USA v. Oyango Lanar Tolbert

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-15971
Non-Argument Calendar
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D.C. Docket No. 3:10-cr-00071-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OYANGO LANAR TOLBERT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(May 24, 2013)
Before WILSON, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
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Oyango Tolbert appeals his 186-month sentence, imposed after he was
found guilty by a jury of one count of possession of cocaine base with intent to
distribute, and one count of possession of cocaine with intent to distribute, both in
violation of 21 U.S.C. § 841(a)(1). Tolbert’s sentence includes a 36 month upward
variance from the top end of his guideline range. On appeal, Tolbert argues his
sentence is unreasonable because the district court failed to provide adequate
justification for the variance and overemphasized his criminal history.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 128 S. Ct. 586, 591 (2007). To be
upheld on appellate review, a sentence must be both procedurally and substantively
reasonable. United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010). The
party challenging the sentence bears the burden of showing it is unreasonable in
light of the record and the § 3553(a) factors. United States v. Rodriguez, 628 F.3d
1258, 1264 (11th Cir. 2010).
Procedural Reasonableness
A sentence is procedurally unreasonable if the district court erred in
calculating the guideline range, treated the guidelines as mandatory, failed to
consider the § 3553(a) factors, selected a sentence based on clearly erroneous facts,
or failed to adequately explain the sentence, including any deviation from the
guideline range. Rodriguez, 628 F.3d at 1264. Extraordinary justification or rigid
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mathematical formulas are not required for a sentence outside the guideline range,
but the district court should explain why the variance is appropriate and the
“justification for the variance must be sufficiently compelling to support the degree
of the variance.” United States v. Irey, 612 F.3d 1160, 1187 (11th Cir. 2010) (en
banc) (quotations omitted).
The record demonstrates that the district court provided ample justification
for the upward variance in Tolbert’s sentence. The district court varied upward
due to Tolbert’s likelihood of recidivism, given his criminal history and
disciplinary record in prison, and the inadequate extent to which his criminal
background was captured in his criminal history category. Because the district
court considered Tolbert’s arguments and the § 3553(a) factors and provided an
adequate explanation for the upward variance, Tolbert’s total sentence was
procedurally reasonable. Irey, 612 F.3d at 1187; Rodriguez, 628 F.3d at 1264.
Substantive Reasonableness
The substantive reasonableness of a sentence is determined in light of the
totality of the circumstances, and we will not vacate a sentence as substantively
unreasonable unless “left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the § 3553(a) factors” and
issued a sentence outside the range of reasonable sentences. Rodriguez, 628 F.3d
at 1264. A sentence outside the guidelines is not presumed to be unreasonable, and
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we must give deference to the district court's decision that the § 3553(a) factors
justify the extent of the variance. Turner, 626 F.3d at 574. When a defendant’s
criminal history category inadequately reflects his serious criminal record, an
upward variance is within the discretion of the district court. See United States v.
Shaw, 560 F.3d 1230, 1240-41 (11th Cir. 2009) (holding an upward variance for a
defendant who had 1.5 times the necessary points to reach the highest possible
criminal history category was reasonable).
Tolbert’s sentence was substantively reasonable. The district court
discussed its serious concerns regarding Tolbert’s extensive criminal record and
his high likelihood of recidivism. Tolbert’s criminal history was replete with
serious and harmful acts, like theft, reckless endangerment, and eluding law
enforcement, and the district court’s determination that an upward variance was
necessary to protect the public was reasonable. Turner, 626 F.3d at 574. The
district court also noted Tolbert had nearly half again as many points needed to
reach the highest possible criminal history category, and acted within its discretion
when varying upward to promote respect for the law and account for the high
likelihood of recidivism. 18 U.S.C. § 3553(a)(2); Shaw, 560 F.3d at 1240-41. In
sum, the district court did not abuse its discretion in imposing Tolbert’s sentence,
and we affirm the 186 month sentence as procedurally and substantively
reasonable.
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AFFIRMED.
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