United States v. Washington

• Court: Court of Appeals for the First Circuit
• Decided: March 27, 2007
• Docket: 06-1970
• Status: Published

Opinion

Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 06-1970

UNITED STATES OF AMERICA,

Appellee,

v.

GEORGE WASHINGTON A/K/A ANTHONY LONG,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge, Selya, Senior Circuit Judge, and Lynch, Circuit Judge.

Michael B. Whipple and Thomas F. Hallett Law Offices on brief for appellant. Paula D. Silsby, United States Attorney, and F. Mark Terison, Senior Litigation Counsel, on brief for appellee.

March 27, 2007 Per Curiam. In United States v. Washington, 434 F.3d 7

(1st Cir. 2006), we affirmed the conviction of defendant-appellant

George Washington a/k/a Anthony Long on various drug-trafficking

charges. See id. at 17. We vacated his sentence, however, and

remanded the case for resentencing in light of United States v.

Booker, 543 U.S. 220 (2005). See Washington, 434 F.3d at 17. On

remand, the district court, operating under an advisory guidelines

regime, again sentenced the defendant to a 360-month incarcerative

term. This timely appeal ensued.

The relevant facts are set out in our earlier opinion,

see id. at 9-11, and it is unnecessary to rehearse them here. At

present, the defendant asserts four principal claims of error.

None of them requires extended comment.

The defendant's first claim of error relates to the

district court's application of the career offender guideline. See

USSG §4B1.1. The gist of his claim is that the prior convictions

upon which his career offender designation was based should have

been charged in the indictment and their existence proven to the

jury beyond a reasonable doubt. Instead, the district court,

applying a preponderance of the evidence standard, determined the

existence of those convictions at the disposition hearing. The

defendant asserts that this procedure abridged his Sixth Amendment

rights.

-2- This claim of error is foreclosed by Supreme Court

precedent. See Almendarez-Torres v. United States, 523 U.S. 224,

226-27 (1998). We repeatedly have rejected the argument that we

should treat this precedent as impliedly overruled. See, e.g.,

United States v. Miller, ___ F.3d ___, ___ (1st Cir. 2007) [No. 05-

2763, slip op. at 4]; United States v. Bennett, 469 F.3d 46, 51

(1st Cir. 2006); United States v. Coplin, 463 F.3d 96, 104-05 (1st

Cir. 2006); United States v. Richards, 456 F.3d 260, 262 (1st Cir.

2006); United States v. Jiménez-Beltre, 440 F.3d 514, 520 (1st Cir.

2006) (en banc), cert. denied, 127 S. Ct. 928 (2007). Because we

are bound to follow these decisions and to honor the holding of

Almendarez-Torres unless and until the Supreme Court overrules that

holding, we reject the defendant's first claim of error.

Next, the defendant contends that the district court

erred in giving "presumptive weight" to the federal sentencing

guidelines. This contention is not supported by the record. The

district court made it perfectly clear at the disposition hearing

that it did not "place any presumption on the guideline range."

Relatedly, the defendant claims that the district court

at least gave the guidelines substantial weight in the sentencing

calculus and that, in so doing, the court erred. It is true that

the district court gave the guidelines substantial weight but, in

following that course, the court acted altogether appropriately.

-3- See Jiménez-Beltre, 440 F.3d at 518-19. Consequently, this claim

of error also fails.

Third, the defendant asseverates that certain of the

prior crimes that served as predicates for the career offender

designation were part of a unitary course of conduct and, thus,

should not have been counted separately. This asseveration lacks

force; the issue could have been, but was not, raised in the

defendant's initial appeal and, therefore, is almost certainly by

the boards. See United States v. Bell, 988 F.2d 247, 250 (1st Cir.

1993).

In all events, the convictions that the defendant cites

were for offenses that occurred eleven days apart and have no

readily discernible connection. Under the sentencing guidelines,

"[p]rior sentences imposed in unrelated cases are to be counted

separately." USSG §4A1.2(a)(2). Multiple sentences are considered

"related" only if those sentences "resulted from offenses that (1)

occurred on the same occasion, (2) were part of a single common

scheme or plan, or (3) were consolidated for trial or sentencing."

Id. § 4A1.2, cmt. n.3. The subject offenses do not fit into any of

these categories. Accordingly, the defendant's claim founders.

See, e.g., United States v. Correa, 114 F.3d 314, 317 (1st Cir.

1997); United States v. Elwell, 984 F.2d 1289, 1295 (1st Cir.

-4- Finally, the defendant makes a somewhat circuitous attack

on the reasonableness of his sentence, arguing among other things

(i) that a 360-month period of immurement is "grossly

disproportional" when compared with certain of his codefendants'

sentences and (ii) that the sentence is too stiff because the trial

judge incorrectly gauged his "personal characteristics." These

arguments are futile.

The codefendants to whom Washington alludes were, by

reason of cooperation, criminal history, and other differentiating

factors, not similarly situated. Therefore, the defendant's 360-

month sentence cannot be said to have created an unwarranted

sentencing disparity. See United States v. Saez, 444 F.3d 15, 18

(1st Cir. 2006) (holding that a sentencing disparity explained by

material differences in various defendants' criminal histories or

degrees of cooperation is not "unwarranted" within the meaning of

18 U.S.C. § 3553(a)(6)).

As to personal characteristics, the defendant points to

such things as his impoverished childhood, the abuse that he

suffered, and his addiction to drugs. These and other personal

characteristics appear to have been duly considered by the district

court. Given the scope of the correctly calculated guideline

sentencing range,1 the defendant's prolific criminal history, his

1 We note that, in this instance, the defendant's guideline range was driven primarily by his prior criminal record and status as a career offender. Giving significant weight to a defendant's

-5- lack of remorse, and the district court's express finding that

recidivism was "highly predictable" in this case, we cannot say

that the within-the-range sentence imposed is unreasonable. See

Jiménez-Beltre, 440 F.3d at 519 (stating that, ordinarily, the

reasonableness requirement is satisfied when the court offers a

"plausible explanation" for the chosen sentence and reaches a

"defensible overall result").

Saying more would serve no useful purpose. To the extent

that the defendant has proffered other arguments, they are

insufficiently developed, patently meritless, or both. Thus, we

need go no further.

Affirmed.

extensive criminal history is entirely appropriate. See United States v. LaBonte, 520 U.S. 751, 753 (1997) (explaining that the career offender guideline implements a specific congressional mandate) (citing 28 U.S.C. § 994(h)); see also United States v. Pelletier, 469 F.3d 194, 203-04 (1st Cir. 2006).

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