USA v Deamonte Kendricks

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11076
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-00400-MHC-AJB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEAMONTE KENDRICKS,
a.k.a. Deamonte J. Kendricks,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(February 8, 2018)
Before ROSENBAUM, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
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Deamonte Kendricks appeals his sentence of 57 months’ imprisonment
imposed after he pled guilty to one count of being a felon in possession of a
firearm. His sentence represents a six-month downward variance from the low end
of the applicable sentencing range under the Federal Sentencing Guidelines
Manual (“U.S.S.G.”). Kendricks argues that his sentence is substantively
unreasonable because the district court refused to impose a greater downward
variance to avoid unwarranted disparity in sentencing between himself and his
state codefendant and to account for the fact that but for Kendricks’s honesty when
questioned by police, his guidelines sentence would have been lower. For the
reasons that follow, we affirm.
I.
On October 1, 2015, Kendricks and his passenger, Martinez Antwan Arnold,
fled a traffic stop and engaged in a short, high-speed chase that ended after
Kendricks ran a stop sign, lost control of the vehicle, and hit a guard rail. The
police apprehended the men after they attempted to flee on foot. Upon searching
the vehicle, the officers discovered a small amount of marijuana as well as a pistol
and a semiautomatic rifle, both loaded. Later investigation revealed that both
firearms were stolen.
In subsequent interviews with police, Kendricks admitted that he owned the
rifle and that he lent it to Arnold, who planned to use it that night to retaliate
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against a rival gang who beat him up. Kendricks also told police that the pistol
was his and described an unrelated incident involving that firearm.
Kendricks and Arnold were both charged in state court, but while Kendricks
was also charged in the instant case in federal court, Arnold was not charged in
federal court. After unsuccessfully moving in the instant case to suppress his
statements to police,1 Kendricks pled guilty to being a felon in possession of a
firearm.2 Both Kendricks’s and Arnold’s state-court cases are still pending.
II.
The guideline for the count of conviction was U.S.S.G. § 2K2.1(a)(4)(B).
For the sole count, the base offense level was 20 because the offense involved a
firearm capable of accepting a large-capacity magazine (the semi-automatic rifle),
and Kendricks was a prohibited person at the time he committed the offense. The
court added two points under § 2K2.1(b)(4)(A) to the offense level because the
pistol was stolen. And it added another four under § 2K2. 1 (b)(6)(B) because
Kendricks knowingly allowed Arnold to possess the rifle to be used in connection
with a planned drive-by shooting, another felony offense. Under § 3C1.2, two
more points were added because Kendricks recklessly created a substantial risk of
death or serious bodily injury to another person when he fled from arresting
officers in a high-speed chase and ran a stop sign before crashing. As a result,
1 Kendricks does not challenge the denial of this motion on appeal.
2 Kendricks was previously convicted on May 15, 2015, of felony shoplifting and possession of drug
paraphernalia.
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Kendricks’s adjusted offense level was 28, before the subtraction of three points
under §§ 3E 1.1(a) and 3E1.1(b) because Kendricks accepted responsibility for the
offense and assisted authorities by timely notifying them of his intention to enter a
guilty plea. Thus, the total adjusted offense level was 25.
Kendricks received one criminal history point for a prior conviction for
shoplifting and possession of drug paraphernalia. Because Kendricks was on
probation for that crime when he committed the instant offense, his criminal-
history score was increased by two under U.S.S.G. § 4A1 .1(d), resulting in a total
criminal-history score of three and establishing a criminal-history category of II.
Based on a total adjusted offense level of 25 and a criminal-history category of II,
the probation officer calculated Kendricks’s guideline range to be 63 to 78 months
of imprisonment.
The government asked the court to account in Kendricks’s sentence for
certain conduct that Kendrick did not plead guilty to. For this part, Kendricks
argued for a below-guidelines sentence of 37 months’ imprisonment, arguing that
Arnold initiated the instant offense, his prior criminal history was for shoplifting
only, and his offense level was higher because of his honesty during his interviews
with police. Kendricks further contended that while he understood the court’s
reason for denying his motion to suppress the statements, a downward variance
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was appropriate to account for the circumstances under which the statements were
made.
The court declined to consider conduct for which Kendricks was not
convicted and specifically considered his age, history, association with gang
activity, and the seriousness of the crime. It then imposed a 57-month sentence of
imprisonment with three years of supervised release.
III.
We review all sentences, whether within or outside the guidelines, for
reasonableness under an abuse-of-discretion standard. United States v. Irey, 612
F.3d 1160, 1186 (11th Cir. 2010) (en banc). The challenging party bears the
burden of showing that the sentence is unreasonable in light of the record and the
18 U.S.C. § 3553(a) factors. United States v. Victor, 719 F.3d 1288, 1291 (11th
Cir. 2013).
The district court’s sentence must be “sufficient, but not greater than
necessary to comply with the purposes” listed in § 3553(a)(2), including the need
for the sentence to reflect the seriousness of the offense and to promote respect for
the law, the need for adequate deterrence, the need to protect the public, and the
need to provide the defendant with educational or vocational training, medical
care, or other correctional treatment. 18 U.S.C. § 3553(a)(2); Victor, 719 F.3d at
1291. The court should also consider the nature and circumstances of the offense
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and the history and characteristics of the defendant, the kinds of sentences
available, the guideline range, any pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the need to
provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).
IV.
Section § 3553(a)(6) of Title 18 specifically directs courts to consider “the
need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.” Well-founded claims of
unwarranted sentencing disparity “assume[] that apples are being compared to
apples.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009)
(quotation omitted). Thus, § 3553(a)(6) applies only when comparing sentences
among defendants “who have been found guilty of similar conduct.” See United
States v. Martin, 455 F.3d 1227, 1241 (11th Cir. 2006) (emphasis in original)
(rejecting seven-day sentence imposed by the district court after that court
considered that a more culpable individual had been found not guilty).
Additionally, the need to avoid unwarranted sentencing disparities arises only in
the context of federal sentencing. Docampo, 573 F.3d at 1102 (rejecting argument
that federal defendant was entitled to a less severe sentence based on the sentences
received by other defendants in state court). Comparing a state sentence with a
federal sentence does not establish an unwarranted sentencing disparity. See id.
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Here, the district court did not abuse its discretion in sentencing Kendricks
to a below-guidelines term of 57 months’ imprisonment. Kendricks argues that
pursuant to 18 U.S.C. § 3553(a)(6), his sentence is disparately high in comparison
to his state-court codefendant, Arnold. However, Arnold has not been charged or
found guilty of similar conduct at the federal-court level. His only charges are
pending in state court. So Arnold is not similarly situated to Kendricks for
purposes of considering parity in sentencing. See Docampo, 573 F.3d at 1102.
Kendricks also argues that his honesty with police during questioning, in
which he knowingly and voluntarily waived his right to an attorney, resulted in an
enhancement to his offense level under the sentencing guidelines. But while the
district court did not expressly acknowledge its consideration of his acceptance of
responsibility, the court reduced his offense level and sentenced him on the lower
end of the sentencing range. So the extent that Kendricks’s honesty may have
resulted in an increase in his offense level, it was accounted for under the
guidelines via a reduction in offense level.
Kendricks did not carry his burden of showing that the district court abused
its discretion in considering the 18 U.S.C. § 3553(a) factors.
V.
For these reasons, we affirm Kendricks’s sentence.
AFFIRMED.
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