United States v. Demetres Blackwell

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 28, 2007
No. 07-11845 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-00064-CR-2-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEMETRES BLACKWELL,
a.k.a Demetrius Blackwell,
Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(November 28, 2007)

Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:

Demetres Blackwell appeals his eighteen-month sentence for failing to abide
by the terms of his supervised release, a violation of 18 U.S.C. § 3583(e)(3).

Blackwell violated the terms of his supervised release by: (1) testing positive for

cocaine; (2) failing to participate in a mandated drug program; (3) failing to

document his attendance at Alcoholics Anonymous/Narcotics Anonymous

meetings; (4) twice failing to meet with his probation officer; and (5) missing four

drug testing appointments.

The district court determined at Blackwell’s sentence hearing that he had an

adjusted offense level of twenty and a criminal history category of three. Factoring

these together, the court calculated Blackwell’s advisory sentencing guideline

range to be between five and eleven months imprisonment. However, finding that

the guideline range did not sufficiently account for, among other things, the

defendant’s criminal history, the district court varied Blackwell’s sentence upward

to eighteen months imprisonment using the 18 U.S.C. § 3553(a) factors. Blackwell

contends on appeal that: (1) the district court erred by impermissibly double

counting his criminal history to arrive at the eighteen month sentence; and (2) that

his ultimate sentence was unreasonable.

We normally review de novo a double counting claim. United States v.

Naves, 252 F.3d 1166, 1168 (11th Cir. 2001). However, because Blackwell did

not object to any double counting at his sentence hearing, we review only for plain

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error. Id.

Double counting occurs “when one part of the Guidelines is applied to

increase a defendant’s punishment on account of a kind of harm that has already

been fully accounted for by application of another part of the Guidelines.” Id.

(quoting United States v. Rodriguez-Matos, 188 F.3d 1300, 1309 (11th Cir. 1999)).

In rare circumstances, it may be an error for a district court to double count. See

United States v. Lebovitz, 401 F.3d 1263, 1270 (11th Cir. 2005) (“a defendant

asserting a double counting claim has a tough task”).

Blackwell contends that the district court erred in applying an eighteen

month sentence because it engaged in double counting when it considered his prior

criminal record in determining his sentencing guideline range and again under §

3553(a) when imposing the ultimate sentence. If we were to accept this argument,

no district court could consider a defendant’s criminal history at the § 3553(a)

stage because criminal history is always considered in arriving at the advisory

guidelines range. This would cripple the ability of district courts to fashion

reasonable sentences after considering, among other things, “the history and

characteristics of the defendant,” which they are required to do. 18 U.S.C. §

3553(a)(1); see United States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 757

(2005).

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We have explicitly rejected a similar argument by a defendant in United

States v. Amedeo, 487 F.3d 823 (11th Cir. 2007). There, the defendant’s sentence

was enhanced pursuant to U.S.S.G. § 3B1.3 because the defendant, an attorney,

abused the trust of his client. Id. at 833. The district court considered the same

breach of the attorney-client relationship again to vary the defendant’s sentence

upward using the § 3553(a) factors. Id. at 833–34. We affirmed, holding that

“based on the extraordinary circumstances of this case, it was reasonable for the

district court to rely on certain aspects of [the defendant]’s conduct, particularly his

abuse of the attorney-client relationship, that it had already considered in imposing

an enhancement.” Id.

In addition, we have affirmed a number of sentences in which the district

court determined the defendant’s criminal history category and then explicitly

considered that same criminal behavior in reaching the defendant’s ultimate

sentence under the § 3553(a) factors. See e.g., United States v. Dorman, 488 F.3d

936, 944 (11th Cir. 2007) (affirming the defendant’s 300 month sentence as

reasonable where the district court considered the defendant’s past crimes when

increasing the defendant’s criminal history category from three to six based on the

defendant’s status as a career offender, again when applying a career offender

enhancement for an adjusted offense level of thirty-four, and a third time when

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considering, under § 3553(a), the fact that the defendant “continuously committed

criminal activity each time he was released from prison”); United States v.

Ortiz-Delgado, 451 F.3d 752, 758–59 (11th Cir. 2006) (affirming the defendant’s

sixty month sentence as reasonable when the district court considered the

defendant’s criminal history in determining the defendant had a criminal history

category of four, again when enhancing his offense level to twenty-one because he

had been previously deported after a crime of violence, and a third time, under §

3553(a), because of his history of sex crimes against children); United States v.

Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006) (affirming the defendant’s 24

month sentence for violating his supervised release when the “district court

adequately considered the § 3553(a) factors in arriving at [his] sentence, including

his criminal history and his threat to the public”). We found no double counting

error in any of these cases.

Accordingly, we conclude that the district court did not err in enhancing

Blackwell’s sentence based on his criminal history and in varying the sentence

upward under § 3553(a) based on that same criminal history. Therefore, there was

no plain error.

Blackwell also contends that the district court’s ultimate sentence of

eighteen months was unreasonable because he had never been convicted of a crime

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involving the use of violence. When “conducting our reasonableness review,

which is highly deferential, we do not apply the reasonableness standard to each

individual decision made during the sentencing process; instead, we review only

the final sentence for reasonableness, in light of the § 3553(a) factors.” Dorman,

488 F.3d at 938.

A sentence will be unreasonable only if it “fails to achieve the purposes of

sentencing as stated in [18 U.S.C.] section 3553(a).” United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). Here, the sentence imposed was outside the

guidelines range, so the sentence is not entitled to an expectation of

reasonableness. See id. (“[W]hen the district court imposes a sentence within the

advisory Guidelines range, we ordinarily will expect that choice to be a reasonable

one.”). However, simply exceeding the guideline range does not make a sentence

unreasonable. See e.g., United States v. Valnor, 451 F.3d 744, 752 (11th Cir.

2006) (affirming a sentence in excess of the guidelines range).

We conclude that Blackwell’s sentence was reasonable. Section 3553(a)

requires consideration of “the nature and circumstances of the offense and the

history and characteristics of the defendant,” and “the need for the sentence

imposed . . . to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense.” Here, as the district court

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said, Blackwell showed a “total failure to cooperate in [his] supervised release”

and to comply with the law. He continued to use cocaine, tried to hide his

continued drug abuse by failing to show up for drug testing appointments, refused

to participate in a drug and alcohol abuse program, and missed meetings with his

probation officer.

AFFIRMED.