United States v. Kevin Frankas Riley

U
            USCA11 Case: 19-14013      Date Filed: 04/28/2021   Page: 1 of 18



                                                                          [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 19-14013
                             ________________________

                     D.C. Docket No. 7:19-cr-00098-LSC-GMB-1


UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

versus

KEVIN FRANKAS RILEY,
a.k.a. Chi,
a.k.a. C,

                                                             Defendant-Appellant.
                             ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                    (April 28, 2021)

Before GRANT, TJOFLAT, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

         Kevin Riley pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Based on a string of violent crimes that Riley
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began committing when he was 16 years old, the district court varied upward from

his 12–18 month guidelines range and imposed a 70-month sentence, which is 50

months below his ten-year statutory maximum. Riley contends that the amount of

the upward variance is substantively unreasonable because the court gave his

criminal history too much weight.

                                                 I.

       As part of his written plea agreement, Riley stipulated to these facts. In

November 2018, Alabama law enforcement agents entered Riley’s home in

Northport, Alabama, to arrest him on an outstanding state warrant.1 They found

him in the bedroom, and during the arrest an officer noticed a partially open drawer

in a nightstand. In the drawer, the officer saw in plain view a bag of assorted pills,

a handgun, and a bag of a substance that appeared to be methamphetamine. After

obtaining a warrant, the officers seized the pills, the “suspected

methamphetamine,” the firearm, ammunition, a holster, “suspected” marijuana,

and some “suspected” paraphernalia.2 The firearm was identified as an EAA .357

caliber revolver with a visible serial number.



       1
         Riley’s presentence investigation report states that the arrest warrant was for a charge of
selling methamphetamine, but no toxicology report was available as proof of the chemical
composition of the substance that was sold. The Alabama drug offense charges were still
pending when Riley was sentenced in this case.

       2
         The parties agreed to insert the words “suspected” in the written plea agreement because
no toxicology report was available for the substances recovered during the search. At Riley’s
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       When he possessed that firearm, Riley had already been convicted of a

felony: a drive-by shooting committed when he was 16 years old. As a result, the

discovery of the firearm in his nightstand during his arrest on state drug dealing

charges when he was 35 led to a federal conviction for being a felon in possession

in violation of 18 U.S.C. § 922(g). Those were bookend convictions at the time.

In the nearly two decades between those felony convictions, he had racked up a

stack of other convictions.

       Riley’s presentence investigation report catalogued his criminal history. The

drive-by shooting conviction, which was his first one, resulted in a 5-year prison

sentence for Riley. That sentence was suspended, no doubt because of his age,

when Riley successfully completed a “Regimented Inmate Discipline Program.”

Three years later, when he was 19 years old, Riley was convicted of resisting arrest

and simple assault. He was fined for that offense.

       Unfortunately, Riley’s criminal behavior wasn’t just a teenage phase. It

continued with regularity into his twenties, and after a brief hiatus, beyond. When

he was 21, Riley was charged with aggravated assault and murder, but after those

charges were bound over to a grand jury, they were “no billed.” When Riley was

24, he was convicted of simple assault causing bodily injury. For that he was


sentence hearing, the toxicology reports were still not available, but the government opted to
proceed with sentencing anyway.


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fined, and he paid restitution to the victims he had injured. Just a year later, when

Riley was 25, he was convicted of “[r]esisting or obstruct[ing] arrest/fleeing,” and

possession of drug paraphernalia, and driving under the influence, and reckless

driving. He was fined for those offenses. To close out the decade, when Riley was

29 he was convicted of simple assault causing bodily injury. He was fined yet

again, was ordered to stay away from the victim and the scene of the crime, and

required to pay more than $2,000 “for medical bills.”

      After a span of five years without a conviction, Riley returned to his ways in

his 30s. When he was 34, Riley was convicted of “Simple Assault — Weapon or

Meant to Produce Death.” For that he was fined and “[o]rdered to the public work

program.” The next year, at age 35, Riley was charged with 11 separate state

offenses, including three stemming from the alleged Alabama drug dealing offense

that led to the arrest warrant officers were executing when they discovered the

firearm that led to his § 922(g) conviction in this case.

      Another two of Riley’s pending charges were for possession of a stolen

firearm and possession of a firearm by a felon, both in Mississippi. Riley entered

an intent to plead guilty to those Mississippi charges but then failed to appear to

enter a formal plea because he was in custody in Alabama. The final six pending

charges were for attempted murder and reckless endangerment in Alabama.




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      The PSR in this case includes details about Riley’s life with his family. He

married his wife in 2009 and has three sons, including a 17-year-old from a

previous relationship. Riley’s wife described him as “always the underdog in the

family” and noted that “most of his trouble comes from him stepping up for other

people.” She said he has “a big heart” and is “a great father.” She mentioned that

he was a volunteer coach for his son’s baseball and basketball teams and has a lot

of patience with children. She believed that Riley’s own lack of a father figure

“caused issues” for him, even though he was raised in a loving and caring home.

      The PSR describes Riley’s substance abuse problems. It notes that he used

methamphetamine and that a drug screen indicated he “has relatively severe drug-

related problems.” It also noted Riley’s “interest in drug treatment as he has never

participated in a drug program” and that Riley “explained that his wife was trying

to get him into treatment before his arrest.”

      The PSR calculates a base offense level of 14 for Riley’s felon in possession

offense. It adds four levels because he possessed the firearm in connection with

another felony offense (possession of methamphetamine). After subtracting three

levels for acceptance of responsibility, Riley’s total offense level was 15. His prior

convictions resulted in a criminal history category of II, which combined with his

total offense level gave him a guidelines range of 21–27 months. His statutory

maximum sentence is ten years.

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      Riley objected to the PSR’s “assertion that the substances at issue are what

the [PSR] states they are,” and based on that he objected to the 4-level increase for

possessing a firearm in connection with another felony offense. He also objected

to the PSR’s “characterization of the details” of his prior convictions and pending

charges, noting he did “not agree with or stipulate to” them.

      At the sentence hearing, the government did not have a chemical analysis

report from the state lab to prove the illegality of the substance from Riley’s

alleged drug sale, which was the basis for the state arrest warrant that led to

officers discovering the firearm that resulted in Riley’s conviction in this case.

Nor did the government have a chemical analysis report on the suspected

methamphetamine from Riley’s nightstand drawer, where officers also found the

firearm that resulted in his felon in possession conviction. Still, the government

declined the court’s offer of a continuance and opted to proceed with sentencing.

      The government conceded that the 4-level enhancement for possessing a

firearm in connection with another offense could not apply because of the absence

of evidence that the substance Riley possessed actually was methamphetamine. As

a result, Riley’s objection to that enhancement was sustained, and according to the

court’s calculations, his offense level was 12, his criminal history category was II,

and his resulting guidelines range was 12 to 18 months. There were no objections

to that calculation.

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       The court then asked about Riley’s pending Mississippi charges for

possession of a stolen firearm and possession of a firearm by a felon. Riley’s

counsel noted that Riley had “signed a petition to plead guilty” but “had not yet

appeared in court to consummate that plea” because “he was in custody” for this

case. Riley stipulated that he did possess a stolen firearm in Mississippi “around

the dates” stated in the PSR.

       Riley’s counsel asked for a guidelines sentence. He noted that Riley planned

to contest his pending state charges and that those would be resolved on another

day in another forum,3 though he acknowledged that the court had discretion to

“interplay” those charges with the sentence in this case. He argued that “the

majority” of Riley’s prior convictions were from “when he was a younger man.”

He asked the court to consider that Riley was gainfully employed and that he “has

an excellent support system.” And he emphasized that letters submitted by Riley’s

wife, his brother, and others “indicate there is a lot more to Mr. Riley than what he

has been charged with and what he has been convicted of and accepted

responsibility for in this court.”




       3
          When asked at oral argument, Riley’s appellate counsel stated that there had been
convictions “related to” some of those pending state charges, but counsel did not know any
details about the convictions. She did know that Riley was still in state custody.

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      The government joined Riley’s request for a guidelines sentence because in

the plea agreement it had “committed” to do so, and it noted that a guidelines

sentence would not “be unduly harsh to [him] in any manner, especially in light of

his criminal history.” It pointed out that Riley’s “criminal history starts early and

starts with a drive-by shooting. It continues with resisting arrest, multiple assault

charges.” The government added that “curtailing [Riley]’s access to firearms and

those he might harm with them should be paramount” in the court’s determination

of the sentence. And it asked the court not to run Riley’s federal sentence

concurrently with any eventual sentence on his pending state charges because those

state charges “are wholly unrelated,” “should have their own sentence,” and should

“not be combined” with his federal sentence.

      The court started its sentencing comments by noting that it was “greatly

concerned with [Riley]’s conduct.” It recognized that “his convictions occurred at

a younger age” but said “that would be true for anybody because [defendants] are

always at a younger age if [they] are standing here and already had a conviction.”

The court then recounted Riley’s criminal history, which it had earlier described as

“horrendous,” in detail:

      [L]ong before this particular hearing . . . he committed a drive by
      shooting at age 16, in 1999, in Mississippi. I am just going to run down
      the list. He had a resisting arrest in 2002 [when he was 19]. He had an
      assault in 2002. Another assault . . . at age 24 causing bodily injury on
      that one. In 2008 when he was 25, he had resisting arrest, possession
      of drug paraphernalia, and driving under the influence in Mississippi.
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      In 2012 at age 29 he had another assault causing bodily injury. In 2017,
      he had an assault with a weapon . . . .

      [H]e has an aggravated assault and murder charge that I understand was
      no-billed, so I am not considering that. . . . [H]e had possession of a
      stolen firearm that you just talked about and he admitted, stipulating
      that, in fact, he did possess a stolen firearm. That, again, is in
      Mississippi. In 2018, June of 2018, he was charged with attempted
      murder. And he has not objected to the evidence that he was charged
      with this. Again, there is no conviction or anything, no further entries,
      just that he was charged with that attempted murder on or about June
      22nd of 2018. And then he has the drug charge dealing with this.

      The district court followed its lengthy recitation with these pointed

comments:

      The long and short of it is, Mr. Riley, you are a very violent individual
      that has absolutely no with [sic] respect for the law. You have continued
      to commit violent offenses for a very long time. It is not appropriate for
      you to receive a guideline sentence.

The court imposed a sentence of 70 months, which was 52 months above the top of

the guidelines range, explaining it found that upward variance to be “appropriate”

after considering Riley’s “nature and circumstances” and his “history and

characteristics.” The court specified the sentence would “run consecutive” to any

sentences Riley was serving or would serve and concluded: “I probably should

give you a higher sentence than that but I am not.”

      The court rejected Riley’s request for the sentence to begin running that day,

while he was already in state custody, because the basis for the sentence was

“totally different conduct.” The court emphasized that it did not consider Riley’s

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pending charges for the alleged Alabama drug sale to be connected to this felon in

possession conviction. The court commented that if it had considered those state

charges to be connected to the crime in this case, it would have imposed a sentence

of 120 months to run concurrently “because it would have been relevant conduct.”

The court did, however, agree to modify Riley’s sentence to run concurrent with

any sentence he received on the Mississippi state firearm charges.

      Riley, through his attorney, objected to the upward variance, explaining that

he thought “the extent of it is not reasonable.” He “specifically point[ed] to the

consideration of some of the details of prior offenses” that he had filed “a blanket

objection to,” especially the 2017 conviction. In response to that objection, the

court noted that the 2017 charge itself specified it was an assault “with weapon”

and that Riley had admitted to the charge and the conviction, even if he didn’t

admit to the details of it. The court continued:

      I am making it very clear for the record now, even if that was not there
      and it was just a[n] assault and I had no idea how it occurred, it would
      make no difference in the sentence I gave him. It wouldn’t change the
      sentence. I would have given him the same sentence based upon his
      other conduct. . . .

      The fact of the conviction does make a difference but the . . . details of
      it, do[] not. I would have given the same sentence.

Riley repeated his objection to the reasonableness of “the approximately 300

percent upward variance.”

                                         II.
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      The familiar abuse of discretion standard applies to our review of a district

court’s sentencing decision, and it “allows a range of choice for the district court,

so long as that choice does not constitute a clear error of judgment.” United States

v. Irey, 

612 F.3d 1160

, 1188–89 (11th Cir. 2010) (en banc) (quotation marks

omitted). We have repeatedly recognized that “under the abuse of discretion

standard of review there will be occasions in which we affirm the district court

even though we would have gone the other way had it been our call.”

Id. at 1189

(quotation marks omitted).

      We will vacate a sentence as substantively unreasonable “if, but only 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.”

Id. at 1190

(quotation marks omitted). “A district court’s sentence

need not be the most appropriate one, it need only be a reasonable one. We may set

aside a sentence only if we determine, after giving a full measure of deference to

the sentencing judge, that the sentence imposed truly is unreasonable.”

Id. at 1191.

As the party challenging a sentence, Riley “has the burden of showing that the

sentence is unreasonable in light of the entire record, the § 3553(a) factors, and the

substantial deference afforded sentencing courts.” United States v. Rosales-Bruno,

789 F.3d 1249

, 1256 (11th Cir. 2015). That an upward variance sentence is “well

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below the statutory maximum” indicates that it is reasonable. United States v.

Stanley, 

739 F.3d 633

, 656 (11th Cir. 2014). And the sentence Riley received was

50 months below the statutory maximum of 120 months.

      Riley contends that the district court abused its discretion by imposing too

much of an upward variance, although he doesn’t say how much of one would

have been reasonable. He argues that the court focused almost exclusively on his

criminal history and didn’t consider what he asserts is the “fairly ordinary” nature

of his offense and his positive personal characteristics, including strong family

support and his involvement in his children’s lives. So much weight on his

criminal history, he asserts, equals a substantively unreasonable sentence. Not

necessarily, and not here.

      Section 3553(a) directs sentencing courts to consider, among other things,

“the nature and circumstances of the offense and the history and characteristics of

the defendant.” 18 U.S.C. § 3553(a)(1). It emphasizes the need for sentences “to

reflect the seriousness of the offense, to promote respect for the law,” “to provide

just punishment for the offense,” “to afford adequate deterrence to criminal

conduct,” and “to protect the public from further crimes of the defendant.”

Id.

§ 3553(a)(2). “A

sentencing court is not required to incant the specific language

used in the guidelines or articulate its consideration of each individual § 3553(a)

factor, so long as the record reflects the court’s consideration of many of those

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factors.” United States v. Ghertler, 

605 F.3d 1256

, 1262 (11th Cir. 2010)

(quotation marks omitted). “The weight to be accorded any given § 3553(a) factor

is a matter committed to the sound discretion of the district court,” United States v.

Clay, 

483 F.3d 739

, 743 (11th Cir. 2007) (quotation marks omitted), and the court

“is permitted to attach ‘great weight’ to one factor over others,” United States v.

Shaw, 

560 F.3d 1230

, 1237 (11th Cir. 2009) (quoting Gall v. United States, 

552

U.S. 38

, 57 (2007)). That is what discretion in weighing factors is about.

      And discretion in weighing sentencing factors is particularly pronounced

when it comes to weighing criminal history. Courts “have broad leeway in

deciding how much weight to give to prior crimes the defendant has committed,”

Rosales-Bruno, 789 F.3d at 1261

, and “[p]lacing substantial weight on a

defendant’s criminal record is entirely consistent with § 3553(a) because five of

the factors it requires a court to consider are related to criminal history,”

id. at 1263

(citing the factors listed above). “Under substantive reasonableness review, we

have repeatedly affirmed sentences that included major upward variances from the

guidelines for defendants with significant criminal histories that the sentencing

courts weighed heavily.”

Id. (affirming an upward

variance to 87 months from a

guidelines range of 21–27 months); see also, e.g., United States v. Overstreet, 

713

F.3d 627

, 634, 636–40 (11th Cir. 2013) (affirming an upward variance to 420

months from a guidelines range of 180–210 months); United States v. Early, 686

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18

F.3d 1219

, 1221–22 (11th Cir. 2012) (affirming an upward variance to 210 months

from a guidelines range of 78–97 months); 

Shaw, 560 F.3d at 1237

–41 (affirming

an upward variance to the statutory maximum of 120 months from a guidelines

range of 30–37 months). We have also affirmed upward variances where courts

gave weight to a defendant’s recent surge of criminal activity. See United States v.

Johnson, 

803 F.3d 610

, 618–20 (11th Cir. 2015) (affirming an upward variance to

102 months from a guidelines range of 70–87 months and noting the court

“reasonably found” the guidelines range “understated the seriousness” of the

defendant’s “recent criminal history”).

      Some characteristics of criminal history are especially significant: how bad

a repeat offender a defendant is matters greatly for purposes of sentencing. We

have affirmed a sentence in which “recidivism was the single most important

factor in the court’s decision to vary upward,” 

Shaw, 560 F.3d at 1239

–40, and we

have recognized the “Supreme Court has consistently affirmed the imposition of

longer sentences, even for non-violent offenses, based on an offender’s

recidivism,” United States v. Lyons, 

403 F.3d 1248

, 1256–57 (11th Cir. 2005); see

also Ewing v. California, 

538 U.S. 11

, 18–20, 30–31 (2003) (affirming a 25-year to

life sentence given to recidivist who stole 3 golf clubs priced at $399 each); Hutto

v. Davis, 

454 U.S. 370

, 371, 372 n.1, 374–75 (1982) (concluding that two

consecutive sentences of 20 years each given to recidivist for possessing 9 ounces

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of marijuana with the intent to distribute it and for distribution of marijuana do not

violate the Eighth Amendment); Rummel v. Estelle, 

445 U.S. 263

, 265–67 (1980)

(affirming life sentence with the possibility of parole imposed upon recidivist who

“obtain[ed] $120.75 by false pretenses”).

      Violent offenders are often good candidates for upward variances. Recent

research from the United States Sentencing Commission shows that “offenders

who engaged in violent criminal activity—whether during [their] instant federal

offense or as part of prior criminal conduct—generally recidivated at a higher rate,

more quickly, and for more serious crimes than non-violent offenders.” U.S.

Sent’g Comm’n, Recidivism Among Federal Violent Offenders 3 (2019). Add

firearms to the calculus, and the risk goes from addition to multiplication.

“Firearms offenders generally recidivated at a higher rate, recidivated more quickly

following release into the community, and continued to recidivate later in life than

non-firearms offenders.” See U.S. Sent’g Comm’n, Recidivism Among Federal

Firearms Offenders 4 (2019). When considering the prior convictions of a

defendant who has repeatedly engaged in violence and crimes involving firearms,

it is eminently reasonable for a district court to weigh that criminal history heavily

in the sentencing decision. See 18 U.S.C. § 3553(a); 

Johnson, 803 F.3d at 613

–14,

619 (noting the defendant’s string of violent armed robberies and “long criminal




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history involving firearms”); 

Rosales-Bruno, 789 F.3d at 1263

(listing decisions

affirming major upward variances based on criminal history).



                                          III.

      Even if we accept Riley’s contention that the district court focused almost

exclusively on his criminal history when crafting his sentence, we cannot conclude

the court gave that history an unreasonable amount of weight. As we have

explained, the court had “broad leeway” to calculate that weight. 

Rosales-Bruno,

789 F.3d at 1261

. And when a court chooses to give “substantial weight” to a

defendant’s criminal record, that choice is “entirely consistent with § 3553(a)”

because five of that section’s factors are related to criminal history.

Id. at 1263.

      A defendant’s criminal history tells a sentencing court, among other things,

whether he is a repeat offender, a violent one, or one likely to use firearms. If he is

a recidivist, the court may correctly conclude that previous punishment for

criminal conduct failed to deter him and that a harsher sentence is warranted. If his

crimes have involved violence or firearms, a court may correctly conclude that a

stronger sentence is necessary to protect the public from his future crimes, which

research has shown are likely to occur more often, more quickly, and with more

damage done. See U.S. Sent’g Comm’n, Recidivism Among Federal Violent




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Offenders 3 (2019); U.S. Sent’g Comm’n, Recidivism Among Federal Firearms

Offenders 4 (2019).

      A court that weighs heavily a defendant’s criminal history has acted within

its discretion, even when it does not recite specific guidelines language or tick off

every § 3553(a) factor. See 

Ghertler, 605 F.3d at 1262

. And here the district court

did highlight some of its § 3553(a) considerations, referring to Riley’s “nature and

circumstances,” his “history and characteristics,” and his lack of “respect for the

law.” And, as we have mentioned, an additional sign of the upward variance’s

reasonableness is the fact that Riley’s 70-month sentence is more than 4 years

below his 10-year statutory maximum. See 

Stanley, 739 F.3d at 656

.

      When Riley was sentenced as a felon in possession of a firearm, he had

already been convicted of at least five separate violent crimes. In fact, since he

was old enough to drive, he has never gone more than five years without being

convicted of one. Violent crime may not be his vocation, but it is at least his

avocation. And here it came coupled with a current conviction for a firearm

offense and an admission that he had committed another firearm offense less than a

year earlier. See 

Johnson, 803 F.3d at 618

–20 (giving weight to a defendant’s

significant recent criminal history). That’s enough to support the court’s

conclusion that Riley is “a very violent” person who has “absolutely no . . . respect

for the law.” The 70-month sentence the court gave him is not unreasonable.

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AFFIRMED.




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