Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

3-13-2009

USA v. Shamel Shabazz Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1069

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 08-1069

UNITED STATES OF AMERICA,

v.

SHAMEL SHABAZZ,

Appellant.

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. No. 07-cr-00369) District Judge: Hon. R. Barclay Surrick

Submitted under Third Circuit LAR 34.1(a) on February 3, 2009

Before: RENDELL, JORDAN and ROTH, Circuit Judges

(Opinion filed March 13, 2009 ) OPINION

ROTH, Circuit Judge:

Shamel Shabazz appeals the sentence he received for violating

(d) (bank robbery). Shabazz argues his 120-month sentence was procedurally

unreasonable because the District Court departed upward two criminal history categories

and two offense levels without applying the ratcheting procedure. He additionally argues

the sentence was substantively unreasonable. We assume the parties’ familiarity with the

facts and the record of prior proceedings, which we refer to only as necessary to explain

our decision. For the reasons given below, we will affirm the District Court’s judgment

in this matter.1

Shabazz suggests the District Court’s upward departure from a criminal history

category IV to category VI was procedurally improper because the court did not apply the

ratcheting procedure. Ratcheting requires the court to proceed sequentially through the

criminal history categories and “not move to the next category until it has found that a

1 We review the procedural and substantive reasonableness of a sentence for abuse of discretion. See United States v. Levinson,

(3d Cir. 2008); Gall v. United States,

(2007). A sentence “will be upheld as reasonable if the record as a whole reflects rational and meaningful consideration of the factors enumerated in

(a).” United States v. Schweitzer,

(3d Cir. 2006).

2 prior category still fails adequately to reflect the seriousness of the defendant’s history.”

United States v. Cicirello,

(3d Cir. 2002). The ratcheting procedure

“does not require the district court to go through a ritualistic exercise in which it

mechanically discusses each criminal history category it rejects en route to the category

that it selects.” United States v. Harris,

(3d Cir. 1995). The District

Court’s reasons for rejecting each lesser category must “be clear from the record as a

whole.” Harris,

.

The District Court properly applied the ratcheting procedure required to grant an

upward departure. The court found a criminal history category of IV did not adequately

reflect the seriousness of Shabazz’s criminal. In making this assessment, the court

examined the nature and number of Shabazz’s prior convictions and considered the fact

that twelve of his eighteen convictions were not included in his criminal history score

because of the age of the convictions. Acknowledging Shabazz’s drug and alcohol abuse

problems, the court highlighted the fact that from the age of eighteen until his current age,

fifty-two, Shabazz had engaged in criminal conduct on a regular basis. The court also

took into account the effect the bank robbery had on the bank teller who testified at the

sentencing hearing to suffering lasting effects from her encounter with Shabazz.

Collectively, the District Court’s reasons for rejecting categories IV and V are clear from

the record, and Shabazz’s claim that the court improperly applied the ratcheting procedure

must fail.

3 Next, Shabazz contends the District Court procedurally erred by departing upward

two criminal offense levels, from level twenty-two to twenty-four, without applying the

ratcheting procedure. This argument fails because the court applied an upward variance

not an upward departure. Such a variance does not require ratcheting but rather an

analysis of the sentencing factors outlined in

(a). The factors the Court

considered were (1) Shabazz’s history and characteristics, (2) the nature and

circumstances of the offense and the need to reflect the seriousness of the offense, (3) the

need to protect the public from further crimes, (4) the need to afford adequate deterrence

to criminal conduct, and (5) the need to provide Shabazz with substance abuse treatment.

Accordingly, the District Court did not err by applying an upward variance based on these

factors.

Shabazz finally argues his sentence is substantively unreasonable because the

District Court departed upward from a criminal history category of VI, which is only

appropriate in “egregious” circumstances. This argument fails because, as stated

previously, the court did not depart upward from category VI. The court properly

deviated from the Guidelines using a variance. The sentence will be deemed reasonable

if the District Court has “‘set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decision making authority.’” United States v. Lessner,

(3d Cir. 2007)

(quoting Rita v. United States,

(2007)). As discussed above, the

4 District Court appropriately evaluated the § 3553(a) factors and provided an adequate

explanation of the sentence on the record.

For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.

5