United States v. Lee Dougherty

632 F. App'x 993
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 1, 2015
Docket15-11357
StatusUnpublished
Cited by1 cases

This text of 632 F. App'x 993 (United States v. Lee Dougherty) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lee Dougherty, 632 F. App'x 993 (11th Cir. 2015).

Opinion

PER'CURIAM:

Lee Grace Dougherty appeals the procedural and substantive reasonableness of her above-guidelines total sentence of 360 months. The sentence was imposed after Dougherty pleaded guilty to armed bank robbery and to discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 2113(a), (b) and 18 U.S.C. § 924(c)(1)(A)(iii). 1 Dougherty’s sentence varied 183 months above the top end of the advisory guidelines range of 166 to 177 months. No reversible error has been shown; we affirm.

Briefly stated, Dougherty and her two brothers, by a show of force, robbed a bank in Georgia. 2 Each sibling carried a gun during the robbery (including an AK-47); upon entering the bank, Dougherty and one brother each actually fired a shot into the ceiling. Several days after the robbery, the siblings were located in Colorado, where they engaged in a high-speed car chase. During the chase, multiple shots were fired at pursuing officers.

We review Dougherty’s final sentence for procedural and substantive reasonableness. See United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir.2008). A sentence may be procedurally unsound if the district court calculates incorrectly the guidelines range, treats the guidelines as mandatory, fails to consider the 18 U.S.C. § 3553(a) factors, chooses a sentence based on clearly erroneous facts, or fails to explain adequately the chosen sentence. Id,

After determining a sentence is procedurally sound, we evaluate the substantive reasonableness of a sentence — whether one inside or outside the guidelines range — under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). In reviewing the substantive reasonableness of a sentence, we examine “the totality of the circumstances, *995 including ... whether the statutory factors in § 3553(a) support the sentence in question.” Gonzalez, 550 F.3d at 1324.

When a sentence is above the guidelines range, we “may consider the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.2008) (quotation omitted). “We may vacate a sentence because of the variance 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 arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.2009) (quotation omitted). “[T]hat we might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.” Id. (quotation omitted).

Dougherty bears the burden of establishing that her sentence is unreasonable in the light of both the record and the section 3553(a) factors. See United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005).

Dougherty first contends that the district court applied incorrectly a two-level enhancement for reckless endangerment, pursuant to U.S.S.G. § 3C1.2. We rejected this argument in our initial decision in this case, concluding expressly that application of the reckless-endangerment enhancement to Dougherty’s sentence was proper. See Dougherty, 754 F.3d at 1360. Under the law-of-the-case doctrine, we are bound by the findings of fact and by the conclusions of law made in an earlier appeal in the same case. United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996). Because none of the doctrine’s three exceptions apply in this instance, our initial decision on this issue is binding; and we are precluded from reviewing Dougherty’s argument in this appeal. See id.

Dougherty has failed to demonstrate that her sentence is procedurally unreasonable. The district court calculated properly the guidelines range and treated the guidelines as advisory. In determining Dougherty’s sentence, the district court said expressly that it had considered the section 3553(a) factors. See United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.2007) (a district court’s acknowledgment that it considered the section 3553(a) factors suffices to demonstrate that it did so). The district court also explained that an above-guidelines sentence was necessary — particularly in the light of the nature and circumstances of Dougherty’s offenses, Dougherty’s history and characteristics, the need to reflect the seriousness of the offenses, to promote respect for the law, to provide just punishment, to afford deterrence, and to protect the public. That the district court did not discuss individually each section 3553(a) factor does not render the sentence unreasonable. See id. (the district court is not required ’ to discuss each of the section 3553(a) factors on the record).

In explaining why an upward variance was warranted in this case, the district court also noted that it had considered the death threats made to bank customers and employees, the number and kinds of guns used during the robbery, the number of shots fired during the robbery, and the substantial risk to the officers and to the public resulting from Dougherty’s attempt to flee police in Colorado.

On this record, we cannot say that the district court failed to explain sufficiently its reasons for sentencing Dougherty above the advisory guidelines range. Nor can we say that the district court relied on *996 clearly erroneous facts. Instead, the district court relied upon unobjected-to facts contained in the Presentence Investigation Report (“PSI”). See United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.2006) (“failure to object to allegations of fact in a PSI admits those facts for sentencing purposes”).

Dougherty has also failed to demonstrate that her above-guidelines sentence substantively was unreasonable. Dougherty’s total sentence is below the total statutory maximum sentence of life imprisonment. See United States v. Valnor, 451 F.3d 744

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Bluebook (online)
632 F. App'x 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lee-dougherty-ca11-2015.