                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4343


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

PETER BLAKE, a/k/a Senator,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:12-cr-00092-WDQ-1)


Submitted:   March 27, 2014                 Decided:   April 8, 2014


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew C. White, SILVERMAN, THOMPSON, SLUTKIN & WHITE, LLC,
Baltimore, Maryland for Appellant. Rod J. Rosenstein, United
States Attorney, Peter M. Nothstein, Stefan D. Cassella,
Assistant United States Attorneys, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Peter     Blake      appeals         from    his    240-month        sentence,

entered    pursuant       to   his    guilty      plea   to    conspiracy       to    commit

murder    and    kidnapping      in    aid     of    racketeering        and   aggravated

re-entry after deportation.              He avers that his sentence, which

constituted an upward variance from the Guidelines range, was

both procedurally and substantively unreasonable.                        We affirm.

            The     presentence        report        (“PSR”)     calculated          Blake’s

Guidelines range to be 360 months.                   The district court granted a

ten-offense-level departure for Blake’s substantial assistance

under U.S. Sentencing Guidelines Manual § 5K1.1 (2012), reducing

Blake’s Guidelines range to 121 to 151 months in prison.                                   The

court then imposed an upward variance sentence of 240 months

based primarily on the gruesome nature of the murder underlying

Blake’s conspiracy charge.

            We     review       sentences        for     reasonableness          “under     a

deferential       abuse-of-discretion             standard.”           Gall    v.     United

States, 552 U.S. 38, 41 (2007).                     This review entails appellate

consideration        of        both    the        procedural       and         substantive

reasonableness of the sentence.                     Id. at 51.           In determining

procedural       reasonableness,        we       consider      whether    the       district

court    properly    calculated        the   defendant’s         advisory      Guidelines

range,    gave     the     parties      an       opportunity      to     argue       for   an

appropriate sentence, considered the 18 U.S.C. § 3553(a) (2012)

                                             2
factors, and sufficiently explained the selected sentence.                         Id.

at 49-51.        If the sentence is free of significant procedural

error, we review it for substantive reasonableness, “tak[ing]

into account the totality of the circumstances.”                  Id. at 51.

              When a district court imposes a sentence that falls

outside of the applicable Guidelines range, we consider “whether

the sentencing court acted reasonably both with respect to its

decision    to   impose    such    a   sentence    and    with    respect    to    the

extent of the divergence from the sentencing range.”                             United

States   v.    Hernandez–Villanueva,         473   F.3d    118,     123   (4th     Cir.

2007).     In conducting this review, we “must give due deference

to the district court’s decision that the § 3553(a) factors, on

a whole, justify the extent of the variance.”                 Gall, 552 U.S. at

51.

              Blake first challenges the procedural aspect of his

sentence on the ground that the district court failed to provide

an    individualized      assessment      when     it     imposed     the    variant

sentence.      “Regardless of whether the district court imposes an

above, below, or within-Guidelines sentence, it must place on

the record an individualized assessment based on the particular

facts of the case before it.”                Carter, 564 F.3d 325, 330 (4th

Cir. 2009) (internal quotation marks omitted).                    The court must

“adequately explain the chosen sentence to allow for meaningful

appellate      review     and     to   promote     the    perception        of    fair

                                         3
sentencing.”      Gall, 552 U.S. at 50.                 An extensive explanation is

not required as long as the appellate court is satisfied “‘that

[the district court] has considered the parties’ arguments and

has    a    reasoned         basis      for       exercising          [its]        own        legal

decisionmaking authority.’”                 United States v. Engle, 592 F.3d

495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551

U.S. 338, 356 (2007)).

            In this case, the court’s reasoning demonstrated that

it    listened    to       and    considered      the    arguments         of   counsel         in

general, reviewed the PSR, and considered the Guidelines range.

The    district           court     clearly       stated        the        basis     of         its

determination,         and   as     such,     even   though         that    basis    was        not

presented    in       a    detailed     manner,         we    conclude        that       it     was

sufficient       to       demonstrate       that     the       court        conducted           the

appropriate review.

            Blake         contends    specifically           that   the     district          court

did not adequately consider the unique and extraordinary nature

of his cooperation.               However, prior to its upward variance, the

court granted the Government’s motion for a ten-level departure

under USSG § 5K1.1 based on Blake’s substantial assistance.                                     The




                                              4
court       thus       explicitly        recognized   Blake’s       cooperation     and

indicated that it was giving Blake a substantial reward. 1

              Contrary to Blake’s arguments, the disputed variance

was based, not on a determination that Blake’s cooperation was

somehow less important or useful than the parties contended, but

rather      on     a    determination       that   the    murder    in     which   Blake

participated was of such a gruesome and violent nature that it

required a sentence above the Guidelines range.                          Blake does not

dispute the district court’s conclusions that the murder was

deserving of greater punishment, that the murder was especially

vile, or that an excessively lenient sentence for such a murder

would       lead       to    societal     cynicism,      which    were     the   reasons

proffered by the district court for its chosen sentence.

              Instead, Blake contends that the district court did

not consider or address: (1) the Government’s decision to allow

Blake to plead guilty to a conspiracy charge, thereby limiting

his exposure to ten years for the murder; (2) the fact that

Blake voluntarily came forward and cooperated against himself;

(3) the district court’s assurance to Blake at his guilty plea

hearing      that       it   had   “no    information”     that    would    lead   to   a

sentence above 135 months; and (4) how a consecutive ten year


        1
       Blake’s final sentence was ten years below the applicable
Guidelines range before the substantial assistance departure.



                                              5
sentence on the re-entry charge was appropriate when that crime

had no factual connection to the murder.

                First, point one cuts both ways.                        The fact that the

Government           cut    a    deal    with    Blake     limiting       his    exposure       was

clearly         a     reward       for     his     cooperation.             As       Blake      was

substantially              rewarded       for     his     cooperation           in    the     plea

agreement,           it     is     unclear       whether      arguing      this       point     at

sentencing would have aided or hindered Blake’s argument for a

still lower sentence. 2                 As this issue is not clearly applicable

to   the    court’s         decisionmaking         and,      in   any   event,       would    have

required speculation, we find that it was not procedural error

to fail to mention the plea deal when imposing sentence.

                As to point two, while the court did not explicitly

note that Blake could have walked away from his decision to

cooperate, this factor was part of the Government’s motion for a

large      substantial            assistance      departure       which    was       granted     in

full.      Regarding point three, while the district court informed

Blake      at       the    Fed.    R.    Crim.    P.    11    hearing      that      it   had    no


      2
       According to Blake, Hubert Downer, his co-conspirator,
pled guilty to a substantive murder offense carrying a maximum
sentence of life in prison. As such, Blake was rewarded for his
cooperation by the structuring of a plea agreement that capped
his total exposure at 30 years as well as a substantial
assistance departure that decreased his sentence to 20 years.
The court also recognized that Blake might benefit from
continued cooperation through a Rule 35 motion.



                                                  6
information that it would impose a sentence above 135 months, 3

Blake was clearly informed that the stipulations of the parties

were       not   binding    and     that     he       could   be    sentenced    up    to     the

statutory maximum.             As such, the court’s statements (which were

not raised by the parties at sentencing as a reason for a lower

sentence) did not impact the statutory factors.

                 Finally,      as    to     point       four,      the   sentence      on    the

aggravated re-entry charge was necessarily increased in order to

reach the district court’s chosen sentence, because the sentence

on the conspiracy count was capped at 120 months.                                    While the

murder       was    unrelated       to     the    aggravated        re-entry,    the        court

properly considered Blake’s offenses and history in light of the

§ 3553       factors      as    a    whole       in     determining       the   appropriate

sentence.          That is, the court was required to consider all the

§ 3553 factors in sentencing Blake on the aggravated re-entry

conviction,         not    simply     the     facts       and      circumstances      of    that

crime.        See United States v. Rhine, 637 F.3d 525, 528-29 (5th

Cir. 2011) (upholding variance sentence over four times longer

than the top of the Guidelines range as procedurally reasonable

when       court     relied     on        unrelated       conduct        as   part     of    the

defendant’s history and characteristics under § 3553).


       3
       The parties initially belied that the Guidelines range
would be 108 to 135 months.



                                                  7
            While    the    court’s      explanation       was    not    lengthy     or

involved, we find that it was sufficient to show that the court

considered the parties’ arguments and had a reasoned basis for

its decision.       In fact, Blake’s primary argument is not that the

court’s reasons are hard to discern but rather that he disagrees

with the court’s conclusion that Blake’s reward for cooperation

needed to be tempered by a greater recognition of and punishment

for the crimes that he had committed.                 This is not a claim of

procedural error, however.             See United States v. Diaz Sanchez,

714 F.3d 289, 295 (5th Cir. 2013) (noting that argument that a

sentence does not account for or gives too much credit to a

particular factor is a claim of substantive unreasonableness).

Accordingly, the court did not commit procedural error.

            Blake next asserts the district court’s imposition of

an   upward      variance     rendered          his   sentence          substantively

unreasonable     because     the       court     failed    to    account      for   his

extraordinary     cooperation.          As     discussed   above,       however,    the

district    court     granted      a    ten-level     departure         for    Blake’s

cooperation, directly addressing the factor that Blake asserts

was ignored.     In subsequently imposing a variance sentence based

upon the extent and type of Blake’s criminal behavior, the court

emphasized the need to not trivialize Blake’s conduct.                          In so

doing,     the   court     noted       Blake’s     past    and    underlined        the

particularly gruesome crime, thus explicitly basing the variance

                                          8
on the history and characteristics of the defendant, as well as

the need to afford adequate deterrence, to protect the public,

and to promote respect for the law, each of which the court

explicitly stated as a basis for its decision.

              Blake avers that the Government made a recommendation

of 135 months on the very same sentencing factors and that the

Government cannot now argue that 240 months is not greater than

necessary to comply with the statutory factors.                                   However, we do

not    review      a    sentence     to    determine            if    it     is    greater       than

necessary; instead, we review a sentence for reasonableness and

an    abuse   of       discretion,       and    more    than         one     sentence       can    be

substantively reasonable.                United States v. Martin, 520 F.3d 87,

92 (1st Cir. 2008) (citation omitted) (“[T]here is not a single

reasonable      sentence          but,     rather,          a        range        of     reasonable

sentences. Consequently, reversal will result if-and only if-the

sentencing      court's      ultimate          determination            falls          outside    the

expansive boundaries of that universe.”).                              Because there is a

range of permissible outcomes for any given case, an appellate

court   must    resist      the    temptation          to   “pick          and    choose”        among

possible      sentences      and     rather         must    “defer           to    the     district

court's judgment so long as it falls within the realm of these

rationally available choices.”                      United States v. McComb, 519

F.3d 1049, 1053 (10th Cir. 2007); see also United States v.



                                                9
Carter, 538 F.3d 784, 790 (7th Cir. 2008) (noting substantive

reasonableness “contemplates a range, not a point”).

                Blake also contends that his co-conspirator Downer’s

identical sentence of 240 months proves that the district court

did not adequately consider the extent of Blake’s cooperation.

Specifically, Blake averred that Downer (who was sentenced after

Blake) was convicted of a charge carrying a maximum sentence of

life imprisonment and did not come forward to cooperate until

after he was apprehended.                Blake argues that he is entitled to a

substantially lesser sentence than Downer and that, if Downer’s

sentence was reasonable, his identical sentence cannot be.

                Blake’s contentions are flawed.                  While he argues that

both his and Downer’s sentences cannot both be reasonable, this

assertion again ignores the fact that, in each case, there is a

range      of   reasonable       sentences.           Blake’s      assertion   that     his

sentence        does     not     fall       within       the    reasonable     range     is

unconvincing.           Blake’s sentence was individually tailored based

primarily upon both his cooperation with authorities and his

participation in a grisly crime.                     The court provided a specific

justification for its upward departure, and Blake was sentenced

to   ten    years       less    than   the    statutory        maximum.      The   court’s

determination           that,     even       in    the     light     of    extraordinary

cooperation,        a    sentence      of    108   (requested       by    Blake)   or   135

months (requested by the Government) was insufficient punishment

                                              10
for   a   particularly    gruesome    and   violent   murder   committed    by

someone with a violent past was not unreasonable.

            Accordingly, we affirm Blake’s sentence.             We dispense

with oral argument because the facts and legal contentions are

adequately    presented    in   the   materials   before   the    court    and

argument would not aid the decisional process.

                                                                    AFFIRMED




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