United States v. Rasheed Chevor Wint

264 F. App'x 819
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 7, 2008
Docket07-13240
StatusUnpublished

This text of 264 F. App'x 819 (United States v. Rasheed Chevor Wint) 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. Rasheed Chevor Wint, 264 F. App'x 819 (11th Cir. 2008).

Opinion

PER CURIAM:

Rasheed Chevor Wint appeals his 46-month sentence for illegal re-entry after deportation. On appeal, Wint first argues that the district court’s application of U.S.S.G. § 2L1.2 was unreasonable because (1) the 16-level enhancement resulted in the same offense level, 24, that is applied to offenses that are far more serious than illegal re-entry, including, inter alia, aggravated assault resulting in serious bodily injury, sexual abuse of a minor, stalking involving bodily injury, and arson, and was therefore unreasonably severe, and (2) § 2L1.2 double counted his criminal history. The district court’s adherence to the guideline range was thus unreasonable, Wint argues, because § 2L1.2’s “over-reliance” on his criminal history was contrary to the sentencing goals set forth in 18 U.S.C. § 3553(a).

After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentencing is a two step process requiring the district court first to “consult the Guidelines and correctly calculate the range provided by the Guidelines,” and then to determine a reasonable sentence after considering the 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005). We review the district court’s interpretation and application of the guidelines de novo, and the final sentence imposed for reasonableness. United States v. Campbell, 491 F.3d 1306, 1313, 1315 (11th Cir.2007) (internal quotations and citation omitted).

A. Whether the 16-level enhancement was unreasonably severe

As an initial matter, because we review only a defendant’s final sentence, and not the guidelines themselves, for reasonableness in light of the § 3553(a) factors, § 2L1.2 is not subject to reasonableness review. See United States v. Dorman, 488 F.3d 936, 938 (11th Cir.), cert. denied, — U.S. -, 128 S.Ct. 427, 169 L.Ed.2d 299 (2007); see Booker, 543 U.S. at 264, 125 S.Ct. at 767. Insofar as Wint challenges the district court’s application of § 2L1.2(b)(1)(A), his argument that the district court erred in adhering to the guidelines because § 2L1.2 is “inherently unreasonable” is also unavailing, since defining and fixing penalties for federal crimes are Congressional, not judicial, functions. United States v. Evans, *821 338 U.S. 483, 486, 68 S.Ct. 634, 636, 92 L.Ed. 823 (1948); see Mistretta v. United States, 488 U.S. 361, 377-78, 109 S.Ct. 647, 658, 102 L.Ed.2d 714 (1989) (noting that Congress has given the Sentencing Commission the discretion to determine the relative severity of federal crimes, assess the relative weight of the offender characteristics, and decide which types of crimes are to be considered similar for the purposes of sentencing). Accordingly, we have held that “regardless of the circumstances, a sentencing court lacks the authority to treat a crime of violence as if it were not, in fact, a crime of violence.” United States v. Saucedo-Patino, 358 F.3d 790, 794 (11th Cir.2004).

Therefore, the district court was not, as Wint suggests, free to disregard the sentencing guidelines because they imposed a high offense level for illegal re-entry, nor to treat Wint’s armed robbery conviction as anything other than a “crime of violence” because it occurred 10 years ago.

B. Whether the district court’s application of § 2L1.2 constituted impermissible double-counting of Wint’s criminal history

“We review de novo a claim of double counting.” United States v. Dudley, 463 F.3d 1221, 1226 (11th Cir.2006). “Impermissible double counting occurs only when one part of the Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines.” Id. at 1226-27 (internal quotations and citation omitted). We have held that counting pri- or felonies against defendants under both the criminal history section and § 2L1.2 is permissible because “each section concerns conceptually separate notions relating to sentencing,” namely, punishing likely recidivists more severely and deterring aliens who have been convicted of a felony from re-entering the United States, respectively. United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir.1992) (internal quotations and citation omitted).

Because application of § 2L1.2(b)(l)(A) does not constitute impermissible double counting, the district court did not err in counting Wint’s prior conviction for armed robbery against him both under the criminal history section and § 2L1.2(b)(l)(A), and its adherence to the guidelines in enhancing Wint’s sentence under § 2L1.2 was not unreasonable.

Wint next argues that his sentence was unreasonable because it was greater than necessary to achieve the goals of sentencing set forth in § 3553(a). Specifically, he asserts that the district court treated the sentencing guideline range as presumptively reasonable, placed undue weight on his criminal history, and failed to consider mitigating factors, including his lack of convictions since 1996, and the fact that this was his first time returning to the United States and had no family or friends in Jamaica. Wint contends additionally that his sentence resulted in a sentencing disparity because the Southern District of Florida does not have a fast-track program, and that this disparity should not be condoned under § 3553(a), which directs a sentencing court to consider unwarranted sentencing disparities among defendants having been found guilty of similar conduct.

We review a final sentence imposed by a district court for reasonableness. United States v. Agbai, 497 F.3d 1226, 1229 (11th Cir.2007). A sentence may be proeedurally or substantively unreasonable. United States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir.2006). A sentence may be procedurally unreasonable if it is the “product of a procedure that does not follow Booker's requirements ... [and] a sentence may be *822 substantively unreasonable, regardless of the procedure used.” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Jose Saucedo-Patino
358 F.3d 790 (Eleventh Circuit, 2004)
United States v. John Kevin Talley
431 F.3d 784 (Eleventh Circuit, 2005)
United States v. Marcus Raqual Williams
435 F.3d 1350 (Eleventh Circuit, 2006)
United States v. Lesmarge Valnor
451 F.3d 744 (Eleventh Circuit, 2006)
United States v. Jermaine Hunt
459 F.3d 1180 (Eleventh Circuit, 2006)
United States v. Tracey Dudley
463 F.3d 1221 (Eleventh Circuit, 2006)
United States v. Damon Amedeo
487 F.3d 823 (Eleventh Circuit, 2007)
United States v. Juan Llanos-Agostadero
486 F.3d 1194 (Eleventh Circuit, 2007)
United States v. William Herman Dorman
488 F.3d 936 (Eleventh Circuit, 2007)
United States v. William C. Campbell
491 F.3d 1306 (Eleventh Circuit, 2007)
United States v. Agbai
497 F.3d 1226 (Eleventh Circuit, 2007)
United States v. Evans
333 U.S. 483 (Supreme Court, 1948)
Mistretta v. United States
488 U.S. 361 (Supreme Court, 1989)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
United States v. Paul Godwin Adeleke
968 F.2d 1159 (Eleventh Circuit, 1992)
Welshans v. Aetna Life Insurance Company
128 S. Ct. 671 (Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
264 F. App'x 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rasheed-chevor-wint-ca11-2008.