USA v. Robert Lashley

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10471
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DEWAYNE LASHLEY,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:22-cr-00027-JA-PRL-1
____________________
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2 Opinion of the Court 23-10471
Before WILLIAM PRYOR , Chief Judge, and NEWSOM and ANDERSON,
Circuit Judges.
PER CURIAM:
Robert Lashley appeals his sentence of 36 months of impris-
onment imposed after he pleaded guilty to committing a hate
crime. 18 U.S.C. § 249(a)(1). Lashley argues that his sentence is sub-
stantively unreasonable. We affirm.
Lashley agreed to plead guilty to violating the Hate Crimes
Prevention Act, id., by “willfully caus[ing] injury to D.B., a Black
man, because of D.B.’s actual and perceived race” by “repeatedly
call[ing] D.B. racial slurs and repeatedly str[iking] D.B. with closed
fists.” Lashley admitted in his factual proffer that on November 17,
2021, he and his brother, Roy, went to a store in Citrus Springs,
Florida. Lashley entered the store first, and Roy entered as D.B.
left. Roy then asked Lashley if he saw “that big Black n****r?” At
the cash register, Roy asked the clerk if she saw D.B. push him as
he walked through the door, and the clerk said, “No.” Roy said that
D.B. pushed him and that “that n****r needs to be taught a lesson.”
The surveillance video confirmed that D.B. did not push or contact
Roy. After the store clerk and manager admonished Lashley and
Roy for using racial slurs in the store, the brothers left, and Roy
told Lashley that they were “going to go get that n****r.”
Lashley and Roy followed D.B. into the parking lot. Lashley
ran to D.B. and “struck him numerous times with his fists.” Roy
retrieved an axe handle from his truck and struck D.B. multiple
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23-10471 Opinion of the Court 3
times with it. D.B. raised his arms to block the attacks and punched
back in self-defense. Before, during, and after the attack, Lashley
and Roy directed racial slurs at D.B. At some point during the at-
tack, Roy drove away from the scene, but Lashley stayed. When
Roy returned on foot, they continued attacking D.B. with their
fists. Police officers arrested Lashley and Roy at the scene. D.B.,
who had sustained injuries to his face and legs and a laceration to
the inside of his mouth, was taken to the hospital.
Lashley’s presentence investigation report provided a base
offense level of 12, United States Sentencing Guidelines Manual
§ 2H1.1(a)(2) (Nov. 2021), added three levels because he selected a
victim based on their actual and perceived race, id. § 3A1.1(a), and
subtracted two levels for his acceptance of responsibility, id.
§ 3E1.1(a). Based on a total offense level of 13 and a criminal history
category of I, the report provided an advisory sentencing range of
12 to 18 months of imprisonment. Lashley requested a sentence of
one year and one day of imprisonment. The government requested
a sentence of 18 months of imprisonment.
At sentencing, the district court confirmed that although the
government initially indicted Lashley for aiding and abetting a hate
crime using a dangerous weapon and attempting to cause bodily
injury, 18 U.S.C. §§ 249(a)(1), 2, the superseding indictment omit-
ted the dangerous-weapon and aiding-and-abetting language as
part of Lashley’s plea agreement. The government stated that the
district court still could hold Lashley accountable for Roy’s use of
the axe handle in determining a reasonable sentence.
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4 Opinion of the Court 23-10471
Lashley argued that it was unforeseeable to him that Roy
would retrieve a weapon and that there was insufficient evidence
that he knew Roy was using the axe handle during the fight. The
district court stated that it disbelieved that someone involved in a
three-person fray could be unaware that another person was hold-
ing a red axe handle. Lashley argued that deterrence should not be
a significant factor because the incident was an unplanned, random
act of violence that his brother instigated. He also argued that alt-
hough race was a motivating factor, he was provoked by Roy’s
false accusation that D.B. had assaulted him. Lashley allocuted and
apologized to D.B. The district court clarified that although Roy
provoked the altercation, Lashley physically confronted D.B. and
continued the attack after Roy left. The government argued that
regardless of Roy’s role in provoking the encounter, Lashley still
took an active role in the brazen and prolonged attack in daylight,
in a store parking lot, and in the presence of nearly a dozen wit-
nesses while he used racial slurs. The government agreed with the
district court that it was unreasonable that Lashley would not have
seen his brother with an axe handle during the fight.
The district court found that the Guidelines were insuffi-
cient to address the serious nature of the offense and recognized
that this was a rare occasion in which it disagreed with both parties’
sentencing recommendations. In weighing the statutory sentenc-
ing factors, 18 U.S.C. § 3553(a), the district court stated that it con-
sidered that Lashley had only one prior felony and three misde-
meanor convictions and overcame a substance abuse problem. It
considered that he consistently worked and had a stable
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23-10471 Opinion of the Court 5
relationship and a family who supported him. It found that Lashley
was devoted to Roy, who was the dominant sibling and often took
advantage of Lashley, such that Lashley was a potential danger to
the public when he was with Roy. As for the circumstances of the
offense, the district court found it unimaginable that Lashley did
not know that Roy was hitting D.B. with an axe handle. The district
court also discussed the brazen nature of the attack and stated that
it had considered several possible explanations for the attack—that
the brothers thought that no one would care if they beat D.B. be-
cause of his race; that they thought they were entitled under the
law to beat D.B. because of his race; or that they were consumed
with uncontrollable rage—but none weighed in his favor.
The district court sentenced Lashley to 36 months of impris-
onment. Lashley objected that his sentence was procedurally and
substantively unreasonable, and he objected to the finding that he
was aware that Roy was using a dangerous weapon during their
attack. The district court clarified that it would have imposed the
same sentence regardless of the dangerous-weapon finding, based
on its consideration of the statutory sentencing factors.
We review the reasonableness of a sentence, including a sen-
tence above the advisory guideline range, for abuse of discretion.
United States v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013). The
district court “imposes a substantively unreasonable sentence only
when it (1) fails to afford consideration to 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 in
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6 Opinion of the Court 23-10471
considering the proper factors.” United States v. Taylor, 997 F.3d
1348, 1355 (11th Cir. 2021). We will disturb “the sentence if, but
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. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal
quotation marks omitted).
The district court did not abuse its discretion when it varied
upward to address the seriousness of Lashley’s hate crime against
D.B. The district court enjoys discretion to impose a sentence out-
side the advisory guideline range when its justification is suffi-
ciently compelling to support the degree of its variance. Id. at 1196.
The district court explained in detail why the facts were sufficiently
compelling to support the upward variance. It considered several
mitigating factors, including Lashley’s relatively insignificant crim-
inal history, supportive family, and the power dynamics between
him and Roy. But the district court also considered that Lashley,
who took an active role in initiating and continuing the physical
encounter even after Roy temporarily left the scene, attacked D.B.
“in a parking lot in broad daylight in the presence of witnesses, one
of which was recording the attack” and that Lashley, undeterred,
continued beating D.B. while using racial slurs. The district court
expressed that these circumstances were so “hard to imagine” that
it could not “figure out how” the vicious attack persisted.
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23-10471 Opinion of the Court 7
Lashley disagrees with how the district court weighed Roy’s
use of the axe handle to hit D.B. during the attack, but Lashley fails
to establish that the district court clearly erred in disbelieving that
he was unaware that Roy was using a weapon to hit D.B. And we
disagree that Lashley could be entitled to relief based on an unwar-
ranted sentencing disparity after Roy, whose advisory guideline
range accounted for his use of the weapon to inflict bodily injury
and his more extensive criminal history, received a nine-month up-
ward variance to a sentence of 60 months of imprisonment. See
United States v. Cavallo, 790 F.3d 1202, 1237 (11th Cir. 2015). The
district court reasonably determined that varying upward 18
months above Lashley’s advisory guideline range to impose a sen-
tence far below the statutory maximum of ten years was necessary
to address the seriousness of his crime. See United States v. Stanley,
739 F.3d 633, 656 (11th Cir. 2014).
We AFFIRM Lashley’s conviction and sentence.
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