USA v. Marvin Morris Carridice

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10070
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN MORRIS CARRIDICE,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60214-AHS-3
____________________
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2 Opinion of the Court 22-10070
Before GRANT, LAGOA, and B RASHER , Circuit Judges.
PER CURIAM:
Marvin Carridice pleaded guilty to illegally re-entering the
United States. The district court sentenced him to 42 months in
prison. Because his sentence was procedurally and substantively
reasonable, we affirm.
I.
Carridice is a native and citizen of Jamaica. In 2009,
Carridice pleaded no contest to five criminal offenses in Florida
state court: second-degree murder and attempted first degree
murder, burglary of a conveyance, grand theft, carrying a
concealed firearm, and possession of cannabis. Carridice was
sentenced to 14 years in prison for his murder charges, 12 years in
prison for the burglary, and 5 years each for the other three
offenses—all of which were served concurrently. In 2018,
Carridice was released from custody, and an Immigration Judge
issued a final order removing him from the United States. As an
alien removed for committing an aggravated felony under Section
237 of the Immigration and Nationality Act, Carridice was
prohibited from entering, attempting to enter, or being in the
United States at any time.
See 8 U.S.C. §§ 1227(a)(2)(A)(iii);
1326(a)–(b).
In 2021, Carridice traveled with 16 other migrants on a small
boat from the Bahamas to Florida. The trip did not end well for
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22-10070 Opinion of the Court 3
Carridice, who was detained in Pompano Beach after the boat
crashed into a seawall while fleeing from law enforcement.
Carridice was charged with illegal entry of a removed alien in
violation of 8 U.S.C. § 1326(a) and (b)(2), and he pleaded guilty.
The presentence investigation report (“PSI”) applied the
U.S. Sentencing Guidelines to recommend an advisory range for
Carridice’s sentence. The PSI determined that Carridice had 12
criminal history points, placing him in criminal history category V,
with an offense level of 15. Based on this combination, the advisory
Guidelines range was 37 to 46 months in prison.
Carridice did not object to the PSI, but he did request a
downward variance from the Guidelines range. Carridice first
argued that—while his criminal history score was technically
correct—the court ought to more fairly consider his criminal
history as category III instead of category V. He reasoned that he
had only pleaded to the five-year statutory maximum of his three
lesser state criminal offenses because the sentences were to be
served concurrently, and that those then-seemingly meaningless
extra years inflated his criminal history score by nine points. He
also argued that he had reformed his character. He submitted
certificates showing that he had completed a variety of voluntary
courses while in prison, as well as character references from friends
and family who attested to his contributions to his community in
Jamaica. Finally, he argued that he was fleeing death threats and
political violence in his community in Jamaica. In support of this
last argument, he included a letter from a local police officer in his
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4 Opinion of the Court 22-10070
parish in Jamaica detailing the “political and gang violence which
span several decades’ [sic]” and an uptick in violence in 2021. He
also submitted the redacted asylum report of a friend who illegally
entered the United States with him and was found to have a
credible fear of returning to Jamaica, as well as a U.S. travel
advisory recommending that United States citizens not to go to
Carridice’s home parish.
The United States requested a sentence of 46 months, the
top of the Guidelines range. The United States argued that this
sentence was necessary to reflect the gravity of Carridice’s crimes
prior to his re-entry into the United States and to deter Carridice
from committing any further crimes. It further argued that, as a
sentence far below the statutory maximum of 240 months, a 46-
month sentence was not overly harsh and would not create
sentencing disparities.
After a hearing, the district court sentenced Carridice to 42
months in prison and three years of supervised release. The court
noted that it had “considered the statements of all the parties” and
“reviewed the presentence report which contains the advisory
guidelines and the statutory factors as set forth in 18 United States
cod [sic] § 3553(a).” In explaining its reasoning, the court
mentioned that the violence in Carridice’s home parish in Jamaica
was “not of recent vintage” and said that if Carridice had been
trying to flee violence when he first entered the United States, he
would not have brought violence with him. The court spoke
positively about how Carridice spent his time in state prison and
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22-10070 Opinion of the Court 5
remarked that Carridice had “done many good things,” but it also
emphasized that Carridice had “spent a little more than half of his
adult life in prison already.” The court then determined that
neither an upward nor downward variance was appropriate and
picked a sentence in the middle of the Guidelines range. The court
asked Carridice’s counsel if either he or Carridice objected to its
findings of facts or to its procedures for calculating the sentence,
and they did not do so. Carridice now appeals, arguing that his
sentence was procedurally and substantively unreasonable.
II.
This Court reviews the procedural and substantive
reasonableness of a sentence for abuse of discretion.
United States
v. Overstreet, 713 F.3d 627, 636 (11th Cir. 2013). When a defendant
fails to object to the procedures of the sentencing court, the
defendant must show that those procedures were plain error.
United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014).
Under plain error review, the defendant must show (1) an error
occurred; (2) the error was plain; (3) the error affected substantial
rights; and (4) the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings.
United States v. Russell
957 F.3d 1249, 1253 (11th Cir. 2020).
III.
Carridice argues that his sentence was procedurally
unreasonable. He reasons that the district court (1) failed to fully
apply the 18 U.S.C. § 3553(a) factors when it did not depart
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6 Opinion of the Court 22-10070
downward from the Guidelines range based on Carridice’s good
works in prison, his inflated criminal history score, and the
circumstances surrounding his flight from Jamaica;1 and (2)
impermissibly went beyond the record by pointing to Jamaica’s
long history of violence.
We are not persuaded. The district court “is not required to
incant specific language or articulate its consideration of each
individual § 3553(a) factor, so long as the whole record reflects the
district court’s consideration of the § 3553(a) factors.”
United
States v. Cabezas-Montano, 949 F.3d 567, 609 (11th Cir. 2020). This
record indicates that the court considered the § 3553(a) factors. For
one, the court explicitly said that it considered the § 3553(a) factors,
as well as the presentence report and the statements of the parties,
which both in turn relied on the § 3553(a) factors. And looking at
the totality of the court’s reasoning, we are left with the impression
1 The § 3553(a) factors are (1) the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) the need for the sentence
imposed (A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense, (B) to afford adequate
deterrence to criminal conduct, (C) to protect the public from further crimes
of the defendant, and (D) to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the
most effective manner; (3) the kinds of sentences available; (4) the relevant
Guidelines range; (5) any pertinent policy statement issued by the United
States Sentencing Commission; (6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty
of similar conduct; and (7) the need to provide restitution to any victims of the
offense.
See 18 U.S.C. § 3553(a).
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that the court carefully considered both Carridice’s arguments and
the government’s arguments, weighing Carridice’s rehabilitation
and the violence in Jamaica against the serious nature of Carridice’s
crimes to determine that no variance from the Guidelines range
was appropriate. Although the court did not ultimately credit
Carridice’s arguments to the degree that Carridice would have
liked, we see no plain error in the court’s consideration of the §
3553(a) factors.
Nor do we think that the court impermissibly strayed
beyond the record by noting that Carridice’s home parish had been
violent when Carridice first entered the United States. A letter
from a police officer in Carridice’s home parish described the area
as a “hotbed of political and gang violence which span several
decades’ [sic]” and Carridice’s childhood friend described the
violence as “ongoing.” From that record information, an inference
that Carridice’s home parish was violent in the 1990s is not plainly
erroneous.
Carridice also argues that a 42-month sentence was
substantively unreasonable and higher than necessary to meet the
goals of § 3553(a) given his personal circumstances, his
rehabilitation in prison and in Jamaica, and his credible fear of
harm.
For many of the same reasons that we think that the
sentence was procedurally reasonable, we also conclude that
Carridice’s sentence is substantively reasonable. This Court will
vacate a sentence only if we are “left with the definite and firm
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conviction that the district court committed a clear error of
judgment in weighing the § 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) (quotation omitted). And we ordinarily expect sentences
that are within the Guidelines range and well below the statutory
maximum penalty to be substantively reasonable.
United States v.
Stanley, 739 F.3d 633, 656 (11th Cir. 2014).
Here, after weighing all the facts in the case, the court gave
a sentence in the middle of the Guidelines range and far below the
240-month statutory maximum. There is simply nothing in the
record to unsettle our expectation that such a sentence would be
reasonable. The court was well within its discretion to think that
Carridice’s correctly calculated criminal history score more
accurately reflected his criminal record than Carridice’s proposed
downward adjustment. And even though the court seriously
considered Carridice’s rehabilitation and the violence in Jamaica, it
also needed to consider that he was a convicted murderer who had
spent most of his adult life in prison and had just committed a
serious offense. The court did not abuse its discretion when it
balanced these considerations.
* * *
Because Carridice’s sentence was procedurally and
substantively reasonable, we AFFIRM.
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