United States Court of Appeals
For the First Circuit
No. 08-1216
UNITED STATES OF AMERICA,
Appellee,
v.
JAMEEL GIBBONS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard, Circuit Judge,
and Garcia-Gregory,* District Judge.
James M. Fraser with whom Mark W. Pearlstein and McDermott
Will & Emery LLP were on brief for appellant.
John A. Wortmann Jr., Assistant U.S. Attorney, with whom
Michael J. Sullivan, U.S. Attorney, was on brief for appellee.
January 16, 2009
*
Of the District of Puerto Rico, sitting by designation.
LYNCH, Chief Judge. Defendant Jameel Gibbons challenges
a sentence of ninety-two months' incarceration imposed on him after
he pled guilty to four crack cocaine offenses. Gibbons argues that
the district court miscalculated his criminal history category
("CHC") and, consequently, his Guidelines sentencing range ("GSR")
by improperly assigning him criminal history points for two prior
juvenile offenses. That argument involves consideration of the
latitude given to federal trial judges to interpret state criminal
and juvenile records.
Gibbons also asserts that the district court
misunderstood its authority to vary from the GSR in light of the
sentencing disparity between crack and powder cocaine under
Kimbrough v. United States, 128 S. Ct. 558 (2007). And finally
Gibbons contests the substantive reasonableness of his sentence
because, in his view, the district court did not properly account
for the crack/powder sentencing disparity or his history of mental
illness under the sentencing factors listed in 18 U.S.C. § 3553(a).
These arguments are not supported by the record. We affirm his
sentence.
I.
The Bromley-Heath public housing project, operated by the
Boston Housing Authority ("BHA"), serves Boston's low-income
population in need of affordable housing. In early 2006, Bromley-
Heath had an extremely high rate of drug offenses, violent crimes,
-2-
firearm incidents, fatal shootings, and sexual assaults. Indeed,
one Bromley-Heath building, 279 Centre Street, was one of ten "red
zones" designated by the City of Boston -- a red zone is a hot spot
where a number of shootings have occurred. The FBI and the Boston
Police Department ("BPD") worked together to fight crime in the
project, trying, among other things, to reduce drug trafficking and
the violent crime it breeds. Despite the crime, Bromley-Heath had
a long waiting list of people hoping to live there.
Jameel Gibbons was well known to the BHA; he was under a
no trespass order issued in August 2005, excluding him from
Bromley-Heath and all other BHA projects. Yet Gibbons continued to
return to Bromley-Heath. Indeed, he was arrested for trespassing
at Bromley-Heath on the day after the order had issued. And in
September 2005, less than three weeks after the issuance of the
order, he was shot eight times at Bromley-Heath.
On February 8, 2006, DEA agents attempted to purchase
heroin from Gibbons, who was inside Bromley-Heath, as part of an
investigation unrelated to the FBI/BPD operation. Gibbons fled
before completing the sale, but DEA agents arrested him just
outside of the project and found him in possession of 3.15 grams of
crack cocaine, packaged into twenty-four bags. Later, the FBI/BPD
operation in Bromley-Heath wired a cooperating witness ("CW"), who
recorded his drug transactions with Gibbons. Gibbons made separate
deliveries of crack cocaine to the CW on three dates in April 2006,
-3-
either inside the project or within 1000 feet of it. All of these
sales were recorded, and the total amount of crack cocaine involved
in those three sales was 4.91 grams.
On May 17, 2006, a grand jury indicted Gibbons on one
count of possession of crack cocaine with intent to distribute and
three counts of distribution of crack cocaine, all in violation of
18 U.S.C. § 841(a)(1). The indictment charged that each offense
took place within 1000 feet of a public housing project, in
violation of 21 U.S.C. § 860. On September 21, 2007, Gibbons pled
guilty to all four counts.
These crimes were not Gibbons's first. At the time of
his federal sentencing, his criminal history included ten prior
state convictions, at least seven of which were for violent
offenses. Since age thirteen, he had been under some form of
judicial supervision for all but 103 days. Even when under
judicial supervision, Gibbons had not curbed his criminal conduct;
many of his crimes occurred while he was on probation or pretrial
release. Moreover, the prosecution submitted to the district court
more than forty pages of disciplinary records about Gibbons's
behavior while in custody.
The district court made three things clear at the outset
of Gibbons's sentencing hearing on January 16, 2008. First, it
recognized that Gibbons's counsel could argue that "the distinction
between crack and powder cocaine[] warrants yet a further reduction
-4-
in the sentence" under Kimbrough. The Supreme Court had decided
Kimbrough a little more than a month before Gibbons's sentencing.
Second, the court acknowledged that many of Gibbons's arguments
could be treated both as departures under specific guideline
provisions, such as U.S.S.G. § 5K2.13, and as variances under the
sentencing factors included in 18 U.S.C. § 3553(a). Third, it
stated that its determination of Gibbons's CHC would not likely
impact his sentence because the ninety-two month sentence
recommended by the government was at the low end of the GSR for CHC
VI and in the middle of the GSR for CHC V.
The district court then considered the proper scoring of
Gibbons's criminal history as to three prior juvenile offenses,
described in paragraphs 57 through 59 of the presentence report
("PSR"). The primary issue on appeal is whether the court erred in
its calculation of Gibbons's prior juvenile criminal history under
U.S.S.G. § 4A1.2(d)(2)(A). The first juvenile offense was an armed
assault with intent to kill and an assault and battery with a
dangerous weapon, which occurred on June 18, 2000 when Gibbons was
fifteen years old. Gibbons was adjudicated a youthful offender for
that offense on August 31, 2000 and was committed to the
Massachusetts Department of Youth Services ("DYS") custody until
August 28, 2002, when he was transferred to adult custody until
December 29, 2003.
-5-
The second juvenile offense, an assault and battery and
threats to commit murder, occurred on April 3, 2001 when Gibbons
was sixteen years old. Gibbons was adjudicated a delinquent for
that offense on June 14, 2001. Gibbons was then already in DYS
custody, and DYS records indicate that he was transferred to a
different secure facility on the same day as his adjudication of
delinquency for that offense.
The third offense was an assault and battery --
originally charged as an assault and battery on a corrections
officer -- which occurred on November 26, 2001 while he was in DYS
custody. Gibbons was sixteen years old at the time. He was
adjudicated a delinquent for that offense on January 22, 2002. In
addition to remaining in DYS -- and later adult -- custody, DYS
records state that Gibbons received counseling following his
adjudication of delinquency for that offense.
Under U.S.S.G. § 4A1.2(d)(2)(A), a criminal defendant
receives two criminal history points "for each adult or juvenile
sentence to confinement of at least sixty days if the defendant was
released from such confinement within five years of his
commencement of the instant offense." Gibbons argued to the
district court that because his juvenile records were unclear about
whether his actual term of confinement was at least sixty days for
the second and third offenses described above (as he was already in
custody), he should receive, at most, one criminal history point
-6-
for each offense. See id. § 4A1.2(d)(2)(B) (scoring one point "for
each adult or juvenile sentence . . . not covered in (A)").
The district court concluded that Gibbons had received at
least sixty days' confinement for each of the three offenses
described in paragraphs 57 through 59 of the PSR and awarded him
two criminal history points for each. In making this finding, the
court was well aware that the burden was on the government to show
that Gibbons's juvenile offenses were punished by at least sixty
days confinement. See, e.g., United States v. Brown, 510 F.3d 57,
74-75 (1st Cir. 2007).
In total, the district court gave Gibbons thirteen
criminal history points, which put him into CHC VI with a GSR of 92
to 115 months. The district court also found that CHC VI did not
"overstate the seriousness" of Gibbons's criminal history. The
court told Gibbons:
Your juvenile offenses and those committed
since you have been an adult are horrendous
crimes, and they deserve to be punished and to
be scored as the guidelines have scored them.
There is no justification, in this Court's
opinion, for deeming that they in some way --
or that Category VI in some way overstates the
seriousness of your criminal past. If
anything, your criminal past deserves a longer
penalty than the one I am going to impose, but
in any event, it does not deserve a shorter
one.
The district court also considered and rejected Gibbons's
argument that it should vary downward from the GSR in light of the
crack/powder sentencing disparity, saying:
-7-
With respect to the problem of the
distinction between crack and powder cocaine,
the Court agrees with the government's
suggestion, that notwithstanding all of the
recent activity and the change of the statute
back in 2007 which shortens the amount of time
that crack cocaine criminals are subject to,
it is still the understanding of the
Sentencing Commission and of Congress itself
-- which, of course, has the right in the
ultimate end to change the statute if they
believe that it is inappropriate to consider
the crack and the powder cocaine discrepancy
one that needs to be amended. It is not for
this Court to legislate that.
The Supreme Court has ruled properly in
connection with how the Court is to look at
these distinctions, but it has not instructed
this Court that it needs to discount
completely the statutory enactment which
attributes to crack cocaine a greater
seriousness than to powder cocaine.
Therefore, the Court does not attribute to the
recent decision in Kimbrough any lessons for
the sentence in this case.
Additionally, the district court addressed Gibbons's
request for a downward departure on the basis of his diminished
capacity under U.S.S.G. § 5K2.13, which was based on an opinion
letter from forensic psychologist Dr. John Daignault that described
Gibbons's history of mental illness. The court did not attribute
great weight to Dr. Daignault's evaluation because his examination
of Gibbons was very brief and his assessment did not "instruct [the
court] with respect to the facts that are prevalent from the
written record before [it]." The court denied Gibbons's request
for a downward departure under U.S.S.G. § 5K2.13, saying:
I do not believe that you are of diminished
capacity. I believe that you know what you're
-8-
doing. You know what right and wrong is. And
you have the ability to act on that knowledge.
And you will have the ability to act on that
knowledge when you get out of prison.
Finally, the court considered the sentencing factors
under 18 U.S.C. § 3553(a), including Gibbons's arguments in favor
of varying downward in light of the crack/powder sentencing
disparity and his history of mental illness. Defense counsel
argued eloquently that Gibbons was disadvantaged from the start,
growing up in a home where both parents were drug addicts and
repeatedly incarcerated, and where Gibbons had seen his father beat
his mother. Gibbons had received psychiatric care since he was
eight years old. He had abused marijuana and alcohol even before
he was a teenager and was addicted to cocaine in 2005. His few
federal offenses, for which he was being sentenced, netted him all
of $700, which he had used to live on and to pay for his own
cocaine habit.
The government countered by pointing out that Gibbons
chose to sell crack cocaine, not powder, because crack was more
addictive and cheaper. There was a strong correlation between the
ravaging of Bromley-Heath and the crack dealing that occurred
there. Further, Gibbons's criminal activity started when he was
thirteen years old and had been continuous since.
Gibbons declined to address the court himself. After
hearing these arguments, the district court denied Gibbons's
request for a downward variance because it viewed a sentence within
-9-
the GSR as "eminently fair . . . under the circumstances . . .
having considered all of the written materials and the oral
arguments of counsel." The district court sentenced Gibbons to
ninety-two months in prison followed by seventy-two months of
supervised release, a sentence recommended by the government at the
low end of the GSR. Gibbons had requested forty-eight months in
prison followed by seventy-two months of supervised release. The
district court noted that Gibbons's sentencing occurred on his
twenty-third birthday and expressed its hope that Gibbons would
reflect on his situation and turn his life around.
II.
Gibbons's first argument is that the court erred in the
scoring of the juvenile convictions described in paragraphs 57
through 59 of the PSR by concluding that Gibbons had received
sentences of confinement for sixty days or more for each of those
crimes.
The parties disagree over the standard of review.
Gibbons argues that our review of this issue is de novo, quoting
United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007)
("A question about whether the evidence is sufficient to support a
particular guideline determination is a question of law and,
therefore, engenders de novo review."). Gibbons misunderstands
Ramos-Paulino, which was concerned not with disputed factual
findings but with whether the facts found permitted a conclusion
-10-
that a defendant was "an organizer, leader, manager, or supervisor"
under U.S.S.G. § 3B1.1(c). Indeed, in Ramos-Paulino the problem
was that the district court had failed to make any factual findings
at all in support of its conclusions. Ramos-Paulino, 488 F.3d at
464.
Gibbons's argument is different in kind from the argument
in Ramos-Paulino. His argument is that the court's factual
findings that his juvenile offenses were punished by more than
sixty days of confinement each did not have sufficient evidentiary
support. We review this type of fact-bound challenge for clear
error. See, e.g., United States v. Dixon, 449 F.3d 194, 200 (1st
Cir. 2006). Gibbons cannot show clear error; he cannot show error
at all.
Federal sentencing courts must do the best they can when
drawing conclusions from state court records that were not designed
with the federal Sentencing Guidelines in mind. This is
particularly true of state juvenile records. In Massachusetts, for
example, a juvenile court may commit a child adjudicated as a
delinquent to DYS custody without specifying a particular term of
confinement. See Mass. Gen. Laws ch. 119, § 58. DYS then
determines the placement appropriate for each offender, which could
range from parental release to confinement at a secure facility.
The district court considered Gibbons's juvenile records
and concluded that he had received sentences of sixty days or more
-11-
of confinement for each of the offenses described in paragraphs 57
to 59 of the PSR. Gibbons wisely does not contest that he should
have received two points for the first offense described in
paragraph 57 of the PSR. DYS records show that he began a sentence
of confinement exceeding sixty days following his arraignment for
that offense on June 28, 2000.
With respect to the second and third offenses described
in paragraphs 58 and 59, the record is less clear as to the length
of the sentences that Gibbons received. His juvenile records state
that he was a "committed juvenile" both from June 14, 2001 until
December 29, 2003 for the offense described in paragraph 58 and
from January 22, 2002 until December 29, 2003 for the offense
described in paragraph 59.1 These notations support a
determination that he received concurrent or overlapping sentences
for the offenses described in paragraphs 58 and 59 of the PSR. DYS
records also show that Gibbons was held at secure juvenile
facilities, and later at an adult jail, for periods exceeding sixty
days following his adjudication of delinquency for those offenses.
Moreover, Gibbons's juvenile records show that although
he was already in DYS custody at the time of his adjudication on
1
Gibbons argues that his juvenile record shows that he
received only counseling for the offense listed in paragraph 59.
But his juvenile record states that he was held at various secure
juvenile facilities, as well as at an adult jail, following his
adjudication of delinquency for that offense. It seems likely that
Gibbons received counseling in addition to a sentence to
confinement for the offense listed in paragraph 59.
-12-
the second offense, he was transferred to a different secure
facility on June 14, 2001. This date matches the date of his
adjudication of delinquency for the offense listed in paragraph 58
and indicates that his confinement following that date was, at
least in part, punishment for that crime.
And finally, Gibbons's juvenile crimes were very serious;
both were assault and battery offenses, and one was with a threat
to commit murder. It is unlikely that Gibbons would have received
less than sixty days' confinement for those crimes, given their
violent nature. The district court's calculation of Gibbons's CHC
and, consequently, his GSR was correct.2
Gibbons next argues that the district court misunderstood
its authority under Kimbrough to vary downward from the GSR based
upon the crack/powder sentencing disparity. Gibbons preserved this
issue for appeal,3 and our review is de novo. See United States v.
Saldana, 109 F.3d 100, 103 (1st Cir. 1997).
2
We need not consider the government's alternative
argument that even if the district court erroneously placed Gibbons
in CHC VI, the error was harmless because he received a sentence
that overlapped with the GSR for CHC V.
3
The government argues that Gibbons forfeited this
argument by failing to object contemporaneously to the district
court's statements. But here, Gibbons consistently argued before
the district court that it could vary downward from the GSR under
Kimbrough based upon the crack/powder sentencing disparity. He was
not required to make a formal objection after the district court's
ruling to preserve the issue for appeal. Cf. United States v.
Gallant, 306 F.3d 1181, 1188-89 (1st Cir. 2002).
-13-
Of course, "nothing in Kimbrough requires the district
court to take [the crack/powder sentencing] disparity into account
in every crack case." United States v. Díaz-Fontánez, No. 06-2061,
2008 WL 3188152, at *2 (1st Cir. Aug. 8, 2008) (per curiam) (citing
United States v. King, 518 F.3d 571, 576 (8th Cir. 2008)). Thus,
the mere fact that the district court chose not to vary from the
GSR based upon the crack/powder sentencing disparity is, by itself,
not a basis for vacating Gibbons's sentence. But if the district
court chose not to account for the crack/powder disparity based
upon a mistaken belief that the Guidelines on this issue are
mandatory, that would constitute a "significant procedural error,"
Gall v. United States, 128 S. Ct. 586, 597 (2007), requiring that
we remand for resentencing, see, e.g., United States v. Lipscomb,
539 F.3d 32, 43 (1st Cir. 2008).
Here, the district court was well aware of Kimbrough and
properly understood its authority, saying:
The Supreme Court has ruled properly in
connection with how the Court is to look at
these distinctions, but it has not instructed
this Court that it needs to discount
completely the statutory enactment which
attributes to crack cocaine a greater
seriousness than to powder cocaine.
Therefore, the Court does not attribute to the
recent decision in Kimbrough any lessons for
the sentence in this case.
The district court chose not to vary from the GSR because
it felt that Gibbons "deserve[d] a lengthy prison sentence" in
light of the harm that his crack dealing had caused in the public
-14-
housing project. It considered a sentence within the GSR
"eminently fair . . . under the circumstances . . . having
considered the written material and the oral arguments of counsel."
This case is distinguishable from the one Gibbons cites, United
States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008), where, in
response to a defendant's request for a downward variance on the
basis of the crack/powder sentencing disparity, the district court
said: "The Court finds it has no -- limited discretion, if any.
And if I do have discretion, I exercise my discretion not to
downwardly depart on that basis."
Finally, Gibbons challenges the substantive
reasonableness of his sentence, arguing that the district court
gave inadequate weight to the crack/powder sentencing disparity and
his history of mental illness4 when considering the sentencing
4
Gibbons argues that the district court erred by
considering his mental illness arguments only in the context of his
request for a departure under U.S.S.G. § 5K2.13 and not separately
under the sentencing factors in 18 U.S.C. § 3553(a). The record
does not support this claim. At the outset of the sentencing
hearing, the district court stated: "With respect to the downward
departure issues and the 3553 issues, I will certainly hear
counsel. I have read and carefully considered all of the arguments
that have been made by both parties in anticipation for this
sentencing." Just before pronouncing its sentence, the district
court denied Gibbons's requests to vary from the GSR, saying: "I
believe the guideline sentence is an eminently fair one under the
circumstances that I find myself in today and having considered all
of the written material and the oral arguments of counsel before me
today." Gibbons argued in his sentencing memorandum that the
district court should vary from the GSR under 18 U.S.C. § 3553(a)
in light of his history of mental illness. The district court's
comments demonstrate that it considered and rejected Gibbons's
request for a downward variance on that basis.
-15-
factors in 18 U.S.C. § 3553(a). We review the substantive
reasonableness of Gibbons's sentence under an abuse of discretion
standard, considering the totality of the circumstances. Gall, 128
S. Ct. at 597; see also United States v. Russell, 537 F.3d 6, 13
(1st Cir. 2008).
The sentence was substantively reasonable. Gibbons's
offenses were serious drug crimes committed in and around a public
housing project. Gibbons, although age twenty-one at the time of
his federal offenses, had a lengthy and violent criminal history.
He had been warned to stay away from the Bromley-Heath project and
nonetheless ignored the warning. We will not disturb a well-
reasoned decision to give greater weight to particular sentencing
factors over others, see, e.g., United States v. Deppe, 509 F.3d 54,
62 (1st Cir. 2007), and the district court was well within its
discretion to sentence Gibbons to ninety-two months' imprisonment,
a sentence at the low end of the GSR.
III.
The sentence is affirmed.
-16-