[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 04-16442, 04-16443, 04-16564 June 22, 2006
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket Nos.
00-00032 CR-CB
00-00123-CR-CB-L
04-00103-CR-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT L. PERKINS,
a.k.a. Antwain Perkins
Defendant-Appellant.
_________________________________________
Appeals from the United States District Court
for the Southern District of Alabama
_________________________________________
(June 22, 2006)
Before EDMONDSON, Chief Judge, HILL and KRAVITCH, Circuit Judges.
PER CURIAM:
Robert Lee Perkins appeals his sentence for possessing stolen mail matter in
violation of 18 U.S.C. section 1708. Perkins contends the district court committed
Booker error when it enhanced his sentence based on facts the court found by a
preponderance of the evidence. Perkins also contends his sentence is
unreasonable. No reversible error has been shown; we affirm.
I. BACKGROUND
Perkins is a person known to the United States Postal Inspection Service
(USPIS) as a “recidivist mail thief.” Perkins has four prior federal convictions
involving mail theft. Shortly after his March 2004 release from federal prison, and
during a period of supervised release, law enforcement officers searched Perkins’
residence pursuant to a search warrant and, in Perkins’ bedroom, found over 50
pieces of mail -- including bank statements, checks, credit card statements, and
other items -- addressed to persons other than Perkins and the home’s other
residents. Officers also discovered a kit for making fraudulent identification cards
as well as five completed fake identification cards that were associated with stolen
mail found at Perkins’ residence, that bore Perkins’ fingerprints, and -- in at least
one instance -- that bore Perkins’ photograph with a victim’s name.
2
Perkins pleaded guilty to possessing stolen mail matter in violation of 18
U.S.C. section 1708.1 In his guilty plea, Perkins admitted only the facts of the
underlying offense. The district court then found by a preponderance of the
evidence that Perkins’ conduct involved the unauthorized transfer or use of
identification unlawfully to produce or obtain other means of identification and
enhanced Perkins’ sentence under U.S. Sentencing Guidelines section
2B1.1(b)(9)(C)(i) (currently codified at section 2B1.1(b)(10)(C)(i)). The district
court then departed upward from the Guidelines’ recommended range based on the
court’s belief that Perkins’ criminal history category did not accurately reflect his
lengthy criminal record, the seriousness of his offense, or the likelihood of
recidivism.2
1
A three-count indictment charged Perkins and his girlfriend, Sharon Fantroy, with attempting
to cash a forged United States Treasury check in violation of 18 U.S.C. section 510(a)(2) (count
one), possessing a false identification document in violation of 18 U.S.C. section 1028(a)(4) (count
two), and possessing fifteen pieces of stolen mail matter in violation of 18 U.S.C. section 1708
(count three). Perkins pleaded guilty only to count three -- possession of stolen mail matter. The
first two counts were dismissed on motion of the United States.
2
Perkins’ lengthy criminal history resulted in a criminal history category six -- the highest
possible category. Citing Perkins’ “abysmal record of complying with society’s norms” and the
inadequacy of Perkins’ criminal history category, the district court inflated Perkins’ base offense
level, which resulted in a higher sentencing range. The district court observed that sentencing for
the instant offense included Perkins’ fifth revocation proceeding, indicating that Perkins had four
times previously committed new offenses while on probation or supervised release. The court
further observed that the instant offense was Perkins’ fifth fraud or mail-related conviction, that
Perkins had been arrested at least 19 times before, and that Perkins had charges pending against him
for other unrelated offenses.
3
With the enhancement and upward departure, Perkins’ recommended
sentencing range increased from 24-30 months’ imprisonment to 37-46 months’
imprisonment. The court sentenced Perkins to 46 months’ imprisonment, to be
followed by three years of supervised release. Perkins objected, asserting that the
enhancement and upward departure violated Blakely v. Washington, 124 S.Ct.
2531 (2004).
The district court also considered revocation of Perkins’ supervised release.3
At the time of the instant offense, Perkins was on supervised release after having
served 33 months’ imprisonment for bank fraud, possessing stolen mail matter,
and conspiracy and a separate 24-month sentence for possessing stolen mail
matter. For violating the mandatory conditions of his supervised release, the
district court sentenced Perkins to an effective sentence of 27 months’
imprisonment.4 The district court then imposed the 27-month revocation sentence
to run consecutive to Perkins’ 46-month sentence for the instant offense, leaving a
total effective sentence of 73-months’ imprisonment.
3
Perkins consented to consolidating his sentencing hearing for violation of his supervised release
with his sentencing for possession of stolen mail matter.
4
The district court sentenced Perkins to two revocation sentences -- one sentence of 27 months’
imprisonment and the other of 24 months’ imprisonment -- to run concurrently with each other.
4
II. DISCUSSION
A. Sentence Enhancements.
Perkins contends the district court committed unconstitutional Booker error
when the court enhanced his sentence based on facts neither admitted by him nor
found by a jury. Enhancing a sentence, under a mandatory guidelines system,
based upon facts neither admitted by the defendant nor found by a jury violates the
defendant’s Sixth Amendment right to a jury trial. United States v. Booker, 125
S.Ct. 738, 749-56 (2005). Booker established two types of sentencing error: (1)
constitutional error, in which the sentencing court uses extra-verdict enhancements
to reach a Guidelines result that is binding on the sentencing judge; and (2)
statutory error, in which the court merely applies the Guidelines as mandatory.
United States v. Cain, 433 F.3d 1345, 1347 (11th Cir. 2005).
That the district court committed statutory Booker error by sentencing
Perkins under a mandatory guidelines scheme is undisputed. And the district court
further committed constitutional Booker error when it enhanced Perkins’ sentence
under Guidelines section 2B1.1(b)(9)(C)(i) based on its finding that Perkins used
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fraudulent identification cards -- a fact neither admitted by Perkins nor found by a
jury. The remaining question is whether this error requires re-sentencing.
Because Perkins preserved his claims of Booker error below, we review his
claims de novo and will reverse the district court only if the error was harmful.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). To show harmless
constitutional error, the Government must prove beyond a reasonable doubt that
the Guidelines’ mandatory application did not contribute to Perkins’ sentence.
Cain, 433 F.3d at 1348. See also Paz, 405 F.3d at 948 (“This standard is met only
where it is clear beyond a reasonable doubt that the error complained of did not
contribute to the [sentence] obtained.”) (internal quotation omitted). “Although
this is a high burden, it is not insurmountable.” United States v. Moriarty, 429
F.3d 1012, 1021 (11th Cir. 2005).
That Perkins was given the maximum sentence in the Guidelines range is
not, by itself, sufficient to establish harmless error beyond a reasonable doubt.
Cain, 433 F.3d at 1348. We have written that “to establish harmless constitutional
error in a case where the defendant received a sentence at the maximum
Guidelines range . . . the Government must at least point to a statement by the
district court indicating it would have imposed the same or a higher sentence if it
had possessed the discretion to do so.” Id.
6
Several statements by the district court here indicate that Perkins would
have received the same or a higher sentence had the Guidelines been advisory.
During the sentencing proceedings, the court stated:
[Perkins’] probation has been revoked in other cases . . . this would
be his fifth revocation hearing from prior sentences . . . . The second
point is it’s his . . . fifth, if I am not mistaken, fraud related, mail
related conviction . . . . I am looking at a defendant who has an
abysmal record of complying with society’s norms and directions
from various courts, including this one, to abide by conditions of
supervised release. So I wonder if a maximum, under this guideline
of 30 months, is an adequate sentence to reflect . . . his past crime
conduct or the likelihood that he will commit other crimes.
And after Perkins’ plea allocution, the court rebuked Perkins’ explanation for his
conduct, saying these things:
I’m not persuaded, Mr. Perkins, that that has a whole lot to do with
why you started back into your repetitive pattern of committing these
type of offenses. And I think society deserves a break from your
habits. And I am going to impose the maximum sentence . . . . I have
imposed [this] sentence . . . because I believe it addresses the
sentencing objective of punishment, deterrence and incapacitation.
This case is not one where we “simply do not know” what the district court
would have done under an advisory Guidelines scheme. Cf. United States v.
Davis, 407 F.3d 1269, 1271 (11th Cir. 2005) (finding harmful constitutional
Booker error and remanding case for re-sentencing when reviewing court found no
indication of what sentencing court would have done had it understood the
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Guidelines to be advisory). That the district court departed upward from the
Guidelines after enhancing Perkins’ base offense level, imposed the maximum
sentence available, and expressed an intent to give society a “break from
[Perkins’] habits,” makes it clear beyond a reasonable doubt that the district court
would not have imposed a lesser sentence under an advisory Guidelines scheme.
See Moriarty, 429 F.3d at 1021 (concluding that constitutional Booker error was
harmless when sentencing court imposed maximum sentence and expressed intent
to take defendant “out of society”). The district court’s Booker error was therefore
harmless.5
B. Reasonableness of the Sentence.
Perkins further contends that the district court’s decisions to depart
upwardly from the recommended Guidelines range and to impose Perkins’
revocation sentences consecutively to his sentence for possessing stolen mail
matter are unreasonable. We review Perkins’ final sentence for reasonableness.
5
The statutory Booker error was also harmless. Statutory error is subject to a less demanding
standard of review than the “harmless beyond a reasonable doubt” standard which the Government
has already satisfied. See Moriarty, 429 F.3d at 1021 (citing United States v. Mathenia, 409 F.3d
1289, 1291-92 (11th Cir. 2005)).
8
United States v. Winingear, 422 F.3d 1241, 1245-46 (11th Cir. 2005) (citing
Booker, 125 S.Ct. at 765). Our review is guided by the factors outlined in 18
U.S.C. section 3553(a), which include the available sentences, the applicable
Guidelines range, the nature and circumstances of the offense, the need to protect
the public, and the need for the sentence to reflect the seriousness of the offense,
promote respect for the law, and provide just punishment for the offense. Id.
The district court is not required to discuss each of the section 3553(a)
factors. United States v. Talley, 431, F.3d 784, 786 (11th Cir. 2005). But the
district court’s comments, as detailed above, show that it considered these factors
in rendering Perkins’ sentence. The district court departed upward from the
recommended Guidelines range based on Perkins’ “abysmal record,” the alarming
“speed with which [Perkins] came out [of prison] and recidivated,” the seriousness
of his offenses, the need to deter Perkins’ conduct, and the need to protect society
from further crimes. Upon review, we conclude that the district court’s upward
departure was reasonable.
Perkins also contests the reasonableness of imposing his revocation
sentences consecutive to his sentence for possessing stolen mail matter,
particularly after the district court’s upward departure in the main case. Because
Perkins raises this as a Booker issue for the first time on appeal, we review for
9
plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
District courts have discretion to impose revocation sentences concurrently or
consecutively. United States v. Quinones, 136 F.3d 1293, 1295 (11th Cir. 1998).
And the district court acted within its discretion because Perkins admitted that he
violated the terms of his supervised release. United States v. White, 416 F.3d
1313, 1318 (11th Cir. 2005) (concluding that no constitutional error occurred
when defendant admitted violating terms of his supervised release).
We cannot say the district court acted unreasonably when it imposed
Perkins’ revocation sentences to run consecutively to his sentence for possessing
stolen mail matter. Perkins’ revocation sentences were within the statutory
maximum sentences available. And, as we noted above, the district court
adequately considered the section 3553(a) factors in arriving at Perkins’ final
sentence. See United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006)
(affirming consecutive revocation sentence as reasonable when defendant admitted
that he violated conditions of his supervised release and sentencing court
considered section 3553(a) factors in arriving at sentence within statutory
maximum sentence). Upon review, we conclude that Perkins’ sentence is not
unreasonable.
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III. CONCLUSION
Perkins final sentence reflects the seriousness of his crimes and his
astounding rate of recidivism. The sentence is not unreasonable. We also
conclude that the district court’s Booker error was harmless beyond a reasonable
doubt. We accordingly affirm Perkins’ sentence.
AFFIRMED.
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