United States v. Deandre Anthony

U
                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-3532
                        ___________________________

                            United States of America

                                      Plaintiff - Appellee

                                        v.

                                Deandre Anthony

                                   Defendant - Appellant
                                 ____________

                    Appeal from United States District Court
                  for the Southern District of Iowa - Davenport
                                 ____________

                         Submitted: September 21, 2020
                             Filed: November 17, 2020
                                [Unpublished]
                                ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                        ____________

PER CURIAM.

      Deandre Anthony pleaded guilty to one count of conspiring to distribute
methamphetamine. The district court 1 sentenced Anthony to 280 months’
imprisonment. Anthony appeals, challenging his sentence as procedurally defective

      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
and substantively unreasonable, primarily because he received a higher sentence
than his codefendants. We affirm.

       Anthony pleaded guilty to conspiring to distribute methamphetamine (Count
1 of the indictment). His three codefendants also pleaded guilty to Count 1. After
hearing testimony at Anthony’s sentencing hearing, the district court increased
Anthony’s offense level by three levels after finding that he was a manager or
supervisor in the conspiracy, U.S.S.G. § 3B1.1(b), yielding an advisory sentencing
guidelines range of 360 months’ to life imprisonment. The court then sentenced
Anthony to 280 months’ imprisonment—eighty months below the bottom end of his
guidelines range. Although Anthony’s codefendants also received sentences below
their guidelines ranges, they received lower sentences than Anthony with respect to
Count 1. Two received 120 months’ imprisonment, and one received 150 months’
imprisonment.

       On appeal, Anthony claims that his sentence is both procedurally flawed and
substantively unreasonable. He claims that the district court erred procedurally by
failing to consider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar conduct,” see
18 U.S.C. § 3553(a)(6), and by failing to explain how it considered § 3553(a)(6).
Anthony also claims that these unwarranted sentencing disparities make his sentence
substantively unreasonable.

       We review a sentence imposed by “first ensur[ing] that the district court
committed no significant procedural error.” Gall v. United States, 

552 U.S. 38

, 51
(2007). Procedural errors include, among other things, failure to consider the
§ 3553(a) factors, including § 3553(a)(6).

Id. “In reviewing a

sentence for
significant procedural error, we review a district court’s factual findings for clear
error and its interpretation and application of the guidelines de novo.” United States
v. Kirlin, 

859 F.3d 539

, 543 (8th Cir. 2017).




                                        -2-
       Section 3553(a)(6) requires the district court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” Anthony argues that the district court violated
§ 3553(a)(6) because: (1) he received an offense-level enhancement for being a
manager or supervisor of criminal activity, but his codefendant did not despite
testimony that they had the same role in the conspiracy; 2 (2) the district court
departed or varied downward from the guidelines range by a smaller percentage for
Anthony than for his codefendants; (3) the district court varied or departed
downward based on an ice-methamphetamine policy dispute less for Anthony than
for his codefendants; and (4) the district court failed to state how it considered
§ 3553(a)(6).

       Here, the district court did not procedurally err because § 3553(a)(6) “refers
to national disparities, not differences among co-conspirators.” United States v. Fry,

792 F.3d 884

, 892 (8th Cir. 2015); see also United States v. Pierre, 

870 F.3d 845

,
850 (8th Cir. 2017); United States v. Hemsher, 

893 F.3d 525

, 535 (8th Cir. 2018).3
Because all of Anthony’s arguments regarding sentencing disparity concern his
codefendants, the district court did not procedurally err. In any event, Anthony’s
codefendants are not similarly situated to him because, among other things, they
cooperated with the Government. See United States v. Chaika, 

695 F.3d 741

, 746



      2
       Anthony does not challenge his guidelines calculation on appeal. Therefore,
any objections to it are waived. See United States v. Grace, 

893 F.3d 522

, 525 (8th
Cir. 2018) (“Issues not raised in a party’s opening brief are waived.”).
      3
        Though “[t]his court once granted relief based on a comparison of co-
conspirators, . . . that decision is necessarily limited to the unusual circumstances
presented there: an extreme disparity in sentencing between similarly situated
conspirators, and a consolidated appeal involving both conspirators that permitted a
remand for resentencing of both parties.” 

Fry, 792 F.3d at 892-93

(limiting United
States v. Lazenby, 

439 F.3d 928

(8th Cir. 2006), to its facts) (internal quotation marks
omitted).


                                         -3-
(8th Cir. 2012) (“A defendant’s cooperation with the government is a legitimate
basis for sentencing disparity.”).

       The district court also was not required to explain specifically how it
considered § 3553(a)(6). A court’s statement that it has taken all the § 3553(a)
factors into consideration—without listing each—is enough to demonstrate that it
considered all the factors. 

Kirlin, 859 F.3d at 545

. Here, the court did more by
expressly stating that it “considered the need to avoid unwarranted sentencing
disparity among defendants with similar records who have been found guilty of
similar conduct.” Therefore, we find no procedural error.

       Anthony claims that his sentence was substantively unreasonable on the same
bases on which he claims procedural error. None of these claims has merit either.
We “consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” 

Gall, 552 U.S. at 51

. “When conducting this
review,” we “take into account the totality of the circumstances, including the extent
of any variance from the [g]uidelines range.”

Id. “A sentencing court

abuses its
discretion if it fails to consider a relevant factor that should have received significant
weight, gives significant weight to an improper or irrelevant factor, or considers only
the appropriate factors but commits a clear error of judgment in weighing those
factors.” United States v. Johnson, 

812 F.3d 714

, 715 (8th Cir. 2016) (per curiam).
However, “[w]hen a district court has sentenced a defendant below the advisory
[g]uidelines range, it is nearly inconceivable that the court abused its discretion in
not varying downward still further.” United States v. Nevatt, 

960 F.3d 1015

, 1022
(8th Cir. 2020) (per curiam).

       “Sentencing courts have wide discretion to weigh the § 3553(a) factors.”
United States v. Donahue, 

959 F.3d 864

, 867 (8th Cir. 2020) (internal brackets and
ellipses omitted). Anthony was sentenced below the guidelines range, making it
nearly inconceivable that the district court abused its discretion by imposing a
substantively unreasonable sentence. See 

Nevatt, 960 F.3d at 1022

. After reviewing



                                          -4-
the record, we conclude that the district court did not abuse its discretion in
sentencing Anthony.

      Therefore, Anthony’s sentence is neither procedurally flawed nor
substantively unreasonable. We affirm.
                       _____________________________




                                     -5-

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