Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals For the First Circuit
No. 05-2569
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN WASHINGTON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Lynch and Howard, Circuit Judges.
James S. Hewes on brief for appellant. Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby, United States Attorney, on brief for appellee.
June 28, 2006 Per Curiam. Steven Washington, who pled guilty to
distributing heroin, in violation of 21 U.S.C. § 841(a)(1), was
sentenced, after United States v. Booker, 543 U.S. 220 (2005), to
168 months' imprisonment, the bottom of the applicable Guideline
range. The length of his sentence was based primarily on his
"career offender" status under USSG § 4B1.1(b)(C).1 In this appeal
from his sentence, Washington argues that his sentence is
unreasonably high in light of (i) the relatively small amount of
heroin involved (less than one gram) and (ii) the district court's
failure adequately to explain the sentence with respect to the
provisions of 18 U.S.C. § 3553(a), particularly the "parsimony"
provision. After carefully reviewing the record and the parties'
briefs, we conclude that the sentence is not unreasonable and was
adequately explained.
A sentencing judge is "not obliged to give a lower
sentence because of the quantity," United States v. Saez, 444 F.3d
15, 19 (1st Cir. 2006) (emphasis added), particularly where, as
here, other considerations weigh in the opposite direction, see
1 It is undisputed that Washington qualified for career offender status because he committed the instant offense when he was at least 18 years old (he was 33), the instant offense is a controlled substance offense (distribution of heroin), and he had at least two prior felony convictions of either a crime of violence or a controlled substance offense (one for a crime of violence-- robbery--and one for a controlled substance offense--manufacture, delivery, and possession of cocaine with intent to distribute). That status resulted in an offense level of 30, rather than 10; a criminal history category of VI rather than V; and a Guideline range of 168 to 210 months, rather than 21 to 27 months.
-2- generally United States v. Sagendorf, 445 F.3d 515, 518 n.2 (1st
Cir. 2006) (per curiam) (noting that "'the requirement that the
sentencing judge consider a . . . factor that may cut in a
defendant's favor does not bestow on the defendant an entitlement
to receive any particular "credit" under that factor'" (citation
omitted)). Here, the judge expressly acknowledged the severity of
the sentence in relation to the small quantity of drugs involved
and concluded that a long sentence was warranted in light of
Congress's express intent that career offenders be sentenced "to a
term of imprisonment at or near the maximum term authorized." 28
U.S.C. § 994(h). Any resulting disproportionality between the
sentence and the drug quantity "is one that results from the policy
choices made by Congress and implemented by the Sentencing
Commission." United States v. Caraballo, 447 F.3d 26, 27-28 (1st
Cir. 2006) (per curiam). The district court therefore permissibly
declined to impose a below-Guidelines sentence on that basis. Id.;
cf. United States v. Jiménez-Beltre, 440 F.3d 514, 520 (1st Cir.
2006) (en banc) (finding it permissible to sentence defendant as a
career offender even if his prior offenses were relatively minor).
The court also tempered the consequences of Washington's
career offender status by sentencing him to the bottom of the
applicable Guideline range. The resulting fourteen-year sentence,
which the court characterized as "very severe," was still more than
-3- four years below the top of the applicable Guideline range and six
years below the twenty-year statutory maximum.
In rejecting Washington's plea for a below-Guidelines
sentence, the district court also expressly considered several
factors set forth in 18 U.S.C. § 3553(a). Specifically, the court
considered and rejected Washington's argument that a below-
Guidelines sentence was necessary to avoid unwarranted disparity
with the suspended sentence given to his accomplice after a state-
court conviction arising from the same incident. The court
reasoned that, even if the accomplice was more culpable (a point on
which the parties disagreed but which the court did not resolve),
Washington's harsher sentence was warranted by his more serious
criminal history.2 The district court further opined that the
disparity to be avoided was among sentences in the federal system,
not between state and federal sentences. Without deciding the
latter point, see United States v. Wilkerson, 411 F.3d 1, 10 n.**
(1st Cir. 2005), we agree with the district court that a sentencing
disparity explained by differences in defendants' criminal
histories or degrees of cooperation is not "unwarranted" within the
meaning of 18 U.S.C. § 3553(a)(6), see Saez, 444 F.3d at 18.
The district court also expressly considered and rejected
Washington's arguments that the purposes of sentencing,
2 The record further indicates that the accomplice's sentence may have taken into account her cooperation with local law enforcement authorities.
-4- particularly the need to afford adequate deterrence and protect the
public from future crimes by this defendant, 18 U.S.C.
§ 3553(a)(2)(B),(C), could be served by a lesser sentence. In that
regard, the district court noted that despite the "very severe
sentences" that Washington received for his prior offenses, soon
after he was released from prison on those sentences he continued
to commit other serious crimes. For that reason, the court
concluded that an even more severe sentence was necessary this
time. The district court also took into account Washington's need
for educational and vocational training and substance abuse
treatment, id. § 3553(a)(2)(D), by encouraging him to "take
advantage of every program in prison" and recommending that he be
enrolled in a comprehensive drug treatment program.
Although the district court did not expressly cite the
"parsimony" provision, 18 U.S.C. § 3553(a), the above-described
comments evidence its consideration of the underlying principle
that a sentence should be sufficient but no higher than necessary
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Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals For the First Circuit
No. 05-2569
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN WASHINGTON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Lynch and Howard, Circuit Judges.
James S. Hewes on brief for appellant. Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby, United States Attorney, on brief for appellee.
June 28, 2006 Per Curiam. Steven Washington, who pled guilty to
distributing heroin, in violation of 21 U.S.C. § 841(a)(1), was
sentenced, after United States v. Booker, 543 U.S. 220 (2005), to
168 months' imprisonment, the bottom of the applicable Guideline
range. The length of his sentence was based primarily on his
"career offender" status under USSG § 4B1.1(b)(C).1 In this appeal
from his sentence, Washington argues that his sentence is
unreasonably high in light of (i) the relatively small amount of
heroin involved (less than one gram) and (ii) the district court's
failure adequately to explain the sentence with respect to the
provisions of 18 U.S.C. § 3553(a), particularly the "parsimony"
provision. After carefully reviewing the record and the parties'
briefs, we conclude that the sentence is not unreasonable and was
adequately explained.
A sentencing judge is "not obliged to give a lower
sentence because of the quantity," United States v. Saez, 444 F.3d
15, 19 (1st Cir. 2006) (emphasis added), particularly where, as
here, other considerations weigh in the opposite direction, see
1 It is undisputed that Washington qualified for career offender status because he committed the instant offense when he was at least 18 years old (he was 33), the instant offense is a controlled substance offense (distribution of heroin), and he had at least two prior felony convictions of either a crime of violence or a controlled substance offense (one for a crime of violence-- robbery--and one for a controlled substance offense--manufacture, delivery, and possession of cocaine with intent to distribute). That status resulted in an offense level of 30, rather than 10; a criminal history category of VI rather than V; and a Guideline range of 168 to 210 months, rather than 21 to 27 months.
-2- generally United States v. Sagendorf, 445 F.3d 515, 518 n.2 (1st
Cir. 2006) (per curiam) (noting that "'the requirement that the
sentencing judge consider a . . . factor that may cut in a
defendant's favor does not bestow on the defendant an entitlement
to receive any particular "credit" under that factor'" (citation
omitted)). Here, the judge expressly acknowledged the severity of
the sentence in relation to the small quantity of drugs involved
and concluded that a long sentence was warranted in light of
Congress's express intent that career offenders be sentenced "to a
term of imprisonment at or near the maximum term authorized." 28
U.S.C. § 994(h). Any resulting disproportionality between the
sentence and the drug quantity "is one that results from the policy
choices made by Congress and implemented by the Sentencing
Commission." United States v. Caraballo, 447 F.3d 26, 27-28 (1st
Cir. 2006) (per curiam). The district court therefore permissibly
declined to impose a below-Guidelines sentence on that basis. Id.;
cf. United States v. Jiménez-Beltre, 440 F.3d 514, 520 (1st Cir.
2006) (en banc) (finding it permissible to sentence defendant as a
career offender even if his prior offenses were relatively minor).
The court also tempered the consequences of Washington's
career offender status by sentencing him to the bottom of the
applicable Guideline range. The resulting fourteen-year sentence,
which the court characterized as "very severe," was still more than
-3- four years below the top of the applicable Guideline range and six
years below the twenty-year statutory maximum.
In rejecting Washington's plea for a below-Guidelines
sentence, the district court also expressly considered several
factors set forth in 18 U.S.C. § 3553(a). Specifically, the court
considered and rejected Washington's argument that a below-
Guidelines sentence was necessary to avoid unwarranted disparity
with the suspended sentence given to his accomplice after a state-
court conviction arising from the same incident. The court
reasoned that, even if the accomplice was more culpable (a point on
which the parties disagreed but which the court did not resolve),
Washington's harsher sentence was warranted by his more serious
criminal history.2 The district court further opined that the
disparity to be avoided was among sentences in the federal system,
not between state and federal sentences. Without deciding the
latter point, see United States v. Wilkerson, 411 F.3d 1, 10 n.**
(1st Cir. 2005), we agree with the district court that a sentencing
disparity explained by differences in defendants' criminal
histories or degrees of cooperation is not "unwarranted" within the
meaning of 18 U.S.C. § 3553(a)(6), see Saez, 444 F.3d at 18.
The district court also expressly considered and rejected
Washington's arguments that the purposes of sentencing,
2 The record further indicates that the accomplice's sentence may have taken into account her cooperation with local law enforcement authorities.
-4- particularly the need to afford adequate deterrence and protect the
public from future crimes by this defendant, 18 U.S.C.
§ 3553(a)(2)(B),(C), could be served by a lesser sentence. In that
regard, the district court noted that despite the "very severe
sentences" that Washington received for his prior offenses, soon
after he was released from prison on those sentences he continued
to commit other serious crimes. For that reason, the court
concluded that an even more severe sentence was necessary this
time. The district court also took into account Washington's need
for educational and vocational training and substance abuse
treatment, id. § 3553(a)(2)(D), by encouraging him to "take
advantage of every program in prison" and recommending that he be
enrolled in a comprehensive drug treatment program.
Although the district court did not expressly cite the
"parsimony" provision, 18 U.S.C. § 3553(a), the above-described
comments evidence its consideration of the underlying principle
that a sentence should be sufficient but no higher than necessary
to meet the statutory goals. Nor is there any indication that the
sentence was designed to serve some other, impermissible, purpose.
See United States v. Scherrer, 444 F.3d 91, 95 (1st Cir. 2006) (en
banc). Accordingly, we find no error in the court's failure to
incant the parsimony provision per se. See United States v. Dixon,
No. 05-1559, 2006 WL 1452687, at *9 (1st Cir. May 26, 2006).
-5- Similarly, although the court did not expressly address
other potentially mitigating factors proffered by Washington at
sentencing--including his troubled childhood and his efforts at
post-conviction rehabilitation while in prison--we infer that the
court was unpersuaded that those factors outweighed the stated
grounds for declining to impose a below-Guidelines sentence. See
Scherrer, 444 F.3d at 94. No further explanation was required.
Cf. United States v. Smith, 445 F.3d 1, 4 (1st Cir. 2006) (stating
that "'the farther the judge's sentence departs from the guidelines
sentence . . . the more compelling the justification . . . the
judge must offer'" (citation omitted)).
Accordingly, the sentence is affirmed.
-6-