As Corrected July 28, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Paul J. Barbadoro, U.S. District Judge.
Angela G. Lehman on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and John P. Kacavas, United States Attorney, on brief for appellee.
Before Howard, Chief Judge, Torruella and Selya, Circuit Judges.
TORRUELLA, Circuit Judge.
Appellant Delano Nelson (" Nelson" ) seeks review of his sentence for armed robbery. Finding no reversible error in the proceedings of the district court, we affirm Nelson's sentence.
On October 17, 2011, two men later identified as Nelson and Walter Williams robbed Hannoush Jewelers in Manchester, New Hampshire. Nelson, who had only recently been released from an eighteen-year incarceration for his role in a conspiracy to commit armed robbery in Indiana, entered the store first and took a brochure from an employee. Williams then entered the store, wearing a mask and brandishing a silver handgun. At this point, Nelson jumped over a display counter and ordered a second employee to get down while Williams maintained control of the lobby. Williams ordered the store manager to retrieve the cash from the register. When the manager pressed the alarm button, Williams demanded that the manager turn around and get down on his knees and then struck the manager on the back of his head with the gun. Nelson, meanwhile, ordered an employee to open the display case and access the store's safe. The value of merchandise taken was an estimated $212,332.00.
On November 4, 2011, three men in Halloween masks robbed Kay Jewelers in Tilton, New Hampshire. Williams and Nelson were identified as two of these men. Williams again brandished a silver handgun during the robbery. The total financial loss to Kay Jewelers was $208,297.96.
On May 11, 2012, the government filed a criminal complaint charging Nelson with two counts of interference with commerce by threats or violence, in violation of 18 U.S.C. § 1951(a). On July 20, 2012, Nelson surrendered to the authorities. A two-count indictment followed on August 22, 2012, and Nelson pled guilty to both counts. The Presentence Investigation Report (" PSR" ) calculated a Guidelines range of 97 to 121 months. The government requested an upward variance to 210 months. The district court sentenced Nelson to 168 months in prison.
The court explained that it was " varying upward" because " the nature of the offenses of conviction here are extremely violent robberies . . . the nature of which isn't sufficiently captured by the guidelines itself." The court added, " [T]he defendant's criminal history paints a picture of someone who is substantially more serious than a Criminal History Category II defendant as the guidelines would characterize him." The court was " particularly concerned by the fact that the defendant was most recently incarcerated previously for in part his involvement in a conspiracy to rob a jewelry store, and yet within 11 months . . . he's back involved in multiple jewelry store robberies." The court found that " the fact that his most recent conviction was for a sentence of substantial length, that that did not deter him, suggests that he does need to be removed from society for a substantial period of time to protect society." The court did not impose the sentence of 210 months requested by the government because it believed that Nelson was trying to turn his life around. The court then sentenced him to 168 months' imprisonment and noted that Nelson had a limited right to appeal. This timely appeal followed.
Nelson argues that the district court " procedurally erred when it pronounced a sentence of 168 [months] without adequately explaining the sentence or complying with [U.S.S.G.] § 4A1.3(a)(4)." In this regard, he attempts to make hay of the district court's loose usage of the terms " departure" and " variance." Nelson also contends that the sentence was " substantively unreasonable where the guideline range as calculated by the PSR was 97 - 121 months." According to Nelson, the district court failed to follow U.S.S.G. § 4A1.3 " when it arbitrarily announced a sentence of 168 months which effectively increased ...