20-year Sentence Affirmed Although Defendant Pled Guilty to a Single 924(c) Count

US v. Gantt, 2012 WL 1942085 (10th Cir. May 30, 2012), published. Defendant was charged with felon in possession, brandishing a gun during a crime of violence, and felon in possession of a firearm, all arising out of a bank robbery. He pled guilty to the 18 USC 924(c) count, with the government agreeing to dismiss the other two counts and to recommend a sentence "at the low end of the guideline sentencing range." The relevant guideline for a 924(c) count does not recommend a range, however, but simply sets the statutory minimum sentence, which was 7 years. The judge indicated he would impose a 20-year sentence. Defense counsel objected, and the judge allowed time to respond (although indicating he wouldn't listen). At a second hearing, the judge characterized the 20-year sentence as a variance from the guidelne sentence of 7 years, and declined to change his mind, emphasizing the need to protect the public from the defendant.

The COA rejected defendant's claims that the district court committed both procedural and substantive error. It rejects the first argument that the court failed to adequately explain itself, emphasizing that to preserve a claim that the district court's explanation for its sentence was insufficient, an objection must be made, generally after sentence is imposed, alerting the district court to the inadequacy of its explanation.

It rejects the second claim of procedural error - that the district court failed to consider the guideline sentence - because (again) defendant failed to repeatedly object to the sentence. Even though the defendant argued at the first hearing that there was a recommended guideline sentence, he didn't complain again after the sentence was imposed at the second hearing. His third claim, that the district court didn't consider the unwarranted disparity between the defendant and the codefendant's sentences, was also not preserved. The argument made on appeal is not the one he made below. Even that argument was insufficient. Even though he mentioned the disparity in one of his memoranda, he did not further elaborate and neither defendant nor his counsel complained at the hearing that the court didn't consider the disparity; "[a]n unelaborated snippet cannot preserve an issue for appeal." The fourth claim of procedural error - that the district court failed to consider that the defendant's prior aggravated battery conviction was for an act of self-defense - simply had no merit because he was convicted of aggravated battery. Finally, the sentence of 20 years for brandishing a firearm during a bank robbery was reasonable.