[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 13, 2007
No. 06-12014 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00199-CR-A-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK SAFFOLD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(February 13, 2007)
Before CARNES, PRYOR and FARRIS,* Circuit Judges.
PER CURIAM:
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.
One evening while he was under indictment in state court for various
robbery and theft charges, Derrick Saffold was sitting in a car at a gas station. He
was in the passenger seat wearing a bullet-proof vest and holding two guns in his
lap. A police officer who happened to be there spotted Saffold and arrested him.
Saffold admitted, both to his state probation officer and also while testifying at his
sentence hearing, that at the time of his arrest he and the driver of the car were on
their way to participate with a third man in a drive-by shooting. The third man
was not with them, but as Saffold said during his testimony, “we were fixing to go
pick him up.” 1
Saffold pleaded guilty to one count of receiving firearms and ammunition
1
In a written statement to his probation officer, Saffold described what happened this
way:
Audrey asked me if I was “down” with a drive by, meaning a shooting. I
said yes. We called Ellis Diggs on the telephone and asked him if he was “down”
with it. Ellis said he was. We told Ellis that we would leave about 9:00pm on
05/06/05. We had to go get Ellis, because his car had ran out of gas. Ellis had a
.40 cal handgun, the big gun. When we got out to put gas in Ellis’s car, Ellis left
his gun in our car. Ellis told us to give him the gun back when we got to
Hayneville. When we arrived at the Hayneville BP, at or about 10:00pm, we
stopped in front of the store and Ellis stopped at the gas pumps. Ellis was
supposed to get more gas in his car and we were going to take my sister’s car,
Geo, back to her and Audrey and myself would get in Ellis’s car with him. Police
officer walked by my car and saw the two guns in my lap with a “vest” on. The
police officer told me to step out of the car and asked me who the guns belonged
to. I told him that they were my cousin’s guns. I asked the police to let me take
the vest off and I attempted to run away. The police caught me, put me in
handcuffs and took me to jail. This is a true statement.
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which had been shipped in interstate or foreign commerce while under indictment
for a separate felony, in violation of 18 U.S.C. § 922(n). This is his appeal of the
resulting 30-month sentence. Saffold raises two issues.
I.
Saffold contends that the district court improperly increased his offense
level under United States Sentencing Guidelines § 2K2.1(b)(5) (Nov. 2005),
which requires a 4-level increase in the defendant’s offense level if the defendant
possessed a firearm in connection with a felony offense other than the offense of
conviction.2 In particular, § 2K2.1(b)(5) conditions the 4-level increase on his
“use[] or possess[ion] [of] any firearm or ammunition in connection with another
felony offense” or his “possess[ion] or transfer[] [of] any firearm or ammunition
with knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(5). The term
“‘another felony offense’ . . . refer[s] to offenses other than explosives or firearms
possession or trafficking offenses,” id. cmt. n.15, and subject to that limitation,
“felony offense” includes “any offense (federal, state, or local) punishable by
imprisonment for a term exceeding one year, whether or not a criminal charge was
2
The guideline was re-numbered § 2K2.1(b)(6) in the 2006 guidelines, but no change was
made in the text.
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brought, or conviction obtained,” id. cmt. n.4.
Saffold raised the issue of § 2K2.1(b)(5)’s application by timely objection
during the sentence proceeding. He did so even while conceding that he and
another individual had indeed planned to carry out a drive-by shooting when they
got into the car with the firearms on the evening of his arrest. Saffold relied on his
testimony that he and the driver of the car had altogether abandoned the drive-by
shooting plans by the time the police saw him at the gas station that night.
However he articulated his argument to the district court, he argues to us that the §
2K2.1(b)(5) enhancement does not apply because he was not guilty of the felony
of attempting or conspiring to commit the planned drive-by shooting; he was not,
he insists, because he backed out of the conspiracy and abandoned the attempt
before the shooting happened and before he was arrested in possession of the
firearms. Under Alabama law, he argues, his conduct amounted to renunciation
and it means he did not commit a felony in connection with his possession of the
firearms.
We are not persuaded by Saffold’s renunciation argument. Even if he did
tell the truth in his testimony, his conduct is not sufficient under Alabama law to
render him “not liable” under Ala. Code § 13A-4-3(c) for the felony of conspiring
to commit the drive-by shooting. The renunciation defense to conspiracy requires
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that one have given “a timely and adequate warning to law enforcement
authorities or made a substantial effort to prevent the enforcement of the criminal
conduct contemplated by the conspiracy.” Id. Merely changing one’s mind and
informing a co-conspirator is not enough, especially if one continues to hold the
firearms and wear a bullet-proof vest while sitting in the car that was to be used in
the drive-by shooting. The district court did not err in applying the § 2K2.1(b)(5)
enhancement.
II.
Saffold also contends that his 30-month sentence was unreasonable under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). We review this
contention in the context of the factors set out in 18 U.S.C. § 3553(a). See
Booker, 543 U.S. at 261, 125 S. Ct. at 766; United States v. Winingear, 422 F.3d
1241, 1246 (11th Cir. 2005). Those 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
educational or vocational training or medical care; (6) the kinds of sentences
available; (7) the advisory guidelines range; (8) the need to avoid unwanted
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sentencing disparities; and (9) the need to provide restitution to victims. See 18
U.S.C. § 3553(a). “Review for reasonableness is deferential,” and the party
challenging a sentence bears the burden of establishing unreasonableness in light
of the § 3553(a) factors and the record established in the district court. United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Saffold’s principal argument is that his sentence is unreasonable because the
district court failed to properly consider his mild mental retardation. On the way
to determining that Saffold’s guideline range was 24–30 months, the court denied
his motion for a downward departure for diminished mental capacity under
U.S.S.G. § 5K2.13. In the course of doing so, the court considered evidence that
included: (1) a psychometrist’s report dated almost ten years prior to sentencing
showing that Saffold had a below average IQ and (2) Saffold’s 13-year history of
receiving disability benefits for mild mental retardation.
Saffold argues that the transcript of the sentencing hearing is “devoid of any
meaningful discussion” of Saffold’s mental condition by the district court in
arriving at its final sentence. His argument seems to be that the district court was
required to specifically reiterate in its § 3553(a) discussion anything it had said
earlier in arriving at the guidelines range. We disagree. One discussion is enough.
We don’t require reiteration.
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In deciding on a sentence that would be reasonable under § 3553(a), the
district court specifically stated that it had “thought a lot about this case in view of
the arguments by the defendant as to mental condition.” The court also said that it
was reaching its decision “considering all of the factors enumerated in 18 U.S.C.,
Section 3553(a),” which alone is sufficient to satisfy the requirements of Booker.
See Talley, 431 F.3d at 786.
The court found that a sentence of 30 months, which was the top of the
applicable guidelines range, was appropriate because: (1) it would deter other
people under indictment for possessing firearms; (2) Saffold possessed the
firearms while en route to a drive-by shooting, and then fled after police tried to
arrest him; and (3) Saffold was on probation at the time of his unlawful firearm
possession. In view of those considerations and Saffold’s criminal history, 30
months was, if anything, on the light side of reasonableness.
AFFIRMED.
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