USA v. Dylan Stanley

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11396
Non-Argument Calendar
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D.C. Docket No. 7:11-cr-00057-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DYLAN STANLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(February 29, 2016)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
Defendant Dylan Stanley appeals his total sentence of 360 months’
imprisonment imposed after he pled guilty to armed bank robbery and discharging
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a firearm during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 2113(a), (d) and 18 U.S.C. § 924(c)(1)(A)(iii). This is the second time we have
had occasion to review Defendant’s sentence. In the first appeal, we vacated
Defendant’s original sentence of 428 months’ imprisonment after concluding that
the district court erred by enhancing his sentence under U.S.S.G. § 3A1.2. On
remand, the district court sentenced Defendant to 360 months’ imprisonment,
which reflects a 183-month upward variance from the top of Defendant’s advisory
guideline range of 166 to 177 months’ imprisonment. Defendant now challenges
the procedural and substantive reasonableness of that sentence. After careful
review, we affirm.
I. BACKGROUND
In August 2011, Defendant and his two siblings, Lee and Ryan Dougherty,
“embarked on a violent, eight-day, multi-state crime spree” that spanned from
Florida to Colorado. United States v. Dougherty, 754 F.3d 1353, 1356 (11th Cir.
2014) (“Dougherty I”). Shortly after Defendant and his siblings loaded up a car
with ammunition and firearms, a Florida police officer initiated a traffic stop of
their vehicle. Id. Defendant shot at the officer with a pistol and an assault rifle,
which disabled the police car and enabled Defendant and his siblings to flee the
scene. Id.
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Defendant and his siblings then robbed the CetrusBank in Valdosta,
Georgia. Id. Having disguised their faces with masks and sunglasses, each of
them carried a firearm, one of which was an AK-47 type rifle. Id. During the
robbery, Defendant and his sister each fired a shot into the ceiling “[f]or no reason
other than to terrorize the victims.” Id.
Approximately one week later, Defendant and his siblings were spotted in
Colorado. Id. at 1356–57. After they fled, a high-speed chase ensued with
Defendant’s brother at the wheel while Defendant fired multiple shots at pursuing
officers. Id. at 1357. The chase ended only when their vehicle crashed. Id.
Defendant was then arrested, and officers recovered cash, ammunition, numerous
firearms, and loaded magazines from the automobile. Id.
A federal grand jury subsequently issued an indictment against Defendant,
charging him with armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d),
and discharging a firearm during and in relation to a crime of violence, in violation
18 U.S.C. § 924(c)(1)(A). Defendant later pleaded guilty to both counts pursuant
to a plea agreement.
After Defendant pled guilty, the district court initially imposed a total
sentence of 428 months’ imprisonment. In determining Defendant’s guideline
range, the district court included a six-level enhancement under U.S.S.G.
§ 3A1.2(c)(1), for assaulting a law enforcement officer and creating a substantial
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risk of death or serious bodily harm during immediate flight. The district court
also applied a two-level enhancement pursuant to U.S.S.G. § 3C1.2, for obstruction
of justice by creating a substantial risk to another person in the course of fleeing
from law enforcement.
Defendant appealed, and we determined that the district court properly
applied the two-level enhancement under § 3C1.2, stating that Defendant
“personally engaged in conduct that recklessly created a substantial risk of death or
serious bodily injury to another person in the course of fleeing from a law
enforcement officer” by firing shots at the officers during the high-speed chase. Id.
at 1359–60. However, we concluded that the district court erred by applying the
six-level enhancement under § 3A1.2(c)(1). Id. at 1359. As a result, we vacated
Defendant’s sentence and remanded to the district court for resentencing. Id. at
1364.
At the resentencing hearing, Defendant once again objected to the two-level
enhancement under § 3C1.2 on the basis that the presentence investigation report
(“PSR”) incorrectly stated that he participated in his brother’s reckless driving
during the high-speed chase. Defendant also objected to the factual statement in
the PSR, which stated that he threatened the bank employees. After overruling
both objections, the district court calculated a guideline range of 46 to 57 months’
imprisonment for Count One based on a total offense level of 23 and a criminal
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history category of I.1 The guideline range for Count Two was a consecutive, 120
months’ imprisonment. Thus, the resulting guideline range was 166 to 177
months’ imprisonment. Ultimately, the district court sentenced Defendant to a
total of 360 months’ imprisonment: 240 months as to Count One and 120 months
as to Count Two, to be served consecutively.
II. DISCUSSION
A. General Principles
Using a two-step process, we review the reasonableness of a district court’s
sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th
Cir. 2014), cert. denied, 135 S. Ct. 764 (2014). We first look to whether the
district court committed any significant procedural error, such as miscalculating
the advisory guideline range, treating the Sentencing Guidelines as mandatory,
failing to consider the 18 U.S.C. § 3553(a) factors,2 selecting a sentence based on
1 With respect to Count One, the PSR had calculated a guideline range of 57 to 71 months’
imprisonment based on a total offense level of 23 and a criminal history category of III.
Defendant was initially assigned a criminal history category of III due to four criminal history
points—three of which stemmed from a 2011 first-degree felony assault conviction in Colorado.
Defendant objected, and argued that he should not receive any points for that conviction because
it was relevant conduct to the present criminal offense. The district court sustained the objection,
which resulted in a criminal history category of I.
2 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
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clearly erroneous facts, or failing to adequately explain the chosen sentence. Id.
Then, we examine whether the sentence is substantively reasonable in light of the
totality of the circumstances. Id. The party challenging the sentence bears the
burden of showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179,
1189 (11th Cir. 2008).
B. Procedural Reasonableness
Defendant argues that his above-guidelines sentence is procedurally
unreasonable for several reasons.3 In particular, he asserts that the district court
based the sentence on clearly erroneous facts, did not adequately explain the
chosen sentence, and did not meaningfully consider the 18 U.S.C. § 3553(a)
factors.
1. The district court did not rely on clearly erroneous facts
Defendant argues that the district court procedurally erred by imposing an
upward variance based on clearly erroneous facts. Arguing that the Government
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
3 Defendant attempts to adopt an argument from the brief of his codefendant filed in a separate
appeal, which challenged the district court’s imposition of a two-level enhancement under
U.S.S.G. § 3C1.2 for reckless endangerment during flight. To the extent we consider Defendant
to have properly adopted this argument, it is without merit. Because we specifically decided that
the record supported the § 3C1.2 enhancement in our previous decision, Dougherty I, 754 F.3d at
1359–60, the law-of-the-case doctrine precludes our review of this issue for a second time in the
present appeal, United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005) (“The law of the
case doctrine bars relitigation of issues that were decided, either explicitly or by necessary
implication, in an earlier appeal of the same case.”).
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did not provide any evidence establishing that Defendant threatened the bank
occupants or Defendant participated in his brother’s reckless driving during the
high-speed chase, Defendant challenges the district court’s reliance on those facts
in imposing sentence.
Before the district court, Defendant took issue with two factual statements in
the PSR: (1) when Defendant and his siblings entered the bank, “they shouted
threats to bank employees and told them to get on the floor or they would be
killed” and (2) during the high-speed chase, “[t]hey drove erratically.” Defendant
denied that he personally made any threats to the bank employees and also denied
that he participated in his brother’s reckless driving during the chase. The district
court overruled both objections.
We review factual findings made by the district court for clear error. United
States v. Williams, 340 F.3d 1231, 1234–35 (11th Cir. 2003). The district court’s
factual findings are clearly erroneous when, after reviewing all of the evidence, we
are “left with the definite and firm conviction that a mistake has been committed.”
United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013).
After reviewing the record, we are not persuaded that the district court relied
on clearly erroneous facts. In imposing Defendant’s sentence, the district court did
not rely on the fact that Defendant personally made threats to the bank occupants,
but instead relied on “the threats of death made to the bank occupants.” In fact,
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Defendant has admitted the accuracy of this latter fact. At his plea colloquy, he
admitted that after he and his siblings entered the bank, “threats were shouted at
the employees who were in the bank and they were ordered to get down,” although
Defendant denied that he personally made any threats. He further admitted that he
and his sister “also brandished the weapons, threatening the bank employees,
throughout the time that they were in the bank.” Moreover, the undisputed facts in
the PSR showed that Defendant and his siblings disguised their faces as they
entered the bank, all three were armed with firearms, including an AK-47 type
rifle, and Defendant and his sister each fired one shot into the ceiling. Given these
facts that Defendant admitted during the plea colloquy and the undisputed facts of
the PSR, we are not left with a definite and firm conviction that the district court
erred by basing Defendant’s sentence on the threats of death made during the bank
robbery.4 See United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009) (“A
fact admitted to during a guilty plea cannot later be contested when it appears in
the Defendant’s [PSR].”); United States v. Wade, 458 F.3d 1273, 1277 (11th Cir.
2006) (stating that the failure to object to factual statements in the PSR admits
them for sentencing purposes).
4 It is also worth noting that Defendant’s original PSR included the same exact statement—that
as Defendant and his siblings entered the bank, “they shouted threats to bank employees and told
them . . . they would be killed”—but Defendant did not object to this factual statement at his
original sentencing hearing or in his first appeal.
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We turn next to Defendant’s contention that the district court committed
procedural error by basing Defendant’s sentence on his responsibility for his
brother’s reckless driving during the high-speed chase. The district court,
however, did not base Defendant’s sentence on his responsibility for his brother’s
reckless driving, but instead based the sentence on “the extent of substantial risks
to others while fleeing from law enforcement officers in Colorado.” The
undisputed portions of the PSR stated that, “[d]uring the chase, [Defendant and his
siblings] fired multiple shots at the pursuing officers.” Because the firing of
multiple shots at pursuing officers during a high-speed chase could create a
substantial risk to others, we cannot say that the district court relied on clearly
erroneous facts in fashioning Defendant’s sentence.
In the alternative, Defendant also asserts that even if these facts are not
clearly erroneous, the district court failed to comply with the procedures for
resolving factual disputes under Federal Rule of Criminal Procedure 32(i)(3)(B)
and (C). Federal Rule of Criminal Procedure 32(i)(3)(B) provides that the district
court “must—for any disputed portion of the presentence [investigation] report or
other controverted matter—rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed.R.Crim.P. 32(i)(3)(B). The
district court is also required to “append a copy of the court’s determinations under
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this rule to any copy of the presentence [investigation] report made available to the
Bureau of Prisons.” Id. 32(i)(3)(C). “A defendant triggers [Rule 32(i)(3)(B)] only
by challenging statements of fact that are in the presentence report.” United States
v. Owen, 858 F.2d 1514, 1517 (11th Cir. 1988) (discussing Rule 32(c)(3)(D), the
predecessor to Rule 32(i)(3)(B)).
Once the defendant challenges one of the factual statements of the PSR, the
burden is on the Government to establish the disputed fact by a preponderance of
evidence. United States v. Butler, 41 F.3d 1435, 1444 (11th Cir. 1995). “The trial
court must then either (1) make an explicit factual finding as to the allegation; or
(2) determine that no such finding is necessary because the matter controverted
will not be taken into account in sentencing the defendant.” Id.
Here, the district court overruled Defendant’s objections with respect to his
contentions that he did not personally threaten the bank occupants and that he did
not participate in his brother’s reckless driving. In doing so, the district court did
not consider any evidence from the Government or explicitly state that the disputed
facts would not be taken into account at sentencing. See id. Although this
constituted a procedural error, a procedural error in sentencing is “harmless if the
district court would have imposed the same sentence without the error.” United
States v. Barner, 572 F.3d 1239, 1248 (11th Cir. 2009). Again, we note that in
sentencing Defendant, the district court did not rely on threats Defendant
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personally made during the bank robbery, or Defendant’s participation in his
brother’s reckless driving during the high-speed chase. See supra. Instead, the
district court based its sentence on the threats of death made to the bank occupants
and the substantial risk to others caused by the high-speed chase, both of which
were factual findings that were supported by Defendant’s admissions during the
plea colloquy or undisputed factual statements in the PSR. Accordingly, we
conclude that any procedural error was harmless.
2. The district court fully explained Defendant’s sentence and
considered the 18 U.S.C. § 3553(a) factors
Defendant next asserts that the district court did not fully explain its reasons
for imposing a 360-month sentence—which was 183 months above the top of the
guideline range—or provide sufficient justification for imposing the significant
upward variance. He also contends that the district court did not meaningfully
consider the § 3553(a) factors.
We review de novo whether a district court complied with 18 U.S.C.
§ 3553(c)(1) by explaining its reasons for imposing a given sentence, regardless of
whether the defendant objected before the district court. United States v. Bonilla,
463 F.3d 1176, 1181 (11th Cir. 2006). While the district court does not need to
provide a lengthy explanation when it imposes a sentence within the guideline
range, the district court will explain why it has imposed a sentence outside of the
guideline range. See United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir.
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2008). Moreover, “[w]hen a sentence is outside of the Guidelines, the degree of
the variance must be supported by a ‘sufficiently compelling’ justification, and the
district court must explain its reasoning for the sentence in order to permit
meaningful appellate review.” United States v. Kapordelis, 569 F.3d 1291, 1317
(11th Cir. 2009).
Here, the district court explained its reasons for imposing a 360-month
sentence. In imposing the upward variance, the district court stated that it
considered “the threats of death made to the bank occupants, the number of
firearms used during the robbery, the types of firearms used during the robbery to
include semi-automatic firearms containing large capacity magazines, the number
of shots fired in the bank during the robbery, and the extent of the substantial risks
to others while fleeing from law enforcement officers in Colorado.” The district
court also explained that four specific § 3553(a) factors warranted a sentence
outside of the advisory guideline range: (1) the nature and circumstances of the
offense and the history and characteristics of Defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the crime; (3) the need to afford adequate deterrence; and (4) the
need to protect the public from further crimes of Defendant. Thus, we cannot say
that the district court failed to sufficiently explain its reasons for imposing an
upward variance. See id.
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We are also not persuaded by Defendant’s argument that the district court
failed to meaningfully consider the § 3553(a) factors. The district court not only
stated that it had considered the § 3553(a) factors, but it also specifically referred
to several of the factors. See United States v. Docampo, 573 F.3d 1091, 1100 (11th
Cir. 2009) (explaining that the district court need not discuss each of the § 3553(a)
factors, as its acknowledgement on the record that it considered the factors is
enough). The fact that the district court did not explicitly refer to each factor does
not render Defendant’s sentence unreasonable. Id. In sum, Defendant has not
shown that the district court imposed a procedurally unreasonable sentence.
C. Substantive Reasonableness
Finally, Defendant argues that his total 360-month sentence (240 months for
Count One and 120 months for Count Two) is substantively unreasonable. We
disagree. Defendant’s guideline range was 166 to 177 months’ imprisonment. By
imposing a 360-month sentence, the district court varied upward by a total of 183
months. Although the upward variance was significant, the sentence for Count
One was still five years less than the 25-year statutory maximum, and the sentence
for Count Two was well below the statutory maximum of life imprisonment. See
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (indicating that a
sentence well below the statutory maximum is indicative of reasonableness).
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Moreover, the district court supported the 183-month upward variance with
several of the § 3553(a) factors. Of note, the circumstances of the offense involved
shooting at a police officer in Florida, robbing a bank with pistols and an AK-47
type rifle, firing shots inside of an occupied bank, fleeing across state lines, and
shooting at police during a high-speed chase. See 18 U.S.C. § 3553(a)(1). Indeed,
it is fortunate that no one was killed as a result of Defendant’s conduct. The court
also noted that the upward variance was also necessary to promote respect for the
law, the need to afford adequate deterrence, and the need to protect the public from
future crimes of Defendant. See id. § 3553(a)(2).
Defendant’s argument that his upward variance amounts to impermissible
double counting is unavailing. The district court did not enhance Defendant’s
sentence based on the Sentencing Guidelines, but instead imposed an upward
variance pursuant to the § 3553(a) factors. United States v. Matos-Rodriguez, 188
F.3d 1300, 1309 (11th Cir. 1999) (“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.” (quotations omitted)).
We also reject Defendant’s argument that his 360-month sentence creates
unwarranted sentencing disparities between similarly-situated defendants.
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Although Defendant relies on several cases to support this claim,5 he does not
identify any case that involved similar offense conduct: armed robbery; shots fired
during the robbery; a high-speed chase where defendants fired at officers; and the
post-arrest recovery of numerous weapons and ammunition, including pistols, AK-
47 type rifles, and loaded magazines. Notably, we affirmed the 428-month and
360-month sentences of Defendant’s similarly-situated codefendants—his brother
and sister. See United States v. Dougherty, case no. 15-11357, manuscript op. at 2,
8 (11th Cir. 2015) (affirming Defendant’s sister’s 360-month sentence); Dougherty
I, 754 F.3d at 1363–64 (affirming Defendant’s brother’s 428-month sentence).
In short, we are not “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, 1190 (11th Cir.
2010) (quotation omitted). Accordingly, Defendant has not shown that the district
court abused its discretion by imposing a 360-month sentence.
5 In support of his argument that his sentence creates unwarranted sentencing disparities,
Defendant cites to three of our decisions: two published and one unpublished. See United States
v. Early, 686 F.3d 1219, 1221–23 (11th Cir. 2012) (affirming defendant’s 210-month sentence
for bank robbery, which was the result of a 113-month variance from the top of the guideline
range); United States v. Omar, 16 F.3d 1168, 1170–72 (11th Cir. 1994) (vacating defendant’s
165-month sentence for bank robbery, which was the result of a three-level upward departure in
the base offense level); United States v. Sihwail, 506 F. App’x 955, 956–59 (11th Cir. 2013)
(unpublished) (affirming defendant’s 230-month sentence for three bank robberies, which was
the result of a 115-month variance from the top of the guideline range).
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III. CONCLUSION
For the reasons stated above, Defendant’s sentence is AFFIRMED.
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MARTIN, Circuit Judge, concurring:
I agree with the majority that under the binding precedent of this Court,
when the District Court sentenced Mr. Stanley to thirty years in prison, even
though it was 183 months longer than the top of Mr. Stanley’s properly calculated
guideline range of 166 to 177 months, it did not impose a substantively
unreasonable sentence. Neither, under this Court’s precedent, was there procedural
error sufficient to constitute a basis for reversing Mr. Stanley’s sentence.
However, I write separately to emphasize the importance of abiding by the
Supreme Court’s directive to “consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree of the variance” in
upward-departure cases like this. Gall v. United States, 552 U.S. 38, 50, 128 S. Ct.
586, 597. As the Supreme Court cautioned us, “a major departure should be
supported by a more significant justification than a minor one,” and it is the duty of
our Court and the District Court to carefully ensure that a strong justification has
been provided when a departure as large as this one has occurred. Id.
I concur in the judgment of the majority.
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