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United States v. Reed

United States Court of Appeals, First Circuit

July 18, 2016

UNITED STATES OF AMERICA, Appellee,
v.
CHARLES REED, III, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Nancy Torresen, U.S. District Judge]

          James S. Hewes on brief for appellant.

          Margaret D. McGaughey, Assistant United States Attorney, and Thomas E. Delahanty II, United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

          KAYATTA, Circuit Judge.

         After pleading guilty to a robbery in which he brandished a firearm, Charles Reed, III ("Reed"), received a 192-month prison sentence. Reed now appeals this sentence, arguing that the district court erred in concluding that his prior convictions subjected him to a 15-year mandatory minimum sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and also triggered a career offender sentencing enhancement under the United States Sentencing Guidelines ("the Guidelines"). Because the district court properly applied the career offender enhancement, and because Reed has shown no plain error in the district court's conclusion that the ACCA applied, we affirm.

         I. Background[1]

         On December 2, 2013, Reed and his roommates, Ryan Forrest ("Forrest") and Walter Heathcote ("Heathcote"), decided to commit a robbery. The trio first discussed and discarded the idea of robbing a gas station. They then visited a Walmart store with the unrealized aim of stealing a television. Reed, high on heroin, next suggested that they rob a Family Dollar store in Biddeford, Maine. After Heathcote drove the trio to the store, Reed--who was armed with a hunting rifle--went into the store with Forrest. The two approached the cashier and demanded money. Recognizing Reed as a regular customer, the cashier initially thought the robbery was a joke, but Reed disabused the cashier of that impression by asking him if he wanted to find out whether Reed's rifle was real.

         The cashier told Reed and Forrest that he could not open the store's safe without the store manager. Forrest found the manager and the manager's pregnant fiancée in a nearby aisle and brought them to the cashier. The manager input his code into the safe, but he informed Reed and Forrest that the safe would not open for two minutes due to a security feature. Becoming anxious, Reed and Forrest left without waiting for the safe to open, pausing only long enough to take the store's cordless phone, the cell phone of a bystander, and multiple cartons of cigarettes, as well as $600 from the open cash register.

         Not surprisingly, police shortly thereafter arrested Reed. He pled guilty to a federal information[2] charging him with one count each of robbery, 18 U.S.C. § 1951(a); brandishing of a firearm during and in relation to a crime of violence, id. § 924(c)(1)(A)(ii); and possession of a firearm by a felon subject to the ACCA's mandatory minimum sentence ("the ACCA count"), id. §§ 922(g)(1), 924(e). A Presentence Investigation Report ("PSR") prepared by the probation office grouped the robbery count together with the ACCA count, see U.S.S.G. § 3D1.2(c), and assigned the grouped counts a base offense level of 24.[3] That base offense level was overridden, however, by the probation office's determination that Reed's prior convictions rendered him subject to the Guidelines' so-called career offender enhancement. See id. § 4B1.1. As a result of the enhancement, Reed's base offense level was set at 37, and his Criminal History Category was set at VI. See id. § 4B1.1(b). The PSR then granted Reed a three-level reduction for his acceptance of responsibility, see id. §§ 3E1.1(a)–(b), 4B1.1(b) n.*, resulting in a total offense level of 34 on the grouped counts. The combination of Reed's total offense level and Criminal History Category produced a recommended Guidelines sentencing range of 262–327 months for the grouped counts.

         The remaining, ungrouped count--brandishing of a firearm during and in relation to a crime of violence--carried an 84-month mandatory minimum sentence to be served consecutively to the sentence imposed on the grouped counts. See 18 U.S.C. § 924(c)(1)(A)(ii), (c)(1)(D)(ii). Adding this mandatory minimum to both ends of the grouped counts' recommended sentencing range of 262–327 months, see U.S.S.G. § 4B1.1(c)(2)(A), the PSR ultimately produced a total Guidelines sentencing range of 346– 411 months.

         Reed argued that neither the career offender Guidelines enhancement nor the ACCA applied to him. The district court disagreed on both points, approving the PSR's determinations in relevant part. Nonetheless, the district court accepted the government's recommendation that it apply a three-level downward departure from the range recommended in the PSR and instead use a range of 235-293 months as a "jumping off point" for Reed's sentence. From this baseline, the government recommended a downwardly variant or low-end sentence between 180 and 240 months. For his part, Reed recommended a sentence of 156 months. The district court agreed that a downward variance was appropriate and imposed a 192-month sentence, [4] specifically observing that "this [was] the right sentence for the crime that was committed" and that it "would [have] impose[d] the same sentence under the [sentencing factors laid out in 18 U.S.C. § 3553(a)]" even had it not found Reed to be a career offender under the Guidelines. Reed now appeals his sentence.[5]

         II. Analysis

         A. Standard of Review

         Where a defendant has preserved a claim that his past convictions are insufficient to trigger the ACCA's mandatory minimum or the Guidelines' career offender enhancement, we review the claim de novo. See United States v. Hart, 674 F.3d 33, 40 (1st Cir. 2012); United States v. Santos, 363 F.3d 19, 22 (1st Cir. 2004). We uphold the district court's resolution of any subsidiary factual disputes, however, unless clearly erroneous. See Santos, 363 F.3d at 22. Finally, even where an error in sentencing occurs, we may nevertheless affirm the sentence if the government demonstrates that "'the district court would have imposed the same sentence' even without the error." United States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)); cf. also Molina-Martinez v. United States, 136 S.Ct. 1338, 1346 (2016) (error in calculating Guidelines sentencing range may be harmless on plain-error review when the record shows that "the district court thought the sentence it chose was appropriate irrespective of the Guidelines range").

         B. Career ...


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