United States v. Devane Jenkins

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 31, 2025
• Docket: 24-10566
• Status: Unpublished

Opinion

USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 1 of 9

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 24-10566 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DEVANE JENKINS,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:15-cr-60121-JEM-2 ____________________ USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 2 of 9

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Before JORDAN, NEWSOM, and LUCK, Circuit Judges. PER CURIAM: Devane Jenkins appeals his sentence for attempted Hobbs Act robbery. Jenkins’s initial 288-month sentence was vacated after the Supreme Court’s ruling in United States v. Taylor, 596 U.S. 845 (2022), undermined one of the two counts under which he was sen- tenced. Upon resentencing for the remaining count, the court im- posed a 210-month sentence. On appeal, Jenkins presents two ar- guments. First, he argues that the district court committed proce- dural error in imposing his sentence when it upwardly departed from his criminal history category of III after finding that it un- derrepresented the seriousness of his prior offenses and the likeli- hood that he would commit future crimes. Second, he argues that his sentence is substantively unreasonable because the district court relied on factors outside the scope of 18 U.S.C. § 3553(a). The facts of the case are known to the parties, and we repeat them here only as necessary to decide the case. After carefully considering the record and the parties’ arguments, we affirm. I We hold that the district court did not commit procedural error in imposing an upward departure. At sentencing, the district court applied an upward departure under U.S.S.G. § 4A1.3(a), rais- ing the criminal history category applicable to Jenkins from III to VI. Jenkins argues on appeal that the court erred in imposing that upward departure. “We review de novo the district court’s USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 3 of 9

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interpretation of any part of the guidelines . . . but we review the extent of a departure only for abuse of discretion.” United States v. Crisp, 454 F.3d 1285, 1288 (11th Cir. 2006) (citation omitted). A district court may depart upward “[i]f reliable information indicates that the defendant’s criminal history category substan- tially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). One such piece of “reliable infor- mation” can be “[p]rior sentence(s) of substantially more than one year imposed as a result of independent crimes committed on dif- ferent occasions.” Id. § 4A1.3(a)(2)(B). The commentary to § 4A1.3 provides examples of when an upward departure from the defend- ant’s criminal history category may be warranted, one of which is “[r]eceipt of a prior consolidated sentence of ten years for a series of serious assaults.” Id., comment (n.2(A)(ii)). The district court also may consider more generally that the defendant has “repeat- edly committed crimes and violated probation with disturbing fre- quency.” United States v. Briman, 931 F.2d 705, 710 (11th Cir. 1991). The presentence investigation report, or PSI, may provide reliable information about criminal conduct on which the court can rely when considering a departure. See United States v. Williams, 989 F.2d 1137, 1142 (11th Cir. 1993) (“The PSI in this case does not contain a mere record of arrests, but provides additional facts drawn from police reports relative to the conduct that prompted the arrests. Nothing before us indicates that the district court relied on an ar- rest record alone.”). USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 4 of 9

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“A court must give the parties advance notice if it is consid- ering departing from the guidelines range calculated in the [PSI] . . . .” United States v. Hall, 965 F.3d 1281, 1295–96 (11th Cir. 2020) (emphasis in original); see also Fed. R. Crim. P. 32(h). Further, if a court departs upward from the otherwise applicable criminal history category under § 4A1.3, it must specify in writing “the spe- cific reasons why the applicable criminal history category substan- tially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(c)(1). The presentence investigation report assigned Jenkins six criminal history points, which established a criminal history cate- gory of III. But it also noted that, under U.S.S.G. § 4A1.3, an up- ward departure may be appropriate. In Jenkins’s case, he had re- ceived a consolidated sentence of four years at one point, meaning that for several of his offenses, he received no criminal history points. The government filed a request for an upward departure, and Jenkins opposed it in his sentencing memorandum. The gov- ernment once again asked for an upward departure at sentencing, and the court granted it, raising Jenkins’s criminal history category from III to VI. Before us, Jenkins makes several arguments that the district court erred in imposing the upward departure. None is per- suasive. First, Jenkins asserts that the court improperly considered his prior four-year sentence for strong-arm robbery under § 4A1.3(a)(2)(B). Application Note 2(A)(ii), he says, refers to a ten- USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 5 of 9

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year sentence, which he contends indicates a hard-and-fast “bench- mark” for a sentence of “substantially more than one year.” But the Application Note is not a benchmark; it is simply an example. We have never drawn a firm line regarding what constitutes “sub- stantially more than one year,” but we are confident that a four- year sentence fits the bill. See, e.g., United States v. Lewis, 954 F.2d 1386, 1397 (7th Cir. 1992) (holding that a three-year sentence qual- ified). Further, the district court made additional findings inde- pendent of § 4A1.3(a)(2)(B). U.S.S.G. § 4A1.3(a)’s test is not limited to the factors listed in § 4A1.3(a)(2), which are merely exemplary of what “reliable information . . . may include.” U.S.S.G. §§ 4A1.3(a)(1), (2) (emphasis added). Rather, we have held that re- liable information regarding “repeatedly committed crimes” can also justify an upward departure. See Briman, 931 F.2d at 710. The PSI in this case made such a finding, reporting that Jenkins’s crimi- nal record showed “a pattern of criminal lifestyle.” And the district court found that Jenkins’s criminal history was “a little bit low for his background” and that his criminal history was significantly un- derrepresented. This is enough to justify a departure. Second, Jenkins asserts that the court made no finding that either (1) his “criminal history category of III substantially under- represented the seriousness of [his] criminal history or the likeli- hood that [he] will commit other crimes” or (2) that the upward departure was made under § 4A1.3(a)(2)(B). To Jenkins’s first point, the court did make such a finding: “An upward departure pursuant to Section 4A1.3 of the guideline range will provide suffi- cient punishment and deterrence, as the defendant’s criminal USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 6 of 9

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history is significantly under-represented.” Tr. of Re-Sentencing Hr’g 15:4–6, ECF No. 140. And to Jenkins’s second point, § 4A1.3(a)(1) doesn’t require a finding that an upward departure is pursuant to a particular item of information described in § 4A1.3(a)(2). Instead, it simply requires a finding that the calcu- lated criminal category is under-representative, which can be proven through information described in § 4A1.3(a)(2), Briman, or both. Further, the court also satisfied Hall’s notice requirement when it told Jenkins’s lawyer at the sentencing hearing that Jenkins is “looking at an upward variance or departure” and allowed him to respond. Tr. of Re-Sentencing Hr’g 11:23–12:2, ECF No. 140; 965 F.3d at 1295–96. Finally, Jenkins asserts that the upward departure “upsets and contravenes” the finality of judgments in Florida’s state court system. But an upward departure doesn’t affect the finality of any judgments and doesn’t upset or reopen any sentences. Rather, the § 4A1.3(a)(1) analysis allows departures from the strictures of the § 4A1.2 analysis when it fails to accurately grasp the extent of an individual’s criminal history. II Second, we hold that Jenkins’s sentence is not substantively unreasonable on the ground that the district court relied on imper- missible factors at sentencing. Jenkins argues on appeal that the district court improperly relied on factors outside the scope of 18 U.S.C. § 3553(a). “[T]he familiar abuse-of-discretion standard of re- view [] applies to appellate review of sentencing decisions.” Gall v. USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 7 of 9

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United States, 552 U.S. 38, 46 (2007). “A district court abuses its dis- cretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judg- ment in considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal quotation marks and citation omitted). “In the context of sentencing, the proper factors are set out in 18 U.S.C. § 3553(a), and a district court com- mits a clear error in judgment when it weighs those factors unrea- sonably, arriving at a sentence that does not ‘achieve the purposes of sentencing as stated in § 3553(a).’” Id. (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). Under § 3553(a), “[t]he district court’s task is to impose a sen- tence that will adequately (1) ‘reflect the seriousness of the of- fense,’ (2) ‘promote respect for the law,’ (3) ‘provide just punish- ment,’ (4) ‘afford adequate deterrence,’ (5) ‘protect the public from further crimes of the defendant,’ and (6) provide the defendant with any needed training and treatment in the most effective man- ner.” United States v. Rosales-Bruno, 789 F.3d 1249, 1253–54 (11th Cir. 2015) (quoting 18 U.S.C. § 3553(a)(2)(A)–(D)). To promote these goals, “the district court [must] consider a variety of factors,” such as: (1) the nature and circumstances of the offense, (2) the defendant’s history and characteristics, (3) the kinds of sentences available, (4) the applicable sen- tencing guidelines range, (5) pertinent policy state- ments of the Sentencing Commission, (5) the need to USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 8 of 9

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provide restitution to any victims, and (6) the need to avoid unwarranted sentencing disparities.

Id. at 1254 (referencing 18 U.S.C. § 3553(a)). Jenkins contends that the court improperly relied on three factors outside the scope of § 3553(a): (1) the perceived “fact” that the state courts in which Jenkins was adjudicated for previous con- victions did not have enough money to operate a sufficient number of jails; (2) the judge’s personal experience with local courts not ap- propriately punishing defendants despite their recidivism; and (3) disagreement with the Supreme Court’s decision in Taylor under which Jenkins had obtained relief. But the court mentioned the first two facts in the course of discussing a potential upward depar- ture under § 4A1.3(a)(1). And those facts are relevant to deciding whether Jenkins’s criminal history was under-representative, meaning that the district court can properly consider them. Fur- ther, despite its statements expressing some concern with poten- tially unforeseen effects of the holding in Taylor, the court did not improperly rely on a disagreement with Taylor or undermine the case. Rather, it respected the holding in Taylor by vacating Jen- kins’s § 924(c) conviction under Count 2 and by not adhering to its original 288-month sentence and instead imposing a substantially lower 210-month sentence upon Jenkins’s resentencing. Jenkins further asserts that the “record is void of any appli- cation of the § 3553(a) factors.” Although the court did not list each § 3553(a) factor, it did not need to. Under our precedent, its state- ment that it considered the § 3553(a) factors is sufficient. United USCA11 Case: 24-10566 Document: 31-1 Date Filed: 01/31/2025 Page: 9 of 9

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States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (“In consid- eration of the § 3553(a) factors . . . [a]n acknowledgment the district court has considered the defendant’s arguments and the § 3553(a) factors will suffice.” (citation omitted)). And the court did discuss several § 3553(a) factors. The court put significant weight on Jen- kins’s criminal history and the nature of the offense, as demon- strated by it questioning whether Jenkins thought a criminal his- tory category of III was “a little bit low,” given his background, and whether the present offense was a crime of violence. * * * For these reasons, Jenkins’s sentence is AFFIRMED.