USA v. Albert Ward, III

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10800
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT WARD, III,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cr-00513-ACA-SGC-1
____________________
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2 Opinion of the Court 21-10800
Before J ILL PRYOR , BRANCH, and J ULIE C ARNES, Circuit Judges.
PER CURIAM:
Defendant Albert Ward III was convicted in 2021 of carjack-
ing in violation of 18 U.S.C. § 2119, brandishing a firearm in fur-
therance of a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii), and Hobbs Act robbery in violation of 18 U.S.C.
§ 1951. The district court sentenced Defendant to serve a total of
240 months in prison, which was a six-month upward variance
from the upper end of Defendant’s guidelines range. Defendant
appeals his sentence, arguing that it is substantively unreasonable
because the upward variance was based exclusively on the serious-
ness of Defendant’s crimes, a factor already accounted for in the
guidelines, and because the district court failed to adequately con-
sider mitigating evidence. We affirm.
BACKGROUND
In September 2019, Defendant was charged in a three-count
indictment with carjacking in violation of 18 U.S.C. § 2119, bran-
dishing a firearm during the course and in furtherance of a crime
of violence (the carjacking) in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii), and Hobbs Act robbery in violation of 18 U.S.C.
§ 1951. The charges stemmed from two incidents that occurred in
December 2018. On December 6, 2018, Defendant approached a
woman who was parking her car in a mall parking deck, put a gun
in the woman’s face, demanded her purse and keys, and then drove
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21-10800 Opinion of the Court 3
off in the woman’s car. Two days later, on December 8, 2018, De-
fendant robbed a convenience store, during which robbery De-
fendant beat the store clerk with a screwdriver and then fled with
the store’s cash register. The clerk suffered significant injuries to
his head and hands during the attack, and he had to be hospitalized
for several days.
Defendant pled guilty to all three counts in the indictment
pursuant to a plea agreement. Defendant acknowledged in the
agreement that the maximum sentence for the charged offenses
was: (1) imprisonment for not more than 15 years on the carjack-
ing count, (2) imprisonment for not less than 7 years and not more
than life on the § 924(c) count, which sentence would run consec-
utively to Defendant’s sentence on all other counts, and (3) impris-
onment for not more than 20 years on the Hobbs Act robbery
count. Defendant stipulated in the agreement that the underlying
facts of his offenses, as briefly described above, were substantially
correct and could be used by the district court to calculate his sen-
tence. The Government indicated in the agreement that it would
recommend a sentence of “at the low end of the guideline range,
but not less than a combined sentence of 240 months on all
counts.” Defendant agreed to waive the right to appeal his convic-
tion and sentence in the case, but he reserved the right to appeal a
sentence imposed in excess of his calculated guidelines range.
The Pre-Sentence Report (“PSR”) assigned Defendant a total
offense level of 26. The PSR described a long history of arrests be-
ginning in 2005 and continuing through 2017, including arrests for
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4 Opinion of the Court 21-10800
burglary, theft, robbery, receipt of stolen property, first degree as-
sault (beating the victim with a baseball bat), and various drug
charges. Based on his prior criminal activity, the PSR assigned De-
fendant a criminal history category of VI. Defendant’s criminal his-
tory score and his total offense level yielded an advisory guidelines
range of 120 to 150 months for the carjacking and Hobbs Act rob-
bery counts, plus 84 months on the § 924(c) count to run consecu-
tively to Defendant’s sentence on the other counts. Assuming con-
current sentences for the carjacking and robbery counts and a con-
secutive sentence for the § 924(c) count, Defendant’s recom-
mended guidelines range was 204 to 234 months.
Defendant did not object to any of the facts set out in the
PSR, or to its ultimate recommendation. In his sentencing memo-
randum, Defendant requested a sentence of 219 months. Defend-
ant specifically asked that the district court consider the mitigating
factors of his drug addiction overlapping with a mental health dis-
order (bipolar disorder with psychotic features) that had caused
symptoms since Defendant’s childhood. Defendant also attached
evidence to his memorandum showing that he had a supportive
and loving family.
At Defendant’s sentencing hearing, the district court ac-
cepted the PSR’s determination of Defendant’s offense level and
criminal history category, and it acknowledged that his advisory
guidelines range was 120 to 150 months on the carjacking and
Hobbs Act robbery counts, plus an 84-month mandatory consecu-
tive sentence on the § 924(c) count. Defendant’s father testified at
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21-10800 Opinion of the Court 5
the sentencing hearing about Defendant’s history of drug use and
mental health issues, and Defendant testified on his own behalf, of-
fering an apology to the victims of his offenses. The Government
emphasized to the district court Defendant’s extensive criminal his-
tory, including a prior assault that was originally charged as at-
tempted murder, during which Defendant beat the victim with a
baseball bat. Based on Defendant’s extensive criminal history and
his violent offense in this case, the Government asked that Defend-
ant be sentenced to 240 months, which it acknowledged was a six-
month upward variance from Defendant’s recommended guide-
lines range.
At the conclusion of the sentencing hearing, the district
court sentenced Defendant to concurrent terms of 156 months on
the carjacking and Hobbs Act robbery counts, plus a consecutive
84-month term on the § 924(c) count, for a total sentence of 240
months, to be followed by five years of supervised release. The
court also ordered Defendant to pay restitution in the amount of
approximately $19,000 related to damages claimed by Defendant’s
carjacking victim and injuries suffered by the store clerk during De-
fendant’s robbery of the convenience store. The court indicated
that it had imposed an upward variance from Defendant’s guide-
lines range because of the seriousness and violent nature of Defend-
ant’s offenses and his extensive and violent criminal history. De-
fendant objected to the sentence, arguing that it was substantively
unreasonable. He now appeals on the same ground.
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6 Opinion of the Court 21-10800
DISCUSSION
Defendant’s challenge to the substantive reasonableness of
his sentence is governed by 18 U.S.C. § 3553(a). Pursuant to
§ 3553(a), a district court must impose a sentence that is “sufficient,
but not greater than necessary, to comply with the purposes” listed
in the statute, which include “reflecting the seriousness of the of-
fense, promoting respect for the law, providing just punishment,
affording adequate deterrence, protecting the public from the de-
fendant’s further crimes, and providing the defendant with appro-
priate correctional treatment.”
United States v. Taylor, 997 F.3d
1348, 1354 (11th Cir. 2021) (citing 18 U.S.C. § 3553(a) (quotation
marks omitted)). In addition, the district court must consider, as
relevant, the “nature and circumstances” of the offense and the
“history and characteristics” of the defendant, as well as the “types
of sentences available, the applicable guideline range, any pertinent
policy statement issued by the Sentencing Commission, the need
to avoid unwarranted sentencing disparities, and the need to pro-
vide restitution to victims.”
Id. (citing 18 U.S.C. § 3553(a)(1)-(7)
(quotation marks omitted)).
The weight accorded to any one of the factors set out in
§ 3553(a) “is a matter committed to the sound discretion of the dis-
trict court.”
Id. (quotation marks omitted). The district court need
not weigh all the § 3553(a) factors equally, and it has discretion to
weigh any factor or combination of factors more heavily than the
guidelines range.
See United States v. Rosales-Bruno, 789 F.3d
1249, 1254 (11th Cir. 2015). Moreover, the district court “is not
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21-10800 Opinion of the Court 7
required to explicitly address each of the § 3553(a) factors or all of
the mitigating evidence.”
Taylor, 997 F.3d at 1354. “Rather, an
acknowledgment that the district court has considered the defend-
ant’s arguments and the § 3553(a) factors will suffice.”
Id. at 1354–
55 (quotation marks omitted and alterations adopted).
We review the substantive reasonableness of Defendant’s
sentence pursuant to § 3553(a) under the deferential abuse of dis-
cretion standard.
See id. at 1352 (citing
Gall v. United States, 552
U.S. 38, 41 (2007)). In the sentencing context, an abuse of discretion
occurs when the district court does not consider factors that are
relevant and “due significant weight” under § 3553(a), when it
“gives significant weight to improper or irrelevant factors”, or
when it “commits a clear error of judgment in considering the
proper factors.”
United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (
en banc) (quoting
United States v. Campa, 459 F.3d
1121, 1174 (11th Cir. 2006) (quotation marks omitted)). To show
that the district court abused its discretion here, Defendant “bears
the burden of demonstrating that [his] sentence is unreasonable in
light of the record, the factors listed in . . . § 3553(a), and the sub-
stantial deference afforded sentencing courts.”
Taylor, 997 F.3d at
1352–53. We will vacate Defendant’s sentence “only if we are left
with the definite and firm conviction that the district court com-
mitted a clear error of judgment in weighing the § 3553(a) factors
by imposing a sentence that falls outside the range of reasonable-
ness as dictated by the facts of the case.”
See id. at 1355 (quotation
marks omitted).
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8 Opinion of the Court 21-10800
Applying the above standards, the district court did not
abuse its discretion by imposing a total sentence of 240 months for
Defendant’s carjacking, § 924(c), and Hobbs Act robbery convic-
tions. Although it was not required to do so, the district court ex-
pressly addressed every relevant § 3553(a) factor and all the miti-
gating evidence presented by Defendant during Defendant’s sen-
tencing hearing. As authorized by the governing case law, the dis-
trict court weighed most heavily: (1) Defendant’s history of violent
offenses during the 15 years leading up to the carjacking and rob-
bery that led to his conviction in this case—including one prior of-
fense that was originally charged as attempted murder, during
which Defendant beat a man with a baseball bat, and (2) the seri-
ousness and violence involved in the carjacking and robbery De-
fendant was convicted of committing in this case, during the for-
mer of which the Defendant put a gun directly in a woman’s face
in a mall parking lot so he could steal her car and during the latter
of which Defendant beat a store clerk with a screwdriver to the
point that the clerk needed to be hospitalized for several days and
then stole the store’s cash register. Based on these factors, the
court determined—reasonably in our opinion—that a 240-month
sentence, a slight upward variance from the upper end of Defend-
ant’s guidelines range of 234 months, was “necessary to promote
in [Defendant] a respect for the law and to provide just punishment
for these offenses, but importantly, to protect the public from fur-
ther criminal behavior” by Defendant.
See United States v. Riley,
995 F.3d 1272, 1279 (11th Cir. 2021) (noting that “discretion in
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21-10800 Opinion of the Court 9
weighing sentencing factors is particularly pronounced when it
comes to weighing criminal history”).
Defendant argues that the district court did not consider his
mitigation evidence, including evidence that he suffered from men-
tal illness and that he had a supportive family that could “serve to
reduce recidivism concerns.” We are not persuaded. The district
court stated during the sentencing hearing that it “appreciate[d]
that [Defendant] suffere[ed] from some mental illness.” But based
on the evidence presented, the court determined that “all of [De-
fendant’s] mental illness [was] related to [his] drug use in one way
or another.” Specifically, Defendant’s two hospital admissions due
to mental health issues were both “preceded by drug use.” As for
Defendant’s family support, the district court considered the testi-
mony of Defendant’s father, who described his many unsuccessful
efforts to help Defendant get on a better path, which efforts in-
cluded providing Defendant with financial support and various
types of therapy and treatment. But the court determined—again
reasonably, based on the evidence that was presented—that De-
fendant’s strong family support had not decreased his propensity to
commit violent crimes. In that regard, the court noted that De-
fendant had “been given every—literally every opportunity that
anyone could have wished for” but that he had nevertheless been
on an essentially continuous crime spree anytime he was not in
custody during the 15 years preceding the carjacking and robbery
that led to his conviction in this case.
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10 Opinion of the Court 21-10800
The only other fact Defendant offers in support of his sub-
stantive reasonableness argument is that his sentence involved an
upward variance from his guidelines range. Again, we are unper-
suaded by Defendant’s suggestion that the upward variance alone
establishes an abuse of discretion by the district court. There is no
presumption of unreasonableness for sentences outside the guide-
lines range.
See Irey, 612 F.3d at 1187 (“the appellate court may
not presume that a sentence outside the guidelines is unreasona-
ble”). The district court explained its decision to upwardly vary,
stating that Defendant’s case was “the vary rare case where a vari-
ance upward is what is sufficient, but not greater than necessary,
to comply with the statutory purposes of sentencing” as a result of
the seriousness of Defendant’s offenses in this case and in other in-
stances prior to this case. Defendant notes that the guidelines al-
ready accounted for the seriousness of his offense and his criminal
history, but that does not establish unreasonableness.
See United
States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020) (explaining
that district courts maintain discretion to use a factor to justify an
upward variance, even if the factor is already accounted for by the
guidelines). Furthermore, Defendant’s156-month sentences on the
carjacking and Hobbs Act robbery counts are below the statutory
maximum for both convictions—15 years (180 months) for the car-
jacking conviction and 20 years (240 months) for the Hobbs Act
robbery, an indicator of reasonableness.
See United States v. Stan-
ley, 739 F.3d 633, 656 (11th Cir. 2014) (“A sentence imposed well
below the statutory maximum penalty is an indicator of a reasona-
ble sentence.”).
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21-10800 Opinion of the Court 11
In short, Defendant has not carried his burden of showing
that the district court abused its discretion by imposing a total sen-
tence of 240 months for his carjacking, § 924(c), and Hobbs Act rob-
bery convictions. On the contrary, it is apparent from the record
that the district court considered all the relevant sentencing factors
and acted within its discretion in weighing those factors to arrive
at a sentence that is “sufficient, but not greater than necessary, to
comply with the purposes” of sentencing as set out in § 3553(a).
Id.
at 655. Accordingly, Defendant’s sentence is AFFIRMED.
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