USA v. Charles Pretlow

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11694
Non-Argument Calendar
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D.C. Docket No. 6:12-cr-00021-BAE-GRS-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES PRETLOW,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 18, 2013)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Charles Pretlow appeals his 12-month sentence for concealing an escaped
prisoner. After reviewing the record and the parties’ briefs, we affirm.
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I
Cecil Nelson, Mr. Pretlow’s cousin, escaped from a Swainsboro, Georgia
prison while awaiting sentencing following a high-profile conviction for
conspiracy to kidnap. According to Mr. Pretlow’s account of events, he agreed to
assist Mr. Nelson after Mr. Nelson explained that he had been released on bond
and sought to leave Georgia for his own safety. En route to Pennsylvania, Mr.
Nelson confessed to Mr. Pretlow that he had in fact escaped. Mr. Pretlow
persuaded Mr. Nelson to surrender to authorities, and the FBI prearranged for Mr.
Nelson to surrender at a designated location. Instead of leaving Mr. Nelson there,
however, Mr. Pretlow acceded to Mr. Nelson’s instructions and instead dropped
him off at his mother’s residence, where he later submitted to authorities.
Mr. Pretlow pled guilty to concealing an escaped prisoner in violation of 18
U.S.C. § 1072. Mr. Pretlow’s pre-sentence investigation report, as adopted by the
district court, listed an advisory guidelines range of four to ten months’
imprisonment. Before sentencing, the government moved for a reduction in
sentence, citing Mr. Pretlow’s cooperation and admission of responsibility. At
sentencing, the district court expressed skepticism about Mr. Pretlow’s initial
ignorance of Mr. Nelson’s escape, particularly in light of the extensive media
coverage surrounding the event, and sentenced him to twelve months’
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imprisonment to be followed by twelve months’ supervised release, an upward
variance of two months from the top end of the advisory guideline range.
On appeal, Mr. Pretlow argues that his sentence is substantively
unreasonable because the district court erroneously factored in Mr. Nelson’s
underlying crime in imposing an upward variance on Mr. Pretlow’s sentence.
II
We review the substantive reasonableness of a sentence for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). This standard
applies “[r]egardless of whether the sentence imposed is inside or outside the
Guidelines range.” Id. Even if the district court's sentence is more severe or more
lenient than the sentence we would have imposed, we will only reverse if we are
“left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the [18 U.S.C.] § 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) (en banc)
(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).
III
Mr. Pretlow contends that the district court abused its discretion when it
imposed an upward variance on the basis of Mr. Nelson’s underlying crime.
Subject to several listed enhancements that do not apply to Mr. Pretlow, § 2X3.1,
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the advisory guideline applicable to violations of 18 U.S.C. § 1072 provides for a
base offense level of “6 levels lower than the offense level for the underlying
offense[.]” U.S.S.G. § 2X3.1 (a)(1). Mr. Pretlow appears to read § 2X3.1 as
setting forth the only bases on which a district court may impose an enhancement
to a sentence for a violation of 18 U.S.C. § 1072. Mr. Pretlow, however, cites no
authority in support of this proposition, nor have we located any.
To the extent the district court factored in Mr. Nelson’s underlying crime in
imposing an upward variance, it did not abuse its discretion in doing so. Mr.
Pretlow’s argument does not account for the non-binding nature of the advisory
guidelines following the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005). See United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006)
(“If Booker is to mean anything, it must be that district courts are obligated to
impose a reasonable sentence, regardless of the Guidelines range, so long as the
Guidelines have been considered.”). The record indicates that the district court
considered the advisory guidelines but that other factors dictated an upward
variance to reach an appropriate sentence. In addition to citing the factors
identified in 18 U.S.C. § 3553(a), the district court underscored the apprehension
that Mr. Nelson’s escape—which Mr. Pretlow prolonged—engendered in the
community, Mr. Pretlow’s decision to assist Mr. Nelson in disregarding his
scheduled rendezvous with the FBI, and Mr. Pretlow’s extensive criminal history
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which, in the district court’s view, his pre-sentence investigation report did not
adequately reflect. The district court, in short, considered the advisory guidelines
but determined that the unique factual circumstances of the case warranted an
upward variance. Because we find that “the justification for the variance [is]
sufficiently compelling to support the degree of the variance,” Irey, 612 F.3d at
1187 (internal quotation marks omitted), we find that the imposed upward variance
was reasonable.
IV
Mr. Pretlow’s 12-month sentence is affirmed.
AFFIRMED.
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