month sentence while he received a 180-month sentence — “almost double” —
based solely on the court’s finding that his “relevant conduct, robberies, and such”
warranted a harsher sentence.
The government contends that the court used the phrase “relevant conduct”
“in a colloquial sense and not as the term of art defined in § 1B1.3” and that it
considered Watson’s state crimes only under § 3553(a). It notes Watson’s
sentence is well below the statutory maximum and also below the guidelines range
that was originally in place before its substantial assistance motion. It argues that
“§ 1B1.3 played no role in the district court’s selection of Watson’s sentence,” so
“there was no error, much less plain error.”
The government is correct. The record makes clear that the district court did
not consider the conduct underlying Watson’s Alabama state charges when it
determined his guidelines range, after granting the government’s substantial
assistance motion, was 95 months. The court considered that conduct only when it
decided to vary upward from the guidelines range to a 180-month sentence, which
we have held it has every right to do. See Overstreet, 713 F.3d at 637–38. The
court explained how it used the details of Watson’s state crimes at the sentence
hearing, where it noted his “armed robbery spree” was “a menace to society” that
could “end[] up with people getting killed or hurt,” and again in its written
statement of reasons, where it cited several § 3553(a) factors within which those
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details fit. The district court’s choice of sentence, within Watson’s guidelines
range and well below his statutory maximum, was not error, plain or otherwise.
AFFIRMED.
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