[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11276 ELEVENTH CIRCUIT
OCTOBER 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00018-CR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRY L. HERRINGTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 23, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Darry L. Herrington appeals his convictions and sentences for armed bank
robbery and brandishing a firearm during the commission of a bank robbery.
Herrington argues that the district court (1) abused its discretion by denying his
motion to withdraw his guilty plea based on his belief that he was not eligible for a
career-offender enhancement, pursuant to U.S.S.G. § 4B1.1, (2) erred in finding
that his prior offenses were proper predicate offenses for purposes of the § 4B1.1
enhancement, and (3) abused its discretion by imposing a substantively
unreasonable sentence. For the reasons set forth below, we affirm.
I.
Herrington was charged in a superseding indictment with two counts of
armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), (“Counts 1 and
3”); and two counts of brandishing a firearm during the commission of a bank
robbery, in violation of 18 U.S.C. § 924(c), (“Counts 2 and 4”). Herrington pled
guilty to Counts 3 and 4.
At the plea hearing, the court noted that Herrington’s jury trial was
scheduled to begin the next morning. Herrington was placed under oath and stated
that he did not suffer from any mental illness or emotional distress, was not taking
medication, and was not under the influence of alcohol or drugs. Herrington
acknowledged that he had a right to a speedy and public jury trial, that the
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government carried the burden of proving his guilt, and that he had the right to be
represented by counsel at trial. Herrington understood that entering a guilty plea
would waive these rights. Herrington also acknowledged that, by pleading guilty,
he would waive his right to be present at his trial, confront the government’s
witnesses, call witnesses on his own behalf, remain silent at trial, and testify in his
own behalf. The court explained that, by pleading guilty, Herrington would “give
up any defenses [he] may have had, and in all likelihood, [he would] forever lose
[his] right to complain on appeal about anything that may have happened in [his]
case.” Herrington initially stated that he did not understand this, but after
conferring with counsel, stated that he did understand.
Herrington stated that he had met with counsel approximately 16 times and
was satisfied with counsel. The court explained what the government would have
to prove to convict Herrington of Counts 3 and 4. The court then explained that
“[t]he maximum sentence by statute that the Court could impose for a violation of
Count Three would be imprisonment for not more than twenty-five years . . . and
five years supervised release.” The court noted that
the maximum sentence by statute that the Court could
impose for Count Four would be a sentence of
imprisonment not less than seven years in addition to that
imposed as to Count Three. However, if this is your
second or a subsequent conviction under § 924(c), then
the term would be not less than twenty-five years
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imprisonment pursuant to 18 USC § 924(c)(1)(C), and a
supervised release term of five years.
The court stated that it would consider the sentencing guidelines and the 18 U.S.C.
§ 3553 sentencing factors in determining Herrington’s sentence. The court again
pointed out that
there is a mandatory minimum in connection with the 18
USC 924(c) charge, that is, a mandatory minimum of
seven years for a conviction of Count Four in addition to
whatever the sentence imposed is for Count Three.
Additionally, if this is a second or subsequent 18 USC
§ 924(c) conviction for you, then the mandatory
minimum is twenty-five years for a conviction of Count
Four in addition to whatever you receive for Count
Three.
It noted, “[a]ny guideline estimates that may have [been] made by your lawyer or
the prosecution or the probation officer are just that. They are estimates, their best
understanding of what your guideline range might be. But neither themselves nor
the Court is bound by any estimate.” Herrington stated that he was pleading guilty
because he was, in fact, guilty of Counts 3 and 4 of the superseding indictment.
The court found that Herrington was not under the influence of medication,
alcohol or drugs, understood the substance and meaning of the charges against
him, and understood the consequences of entering a guilty plea. It determined that
Herrington had been assisted by a competent attorney who met with him on 16
occasions and with whom he had discussed the plea agreement and sentencing
4
guidelines. Herrington affirmed that he was entering a guilty plea freely and
voluntarily, and the court found that Herrington had not been coerced or influenced
into pleading guilty.
William Kirkconnell, a special agent with the FBI stationed in Savannah,
Georgia, testified as to the factual basis for the plea. Agent Kirkconnell stated that,
on May 21, 2008, a man later identified as Herrington entered the Bank of America
branch on St. Simons Island and handed to a teller a note demanding 100 and 50
dollar bills. The teller gave Herrington $2,350, and Herrington took the note and
left the bank. Video surveillance from the bank depicted Herrington holding a
silver handgun in his right hand while robbing the bank. Agent Kirkconnell stated
that Herrington confessed to committing the robbery after waiving his Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights. Herrington
also admitted to robbing an Atlantic National Bank branch on April 10th, during
which he brandished a silver firearm and stole $17,460.
Herrington told the court that he did not disagree with any of Agent
Kirkconnell’s statements and stated that he did, in fact, rob the Bank of America on
St. Simons Island, while brandishing a handgun. The court determined that there
was a strong factual basis for the plea and approved the plea agreement.
Accordingly, it found Herrington guilty of Counts 3 and 4 of the superseding
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indictment.
According to the presentence investigation report (“PSI”), on April 10, 2008,
Herrington entered the Atlantic National Bank in Brunswick, Georgia, approached
a teller, pulled a semiautomatic handgun from his pants, and placed it on the
counter. Herrington told the teller “Give me your 100s, don’t move, don’t hit the
alarm, I will blow your head off bitch.” The teller gave Herrington the money,
which Herrington placed in a bank bag before exiting the building. An internal
audit conducted by Atlantic National Bank revealed that Herrington had stolen
$17,460. On April 23, 2008, an arrest warrant was issued for Herrington.
At approximately 1:00 p.m. on May 21, 2008, Herrington approached a
teller at the Bank of America on St. Simons Island, Georgia, and placed on the
counter a note reading “This is a robbery, all 100s and 50s.” The teller stated that
Herrington was holding a handgun in his right hand and a money bag in his left
hand. The teller gave Herrington money from her teller drawer, which Herrington
placed in the money bag. Herrington then retrieved the note and exited the bank
through the front door. An audit conducted by Bank of America revealed that
Herrington had stolen $2,350.
On May 23, 2008, Herrington was arrested in Jacksonville, Florida.
Herrington eventually admitted committing both robberies. The PSI noted that
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Herrington cannot be attributed with his criminal conduct
from the April 10, 2008, robbery at the Atlantic National
Bank since such conduct is not incorporated in the
offenses of conviction. However, the details of that
robbery have been included above because Herrington’s
plea agreement contained his agreement to pay restitution
as to that robbery in addition to restitution ordered as to
the offenses of conviction.
The PSI initially assigned Herrington a base offense level of 20, pursuant to
U.S.S.G. § 2B3.1. However, because Herrington had prior convictions for
conspiracy to possess with intent to distribute cocaine base, using and carrying a
firearm during the commission of a crime of violence, and second-degree robbery,
Herrington was considered a career offender under § 4B1.1 and his base offense
level was enhanced to 34. Herrington received a two-level reduction for
acceptance of responsibility, pursuant to § 3E1.1(a), resulting in a total offense
level of 32. Because Herrington qualified as a career offender, he was subject to
criminal history category VI. The guideline imprisonment range on Count 3, based
on a total offense level of 32 and a criminal history category of VI, was 210 to 262
months. With respect to Count 4, Herrington was subject to a statutory minimum
term of 25 years’ (300 months’) imprisonment, to run consecutively with any other
sentence. Thus, pursuant to U.S.S.G. § 4B1.1(c)(2)(A), Herrington’s guideline
imprisonment range on both counts was 510 to 562 months.
The criminal history section of the PSI indicated that Herrington was
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arrested on October 24, 1992, and charged, in the U.S. District Court for the
Southern District of Indiana, with conspiracy, unlawful transportation in interstate
commerce of stolen goods with a value of more than $5,000, and conspiracy to
possess with intent to distribute more than 50 grams of cocaine base. These
charges were based on Herrington’s participation in planning and executing an
October 14, 1992, jewelry store robbery in Indianapolis, Indiana. Herrington pled
guilty to all 3 counts and, on April 14, 1993, was sentenced to a total of 121
months’ imprisonment.
On February 8, 1995, Herrington was arrested and charged, in the U.S.
District Court for the Southern District of California, with interference with
commerce by robbery and using and carrying a firearm during the commission of a
crime of violence. These charges arose from an August 12, 1992, jewelry store
robbery in San Diego, California. On August 17, 1995, Herrington was sentenced
to a total of 43 months’ imprisonment for these offenses.
On July 1, 1997, Herrington was arrested and charged in San Bernadino,
California Superior Court with second-degree robbery, based on his involvement in
a July 24, 1992, jewelry store robbery in Fontana, California. On October 8, 1997,
Herrington was sentenced to three years’ imprisonment, to run concurrently with
any other sentence. Neither party filed objections to the PSI.
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Prior to sentencing, Herrington filed a motion to withdraw his guilty plea,
asserting that he had been “incorrectly advised of possible sentence enhancements
pursuant to [Section] 4B1.1.” At the sentencing hearing, Herrington’s counsel
explained that he failed to advise Herrington, prior to entering the guilty plea, that
he would be eligible for a career offender sentencing enhancement under U.S.S.G.
§ 4B1.1. Herrington himself then addressed the court, stating that the offenses
upon which the career-offender enhancement was based were part of a single
conspiracy.
The court found that Herrington did not have a fair and just reason for
withdrawing his guilty plea. It noted that it was required to consider four factors in
determining whether Herrington should be permitted to withdraw his guilty plea:
(1) whether Herrington had close assistance of counsel, (2) whether Herrington’s
plea was knowing and voluntary, (3) whether judicial resources would be
conserved by allowing withdrawal of the plea, and (4) whether the government
would be prejudiced by the withdrawal. With respect to the first factor, the court
noted that Herrington had stated under oath, at the plea hearing, that he had met
with counsel 16 times, was satisfied with counsel, and had a close relationship with
counsel. The court determined that Herrington’s guilty plea was entered
knowingly and voluntarily because (1) Herrington’s reliance on counsel’s mistaken
9
estimate of the length of sentence was insufficient to render the plea involuntary,
(2) Herrington was informed at the plea hearing of the maximum possible
sentences on Counts 3 and 4, and (3) Herrington evidenced an understanding at the
plea hearing that any sentence estimate provided by his attorney was only an
estimate. The court also noted that the conservation of judicial resources “does not
favor a withdrawal in this case.” With respect to the fourth factor, the government
noted that it would be prejudiced by withdrawal of the guilty plea because
“witnesses stood up in anticipation of the trial. The day before the trial, they stood
down. Their memories have been affected by the time frame since the guilty plea.”
The government also noted that the robbery was an emotional experience for the
witnesses, who would “have to relive all their trauma” if a trial was held. The
court determined that “there [wa]s a viable argument that the Government would
be prejudiced from withdrawal of the plea” and denied Herrington’s motion to
withdraw his guilty plea.
The court proceeded to sentencing and Herrington again asserted that his
prior convictions were actually part of one overall conspiracy and asked the court
to consider the offenses as one conviction. The probation officer noted that the
prior convictions involved separate robberies and that the Indiana conviction
involved the possession of crack cocaine. He noted that the convictions occurred
10
on different dates, in different jurisdictions, and in different states. The probation
officer further noted that Herrington “is a career offender according to the
guidelines. So regardless whether or not those are scored together or separately,
we believe he is still a career offender.” The court overruled Herrington’s
objection.
Herrington again stated that his prior convictions were part of an overall
conspiracy because “the [Indiana] robbery itself was to pay for the cocaine.” He
explained “[t]hat case was an overall conspiracy from Indianapolis to San Diego,
from San Diego to Fontana. Those are the cases that I have a problem with in my
[PSI]. Those are the things that tie in because the cocaine – the robbery was to pay
for the drugs.” The probation officer noted that a PSI was prepared for
Herrington’s Indiana robbery case in January 1993, as well as his California
robbery case in 1995. He noted that the PSI for the California case included
criminal-history points for the prior Indiana robbery conviction and that Herrington
did not argue at the time that the Indiana conduct was part of an overall conspiracy
involving the California conduct. The court again overruled Herrington’s
objection.
The court adopted the factual findings and guideline calculations contained
in the PSI, determining that Herrington was subject to a total offense level of 32, a
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criminal history category of VI, a guideline imprisonment range of 510 to 562
months’ imprisonment, 3 to 5 years’ supervised release, a $17,500 to $175,000
fine, and $19,810 restitution. It noted that the statutory maximum penalty for
Count 3 was 25 years’ imprisonment, and the statutory minimum term of
imprisonment as to Count 4 was 25 years, which must run consecutively to any
other sentence.
Herrington asked the court to consider his age upon release from
incarceration, noting that he was presently 40 years’ old. He noted that he did not
commit any offenses between 1992 and 2003 and that he was working for a law
firm when he was arrested in 2003. Herrington acknowledged that he was
incarcerated for several years between 1992 and 2003. Herrington himself
addressed the court, stating that he had made some poor decisions, but that he had
committed the robberies to support his family. He asked the court for leniency.
The court stated that it had listened to the arguments of Herrington and his
attorney, reviewed the PSI, and considered all the factors set forth in 18 U.S.C.
§ 3553. The court sentenced Herrington to 510 months’ imprisonment, consisting
of 210 months on Count 3 and a consecutive term of 300 months on Count 4. The
court stated that it sentenced Herrington to the low end of the guideline range
because 510 months’ imprisonment was “an adequate term of incarceration for the
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conduct that was exhibited.” It ordered restitution in the amount of $19,810 and
ordered Herrington to serve 5 years’ supervised release on each of Counts 3 and 4,
to run concurrently. Neither party stated additional objections to the sentence.
II.
Motion to Withdraw Guilty Plea
We review a district court’s decision to deny a motion to withdraw a guilty
plea for an abuse of discretion. United States v. Medlock, 12 F.3d 185, 187 (11th
Cir. 1994). “The district court may be reversed only if its decision is arbitrary or
unreasonable.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988).
After the district court has accepted a guilty plea and before sentencing, the
defendant may withdraw a guilty plea if (1) the district court rejects the plea
agreement, or (2) “the defendant can show a fair and just reason for requesting the
withdrawal.” Fed.R.Crim.P. 11(d)(2)(A)-(B).
In determining whether the defendant has met his burden of showing “a fair
and just reason for requesting the withdrawal,” a district court may consider the
totality of the circumstances surrounding the plea, including the following factors:
“(1) whether close assistance of counsel was available; (2) whether the plea was
knowing and voluntary; (3) whether judicial resources would be conserved; and (4)
whether the government would be prejudiced if the defendant were allowed to
13
withdraw his plea.” Buckles, 843 F.2d at 472 (citation omitted). The district court
is not required to find prejudice to the government before it can deny a defendant’s
motion to withdraw. Id. at 474. “There is a strong presumption that the statements
made during the [plea] colloquy are true.” Medlock, 12 F.3d at 187.
Here, in requesting to withdraw his guilty plea, the burden was on
Herrington to establish a “fair and just reason” for the court to grant withdrawal.
See Fed.R.Crim.P. 11(d)(2)(B). With respect to the first Buckles factor, the district
court did not abuse its discretion in determining that Herrington had close
assistance of counsel. At the plea hearing, Herrington stated that he met with
counsel 16 times and was satisfied with counsel’s performance, and the court
specifically found that Herrington had been represented by a competent attorney.
Herrington’s argument that counsel failed to inform him that he could be subject to
a career offender is a question of whether counsel’s performance was deficient,
rather than whether close assistance of counsel was available. Because Herrington
was represented by counsel throughout the proceedings and stated at the plea
colloquy that he was satisfied with counsel, Herrington failed to show that he was
deprived of close assistance of counsel.
With respect to the second factor, Herrington argues that his plea was not
knowing and voluntary because he was unaware that he could be subject to the
14
career-offender enhancement. However, at the plea colloquy, the court informed
Herrington that any sentencing estimates made by counsel were simply estimates
that were not binding on the court. Furthermore, the court informed Herrington on
two occasions that he would face a mandatory minimum of 25 years’ imprisonment
on Count 4 if he had a prior § 924(c) conviction. The court also explained that it
could impose a sentence of up to 25 years’ imprisonment on Count 3. Thus,
Herrington was on notice, at the change-of-plea hearing, that he could face 50
years’ imprisonment if he pled guilty to Counts 3 and 4. Because the district court
at the plea hearing informed Herrington of the maximum possible penalties he
faced and the fact that the court was not bound by counsel’s sentencing estimates,
Herrington has failed to show that his plea was not entered knowingly and
voluntarily. See United States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001)
(affirming the denial of the defendant’s motion to withdraw his guilty plea based
on the defendant’s contention that he relied on his attorney’s sentencing prediction,
which failed to take into account defendant’s career offender status, because the
district court advised defendant during the plea colloquy that the statutory
maximum sentence was life and that the court was not bound by counsel’s
predictions).
The district court also did not abuse its discretion in determining that judicial
15
resources would not be conserved by allowing Herrington to withdraw his guilty
plea because withdrawal of the plea would have required the government to recall
all witnesses, and the parties and court would have had to proceed to trial. Finally,
the district court did not err in determining that the government would be
prejudiced by allowing withdrawal of the guilty plea. The government explained
that it would have to recall witnesses that it had previously instructed to “stand
down” only one day before trial was scheduled. Moreover, the district court was
permitted to deny Herrington’s motion to withdraw even if it had found that the
government would not be prejudiced by the withdrawal. See Buckles, 843 F.2d at
474. Accordingly, because Herrington failed to establish a fair and just reason for
requesting the withdrawal of his guilty plea, the district court’s decision to deny his
motion was neither arbitrary nor unreasonable. See id. at 471.
Career Offender Enhancement
We review a district court’s application and interpretation of the Sentencing
Guidelines de novo and its findings of fact for clear error. United States v. Rhind,
289 F.3d 690, 693 (11th Cir. 2002). Specifically, we review a factual finding that
prior convictions are unrelated under U.S.S.G. § 4A1.2 for clear error. United
States v. Wilks, 464 F.3d 1240, 1243 (11th Cir. 2006). A defendant is considered a
career offender under U.S.S.G. § 4B1.1 if:
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(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence of a controlled
substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1(a). Section 4B1.2(c) states that “‘two prior felony convictions’
means . . . the sentences for at least two of the . . . felony convictions are counted
separately under § 4A1.1(a), (b), or (c),” which list the number of points assigned
to prior sentences. U.S.S.G. § 4B1.2(c). Section 4A1.2(a)(2) provides that
Prior sentences always are counted separately if the
sentences were imposed for offenses that were separated
by an intervening arrest (i.e., the defendant is arrested for
the first offense prior to committing the second offense).
If there is no intervening arrest, prior sentences are
counted separately unless (A) the sentences resulted from
offenses contained in the same charging instrument; or
(B) the sentences were imposed on the same day.
U.S.S.G. § 4A1.2(a)(2) (2007) (emphasis added).
Herrington asserts that he does not have two prior felony convictions for
crimes of violence because the offenses outlined in paragraphs 32-34 of the PSI
should be considered one offense. A review of the PSI indicates that the sentences
imposed for the offenses in paragraphs 32-34 were not separated by intervening
arrests because the offenses were committed between July 24, 1992, and
17
October 14, 1992, and Herrington was first arrested on October 24, 1992.1
Therefore, the offenses are considered separate unless (A) the sentences resulted
from offenses contained in the same charging instrument, or (B) the sentences were
imposed on the same day. See U.S.S.G. § 4A1.2(a)(2). The offenses in these
paragraphs were not contained in the same charging instrument because they were
prosecuted in different jurisdictions – United States District Court for the Southern
District of Indiana, United States District Court for the Southern District of
California, and San Bernadino Superior Court. Furthermore, the sentences were
not imposed on the same day. Herrington was sentenced in the Southern District
of Indiana on April 14, 1993, in the Southern District of California on August 9,
1996, and in San Bernadino Superior Court on October 8, 1997. Thus, the district
court correctly found that Herrington’s prior convictions were separate offenses
and that he, therefore, qualified for the career-offender enhancement.
Herrington also argues, for the first time on appeal, that he should have been
sentenced under the pre-2007 Sentencing Guidelines. Because Herrington failed to
raise this argument before the district court, plain-error review applies. See United
States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995) (noting that we
“consider[] sentence objections raised for the first time on appeal under the plain
1
Although there were separate arrests for these three offenses, they were not “intervening
arrests” by definition.
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error doctrine”). “Under the plain error standard, before an appellate court can
correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3)
that affects substantial rights.” United States v. Smith, 459 F.3d 1276, 1283 (11th
Cir. 2006). We will correct a plain error only if “the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.
The Sentencing Guidelines instruct courts to “use the Guidelines Manual in
effect on the date that the defendant is sentenced” or, “[i]f the court determines that
use of the Guidelines Manual in effect on the date that the defendant is sentenced
would violate the ex post facto clause of the United States Constitution, the court
shall use the Guidelines Manual in effect on the date that the offense of conviction
was committed.” U.S.S.G. §§ 1B1.11(a), (b)(1). Because Herrington was
sentenced on March 2, 2009, the district court did not err, much less plainly err, in
sentencing Herrington pursuant to the November 1, 2008, guidelines.
Furthermore, even if the court had determined that it should use the Guidelines
Manual in effect on the date that the offense of conviction was committed,
Herrington would have been subject to the November 1, 2007, Guidelines Manual
because the offense conduct occurred in April and May of 2008. In both the 2007
and 2008 Guidelines Manual, §§ 4B1.1(a) and § 4A1.2(a)(2) are identical.
Compare U.S.S.G. §§ 4B1.1(a), 4A1.2(a)(2)(2007) with U.S.S.G. §§ 4B1.1(a),
19
4A1.2(a)(2)(2008). Accordingly, the district court did not abuse its discretion in
sentencing Herrington as a career offender.
Reasonableness of the Sentence
We review a defendant’s sentence for reasonableness under an
abuse-of-discretion standard. United States v. Pugh, 515 F.3d 1179, 1190 (11th
Cir. 2008). “[A]fter giving both parties an opportunity to argue for whatever
sentence they deem appropriate, the district judge should then consider all of the
§ 3553(a) factors to determine whether they support the sentence requested by the
party.” Gall v. United States, 552 U.S. 38, __, 128 S.Ct. 586, 596, 169 L.Ed.2d
445 (2007). The § 3553(a) factors the court must consider are:
(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 needed educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need
to provide restitution to victims.
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S.C.
§ 3553(a)). After considering the § 3553(a) factors, the court “must make an
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individualized assessment based on the facts presented.” Gall, 552 U.S. at __, 128
S.Ct. at 597. We have recognized that “there is a range of reasonable sentences
from which the district court may choose.” Talley, 431 F.3d at 788.
Herrington’s sentence consisted of the statutory mandatory minimum 25
years’ (300 months’) imprisonment on Count 4 and 210 months’ imprisonment on
Count 3, which was at the low end of the applicable guideline range. Viewing the
record as a whole, the district court did not abuse its discretion in sentencing
Herrington at the low end of the guideline range with respect to Count 3. The
district court stated that it had considered the parties’ arguments, as well as the
§ 3553(a) sentencing factors in determining a reasonable sentence. Herrington’s
offense involved an armed robbery of a public bank, and his criminal history
indicated that he had committed several similarly dangerous crimes in the past.
Thus, the nature and circumstances of the offense, Herrington’s history and
characteristics, the need to reflect the seriousness of the offense, promote respect
for the law, and provide just punishment for the offense, the need for deterrence,
and the need to protect the public all justify the imposition of a sentence within the
guideline range. See Talley, 431 F.3d at 786; 18 U.S.C. § 3553(a). Furthermore,
the district court was not required to consider Herrington’s age in determining a
reasonable sentence. See Talley, 431 F.3d at 786; 18 U.S.C. § 3553(a).
21
Accordingly, Herrington has failed to show that his sentence was substantively
unreasonable and we affirm Herrington’s convictions and sentences.
AFFIRMED.
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United States v. Darryl L. Herrington
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2009-10-23
Citations: 350 F. App'x 363
Copy CitationsCombined Opinion