United States v. De'Von Le'Edward Walker

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 19, 2020
• Docket: 20-11286
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11286 Non-Argument Calendar ________________________

D.C. Docket No. 4:19-cr-00127-RSB-CLR-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DE'VON LE'EDWARD WALKER,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Georgia ________________________

(November 19, 2020)

Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM: USCA11 Case: 20-11286 Date Filed: 11/19/2020 Page: 2 of 14

De’Von Le’Edward Walker appeals his 240-month sentence for Hobbs Act

robbery. He argues that the district court’s 78-month upward variance to the

statutory maximum was procedurally and substantively unreasonable. After

careful review, we affirm.

I.

In 2019, Walker was charged in an indictment with Hobbs Act robbery, in

violation of 18 U.S.C. § 1951 (Count 1); using a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c) (Count 2); and possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count 3). The

indictment alleged that all three counts arose from a December 2018 robbery of an

auto repair garage in Savannah, Georgia.

Walker pled guilty to Count 1, pursuant to a written plea agreement, and the

government moved to dismiss the remaining charges at sentencing. In the plea

agreement, the government agreed to recommend that the degree of injury suffered

by the victim was between bodily injury and serious bodily injury, such that a

three-level sentencing enhancement should apply.

Walker’s presentence investigation report (“PSR”) described his offense as

follows. In December 2018, Walker, who was wearing a t-shirt over his face and

brandishing a gun, approached Automotive Repair on Wheels near the close of

business and demanded money from an employee, Marc Livingston. Livingston

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went into the garage’s business office and retrieved a bank bag, which fell to the

floor when he tried to hand it to Walker. Walker then shot Livingston in the right

shoulder, and a physical altercation ensued. During the struggle, Livingston

removed the t-shirt from Walker’s head and eventually gained control of the gun.

Walker fled the garage with $130.

Security cameras at the garage captured the robbery, and Walker’s family

members, state probation officer, and federal probation officer all confirmed that

Walker was the person captured on the video.

The PSR recommended a guideline imprisonment range of 130 to 162

months based on a total offense level of 27 and a criminal-history category of VI.

In calculating the offense level, the PSR set the base offense level at 20. See

U.S.S.G. § 2B3.1(a). The PSR then added seven levels because Walker discharged

a firearm, see id. § 2B3.1(b)(2)(A), and three levels because the victim sustained a

degree of injury between bodily injury and serious bodily injury, see

id. § 2B3.1(b)(3)(D). Finally, the PSR applied a three-level reduction for

acceptance of responsibility. See id. § 3E1.1.

The PSR also described Walker’s criminal history. According to the PSR,

Walker’s criminal-history category of VI was based entirely on seven convictions

for which the underlying conduct occurred between 2013 and 2015, when Walker

was 18 to 21 years old. Of those, Walker had two prior state convictions for

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carrying a concealed weapon. And in May 2016, Walker was sentenced in federal

court to 30 months’ imprisonment following a conviction for conspiracy to

counterfeit U.S. currency. He committed the instant offense less than four months

after being released from federal custody. And he faced four pending state charges

for the offense here, as well as revocation of his state probation and federal

supervised release.

The probation officer recommended a sentence of 145 months’

imprisonment, noting that she applied a three-level injury enhancement based on

the parties’ agreement, but opining that Livingston’s injury was serious enough to

warrant a larger enhancement. She also noted that Walker received two criminal-

history points for committing the offense while under supervision, but the

Guidelines did not provide for additional points for being under both state parole

and federal supervised release at the time of the offense.

Walker did not file any objections, and the district court adopted the PSR at

sentencing.

At sentencing, the government presented video footage of the incident that

had been captured on Automotive Repair’s surveillance cameras. Livingston

testified that it was “terrifying” to watch the video and “relive it all over again,”

and stated that he felt lucky to be alive.

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The video, which did not have sound, showed the following. At

approximately 9:39 p.m. on the night of the robbery, Livingston was cleaning

when Walker came inside with his entire head covered, pointed a gun at

Livingston, and knocked him to the ground. Livingston led Walker into an office,

opened a file cabinet, and attempted to pass Walker a handful of bound bills and a

bank bag, all while Walker had the gun pointed at his head or neck. The bag

dropped to the floor, and Walker shot Livingston. A struggle ensued, during which

Livingston removed Walker’s head covering and gained control of Walker. With

Livingston holding him from behind, Walker made several attempts to place a

magazine into his firearm. At one point, Walker bent his arm behind him and

pointed the gun at Livingston’s abdomen. Almost simultaneously, Livingston

brought Walker to the floor. They continued to struggle out of sight, and

Livingston eventually led Walker out of the shop and turned him loose.

The district court asked Livingston if it saw correctly on the video that

Walker was attempting to put a magazine into his firearm. Livingston replied that,

from what he could remember, the magazine had fallen from the gun before he was

shot. After Walker shot him with the bullet in the chamber, Walker had grabbed

the magazine and tried to put it back into the gun. He stated that part of his

struggle was to keep Walker from reloading his weapon.

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The government recommended a sentence at the high end of the guideline

range, pointing out that Walker was only 25 years old and already had enough

criminal history points to place him in the highest category. It argued that the

video showed that Livingston had complied with Walker’s instructions, yet he shot

him once and tried to reload the gun to shoot him again.

Walker requested a sentence at the low end or middle of the guideline range.

He noted that he was likely facing an additional 30 to 37 months of imprisonment

from the revocation of his supervised release, as well as a sentence for the state

charges arising from the instant offense. Walker personally addressed the court.

He stated that he did not try to kill Livingston and when the gun went off, he got

scared and tried to get away. He apologized to the victims, their families, and the

court.

The district court stated that it had listened to the parties’ arguments, read

Walker’s sentencing memorandum and the PSR, and considered the Guidelines

and the facts of the case. It sentenced Walker to 240 months’ imprisonment, to be

served consecutively to any sentence imposed upon revocation of his state

probation or his federal supervised release.

The district court stated that its sentence was an upward variance from the

guideline range pursuant to the 18 U.S.C. § 3553(a) factors. It stated that the

nature and circumstances of the offense were “chilling,” explaining,

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If you look at that video, I don’t think it’s all that unclear what happened. This is someone who came in with a loaded gun, pointed it in the face of a man that was just trying to do his job. It turned out to be—first, it was a crime of violence and greed, and then even after he shot him, it appears from the video that he tried to reload the firearm and shoot him again.

Next, it noted that Walker, despite his youth, had “amassed a significant criminal

history,” which got more serious as time went on. The court stated that many

points in his history could have served as a “wake-up call,” but instead he

continued to display a disrespect for the law and for the safety of the community.

In further explanation, the district court stated that it imposed the sentence to

reflect the seriousness of the offense, finding that the guideline range was “just

wrong” and not reflective of Walker’s offense conduct, despite the enhancements

for his use of the firearm and for Livingston’s injury. Next, the district court

reasoned that its sentence would provide just punishment, would promote respect

for the law and would provide both specific and general deterrence, and was

necessary to protect the public. The court noted that it was troubled by Walker’s

history of firearm possession. Last, it observed that Walker had been on state

probation and federal supervised release at the time of the offense and continued to

disregard the law while still under sentence.

After the court imposed the 240-month sentence, Walker objected to the

upward variance. He now appeals.

II. 7 USCA11 Case: 20-11286 Date Filed: 11/19/2020 Page: 8 of 14

On review, we ensure that a sentence is both free from significant procedural

error and substantively reasonable. Gall v. United States, 552 U.S. 38, 51 (2007).

The party challenging the sentence bears the burden of establishing that it is

unreasonable. United States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018).

Significant procedural errors include failing to consider the 18 U.S.C. § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, and failing to

adequately explain the chosen sentence. Id. Review for substantive

reasonableness involves examining the totality of the circumstances, including an

inquiry into whether the § 3553(a) factors support the sentence. United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

A.

Walker argues that the district court procedurally erred in several ways. He

contends that the district court relied on its clearly erroneous finding that the video

showed him attempting to shoot Livingston a second time, did not adequately

explain its decision to vary upward, and did not consider all the § 3553(a) factors.

Walker has not demonstrated procedural error.

1.

First, the district court did not rely on a clearly erroneous fact when it found

that the surveillance video showed Walker attempting to shoot Livingston a second

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time. 1 A factual finding is clearly erroneous when, upon review of the evidence,

we are left with a definite and firm conviction that a mistake has been made.

United States v. Cruickshank, 837 F.3d 1182, 1192 (11th Cir. 2016). The district

court’s choice between two permissible views of the evidence will rarely constitute

clear error. Id.

Here, the video shows, and Livingston confirmed in his testimony, that

Walker repeatedly attempted to insert the dropped magazine back into his firearm

after firing the bullet that was left in the chamber. The video also shows Walker

pointing the gun directly at Livingston’s abdomen, although it is not clear whether

Walker had successfully loaded the weapon at that point. Walker argues that the

district court was wrong to infer from his attempts to reload his weapon that he

intended to shoot Livingston a second time. But Walker had already shot

Livingston once, Livingston subsequently overpowered and unmasked Walker, and

Walker was trying to reload his weapon while actively fighting Livingston. So we

conclude that the district court’s finding was a permissible view of the evidence,

and we will not disturb it. See Cruickshank, 837 F.3d at 1192.

2.

1 The parties dispute whether Walker preserved a challenge to the district court’s interpretation of the surveillance video. Because we uphold the district court’s finding under the more stringent clear-error standard, we need not decide whether plain-error review should apply. 9 USCA11 Case: 20-11286 Date Filed: 11/19/2020 Page: 10 of 14

Next, the record shows that the district court adequately considered the

§ 3553(a) factors and explained its reasons for varying upward.

At sentencing, the district court is required “to state in open court the

reasons for its imposition of a particular sentence.” 18 U.S.C. § 3553(c). In doing

so, the district court need not provide detailed reasoning or make specific findings

about the § 3553(a) factors. United States v. Irey, 612 F.3d 1160, 1195 (11th Cir.

2010) (en banc). Rather, the court’s explanation must simply be adequate “to

satisfy the appellate court that [it] has considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v.

United States, 551 U.S. 338, 356 (2007). The amount of explanation needed

depends on the circumstances of each individual case. Id. If the district court

chooses a sentence outside the guideline range, it should explain why the variance

is appropriate in that particular case. United States v. Moran, 778 F.3d 942, 983

(11th Cir. 2015).

Here, the district court stated that it had considered the § 3553(a) factors and

expressly discussed most of the factors, even though it was not required to make

specific findings or explain its reasoning in great detail. See Irey, 612 F.3d at

1195. The court also extensively explained its reasons for varying upward when it

addressed the “chilling” nature and circumstances of Walker’s crime, Walker’s

disregard for the safety of the community and well-being of others, and Walker’s

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recidivism. It elaborated that Walker did not seem deterred by his previous

sentences and that a statutory maximum sentence may better deter him. It also

noted Walker had an “extremely troublesome” history of gun possession and that

he had demonstrated a disregard for the law by committing the crime only four

months after being released from federal custody and while still under federal and

state sentences. We are satisfied that the district court considered the § 3553(a)

factors and the parties’ arguments, had a reasoned basis for its chosen sentence,

and adequately explained its decision to vary upward. See Rita, 551 U.S. at 356;

Moran, 778 F.3d at 983.

B.

As for substantive reasonableness, Walker has not shown that the district

court abused its discretion by sentencing him to 240 months in prison or by failing

to provide a substantial justification for its 78-month upward variance. See United

States v. Hayes, 762 F.3d 1300, 1307 (11th Cir. 2014) (“We review the substantive

reasonableness of a sentence for abuse of discretion.”); United States v. Rodriguez,

628 F.3d 1258, 1264 (11th Cir. 2010) (“The district court has wide discretion to

decide whether the section 3553(a) factors justify a variance.”).

When reviewing for substantive reasonableness, we ordinarily will vacate a

sentence only if we are left with “the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

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arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” Irey, 612 F.3d at 1190 (quotation marks omitted). A district

court abuses its discretion when it (1) fails to consider relevant factors that were

due significant weight, (2) gives significant weight to an improper or irrelevant

factor, or (3) commits a clear error of judgment by balancing the proper factors

unreasonably. Id. at 1189. The district court has discretion to give more weight to

one factor over another. United States v. Rosales-Bruno, 789 F.3d 1249, 1254

If the district court determines that a sentence outside the guideline range is

appropriate, it must consider the extent of the deviation and ensure that the

justification is sufficiently compelling to support the degree of the variance. United

States v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013). Even as to a substantial

variance, we will not reverse a sentence unless we are left with “the definite and

firm conviction” that the sentence is unreasonable. Id. (quotation marks omitted).

We have upheld a variance to the statutory maximum as reasonable where the

district court concluded that the variance was necessary to achieve the purposes set

out in § 3553(a). See United States v. Osorio-Moreno, 814 F.3d 1282, 1288 (11th

Cir. 2016).

In imposing a variance, the district court may consider conduct that the

probation officer already factored into the calculation of the guideline range.

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United States v. Johnson, 803 F.3d 610, 619 (11th Cir. 2015). In Johnson, the

defendant argued that the district court abused its discretion by varying upward

when his conduct reflected a “run-of-the-mill” robbery and, therefore, the relevant

factors were already captured by the Guidelines. Id. at 620. We held that the

district court was permitted to consider the offense conduct in varying upward. Id.

Even assuming that his robbery was “run of the mill,” however, we held that the

district court reasonably considered factors other than the defendant’s offense

conduct, including his criminal history and the need for deterrence. Id.

Here, Walker’s sentence is substantively reasonable. First, contrary to

Walker’s arguments, the district court was within its discretion to give greater

weight to some § 3553(a) factors—specifically, the nature and circumstances of

the crime and his criminal history—than to others. See Rosales-Bruno, 789 F.3d at

1261.

Next, the district court provided a sufficiently compelling justification for its

upward variance. See Overstreet, 713 F.3d 627, 636. Walker argues that his

conduct reflected “typical armed robbery offense behavior” as contemplated by the

Guidelines, and the district court improperly considered conduct that had already

been factored into his guideline range. But even assuming that Walker engaged in

no more than “typical armed robbery offense behavior,” district courts may

consider such conduct in imposing an upward variance. See Johnson, 803 F.3d at

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619. Moreover, the district court outlined a number of ways that the guideline

range did not account for Walker’s conduct or criminal history, and it explained

that the variance was based on Walker’s offense conduct as well as on other

factors, including his escalating criminal history, his history of firearm possession,

and the fact that he had committed the instant offense while on state parole and

federal supervised release. See Johnson, 803 F.3d at 620. Considering these

factors in totality, the district court reasonably concluded that its upward variance,

though significant, was necessary to achieve the goals of § 3553(a), including just

punishment, specific and general deterrence, promotion of respect for the law, and

the need to protect the public. See 18 U.S.C. § 3553(a); Osorio-Moreno, 814 F.3d

at 1288. Walker has not shown that the district court committed a clear error in

judgment in weighing the § 3553(a) factors, and we will not re-weigh them. See

Irey, 612 F.3d at 1190. We affirm Walker’s sentence.

AFFIRMED.