Appeal from the United States District Court for the Central District of California D.C. No. 8:07-cr-00087- AHS-1 Alicemarie H. Stotler, Senior District Judge, Presiding
The opinion of the court was delivered by: Ikuta, Circuit Judge:
March 9, 2011-Pasadena, California
Before: Pamela Ann Rymer, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.
Defendant Kevin Ellis appeals his sentence for seven counts of bank robbery. He argues that his sentence must be vacated and the case remanded for resentencing because the government breached the plea agreement, the district court's decision to make an upward departure from criminal history category II to III, see USSG § 4A1.3, was procedurally erroneous, and the district court's overall sentence was substantively unreasonable. We hold that the government did not breach the plea agreement. Further, applying the reasoning in United States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006), we hold that we review upward departures under § 4A1.3 for substantive reasonableness, not for procedural error, and conclude that the district court's sentence was substantively reasonable and any procedural error was harmless.
During the period from November 29, 2006 to May 3, 2007, Ellis committed seven bank robberies. Dressed in dark sunglasses, a white dress shirt, a tie, and a dark colored fedora, Ellis would approach one or two tellers and, either showing or pointing a simulated hand gun, would demand they hand over their money. In some cases, Ellis would pass the teller a note. (On February 3, 2007, for example, the note read, "I have a gun!! I will shoot you!!") Ellis would then place the money into a bag and exit the bank. During his fifth robbery, on March 6, 2007, Ellis instructed three employees to get into a closet while he exited the bank. And after the seventh robbery, on May 3, 2007, he led police on a high-speed chase, which ended with officers using a Pursuit Intervention Technique maneuver (a maneuver which forces the suspect's vehicle to abruptly turn sideways to the direction of travel). Police officers subsequently apprehended Ellis, who thereafter admitted to committing the seven robberies.
Ellis was charged in a seven-count indictment, each count relating to one of the seven bank robberies. On June 1, 2009, Ellis pleaded guilty to all seven counts pursuant to a plea agreement with the government. As explained in greater detail below, paragraph 14 of the plea agreement set forth the key terms relevant to this appeal. The parties' calculations of the base offense level and specific adjustments for the seven counts resulted in a total offense level of 29. The paragraph also stated that Ellis and the government "agree to not argue for application of any specific offense characteristic or adjustment other than those stipulated to above." The government promised not to make a motion "for an upward departure as to defendant's offense level," but reserved "the right to argue for an upward criminal history departure of up to Criminal History Category IV," and "the right under Booker to argue for a sentence of up to the high-end of the Guidelines range for Offense Level 29 and Criminal History Category IV," i.e., 151 months.*fn1
The presentence report (PSR) noted the plea agreement's offense level calculation and provided its own, also resulting in a total offense level of 29. The PSR included details of Ellis's criminal history. Prior to the seven bank robberies at issue here, Ellis had been convicted of two criminal offenses. At age 16, he and another defendant used a pistol to rob two victims. Ellis was convicted of two counts of armed robbery and was sentenced to five years in state prison on each count, to be served concurrently. At age 28, he was convicted of forcible rape. According to the police report, Ellis grabbed a woman from behind, beat her with his fists, and forced the victim to have oral sex and intercourse with him. Ellis was sentenced to 75 months in state prison for this offense. In addition, the PSR indicated that Ellis had a troubled childhood and had been subject to physical and verbal abuse. It also stated that after his release from prison, Ellis became addicted to gambling and suffered economic losses which led to his bank robbery spree.
After Ellis and the government submitted a first set of briefs in response to the PSR, the government filed a supplemental sentencing brief, which Ellis claimed constituted a breach of the plea agreement. (The plea agreement, as well as the parties' sentencing briefs, are described in more detail below.) On December 14, 2009, the district court rejected Ellis's claim of breach, and exercised its discretion to impose an above-Guidelines sentence.
On appeal, Ellis argues that his sentence must be vacated for two reasons: first, the government breached the plea agreement; and second, the sentence imposed by the district court was procedurally incorrect and substantively unreasonable under 18 U.S.C. § 3553(a).
In order to evaluate Ellis's arguments, we must first examine how the Guidelines apply to Ellis's offenses, and the differences between the offense level calculations in the PSR and those agreed to by the parties in the plea agreement.
The calculation of the Guidelines range is a crucial first step in the sentencing process. Even though the Guidelines are advisory, they are still the "starting point and the initial benchmark" for the sentencing process, Kimbrough v. United States, 552 U.S. 85, 108 (2007) (quoting Gall v. United States, 552 U.S. 38, 49 (2007)) (internal quotation marks omitted), and an appellate court "must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range," Gall, 552 U.S. at 51. If the district court makes a procedural error, then the ordinary course is to vacate and remand. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011) (explaining that harmless error in Guidelines calculations is rare), vacating 621 F.3d 967 (9th Cir. 2010). "Assuming that ...