                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 09-1010
                                    _____________

                          UNITED STATES OF AMERICA

                                           v.

                                 LACY J. GOGGANS,

                                         Appellant.
                                   ______________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D.C. No. 02-cr-320-1)
                       District Judge: Hon. Anne E. Thompson
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 13, 2010

       Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.

                                 (Filed: July 14, 2010)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Lacy Goggans appeals from a judgment of the United States District Court for the

District of New Jersey sentencing him to 492 months of imprisonment, which is a

significant downward variance from the bottom of the sentencing range prescribed by the
United States Sentencing Guidelines. Goggans’s sole argument on appeal is that his

sentence is substantively unreasonable because the Court should have granted an even

larger downward variance in light of his familial circumstances, his purported

rehabilitative efforts, and his allegedly minor role in the crimes for which he was

convicted. We disagree with that argument and will therefore affirm the sentence

imposed by the District Court.

I.     Background

       This case is before us on appeal for the second time. Goggans and three co-

defendants – Ronald Blackwell, Trenell Coleman, and Ryan Washington – were indicted

for various offenses relating to nine violent bank robberies perpetrated between

December 2000 and April 2002, and the attempted robbery of a tenth bank. In a prior

opinion, we affirmed Goggans’s convictions, after a jury trial, for conspiracy to commit

bank robberies in violation of 18 U.S.C. § 1951; attempted bank robbery in violation of

18 U.S.C. § 2113(a); two counts of using and carrying a firearm during and in relation to

a crime of violence in violation of 18 U.S.C. § 924(c); and one count of being a felon-in-

possession in violation of 18 U.S.C. § 922(g). United States v. Goggans, 257 F. App’x

515, 517 (3d Cir. 2007). We likewise affirmed his co-defendants’ convictions for the

same offenses. Id.

       The District Court initially sentenced Goggans to 594 months of imprisonment,

which included two mandatory consecutive sentences on the § 924(c) convictions – a 7-


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year sentence for using and carrying a firearm in the course of the conspiracy and a 25-

year sentence for using and carrying a firearm in the course of the attempted robbery. We

vacated and remanded for resentencing on the conspiracy, attempted bank robbery, and

felon-in-possession convictions because the District Court treated the United States

Sentencing Guidelines as mandatory, in violation of United States v. Booker, 543 U.S.

220 (2005). Goggans, 257 F. App’x at 517-18. However, we affirmed the District

Court’s imposition of the mandatory minimum consecutive sentences on the two § 924(c)

convictions.1 Id. at 518.

         On remand, an updated presentence report (“PSR”) was prepared, which included

a recommended Guidelines calculation with a sentencing range of 210 to 266 months

based upon an offense level of 33 and a criminal history category of V.2 Accounting for

the mandatory consecutive sentences on the two § 924(c) counts, the range rose to 594 to

650 months. Despite our earlier ruling, Goggans argued at resentencing that his sentences

on the § 924(c) convictions should run concurrently with his Guidelines sentence. He

requested a total sentence of 210 months – the bottom end of the Guidelines range

without regard to the § 924(c) crimes – which he believed was appropriate in light of his



  1
   We similarly remanded Washington, Coleman, and Blackwell’s cases for resentencing
on the conspiracy and attempted bank robbery convictions and, where applicable, any
felon-in-possession convictions, but affirmed their sentences on the § 924(c) convictions.
Goggans, 257 F. App’x at 517-18.
  2
      Goggans does not challenge the calculation of his Guidelines range.


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rehabilitative efforts while incarcerated, including taking a real estate course, and the fact

that he has several children who rely on him.

       In assessing the relevant factors pursuant to 18 U.S.C. § 3553(a), the Court

specifically acknowledged the seriousness of the offense, focusing on the need to protect

society from violent criminals like Goggans. However, the Court expressed its intent to

vary below the Guidelines range because it viewed the total overall sentence as

unnecessarily harsh due to the impact of the mandatory consecutive sentences. The Court

also stated that it would give Goggans a higher sentence than his co-defendants, all of

whom received sentences of 444 months after remand, based on its conclusion that

Goggans “was more of a leader than the others.” (App. at 33.) Ultimately, the Court

sentenced Goggans to a total of 492 months of imprisonment, including the mandatory

consecutive sentences, in addition to supervised release and restitution. Goggans timely

appealed.

II.    Discussion 3

       Goggans’s sole argument on appeal is that his 492-month sentence is substantively

unreasonable and that the District Court should have granted an even larger downward

variance.4 Since Goggans does not argue that his sentence is procedurally unreasonable,

  3
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction over Goggans’s appeal pursuant to 18 U.S.C. § 3742(a).
  4
   Goggans uses the term “downward departure” in his brief, but it appears that he is
really referring to a downward variance. As we have explained, “[d]epartures are
enhancements of, or subtractions from, a guidelines calculation ‘based on a specific

                                              4
we will confine our review to substantive reasonableness, which Goggans bears the

burden of challenging. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en

banc) (“[T]he party challenging the sentence has the burden of demonstrating

unreasonableness.”). Review for substantive reasonableness requires a “totality of the

circumstances” approach, pursuant to which we accord great deference to the district

court’s “determination that the § 3553(a) factors, on a whole, justify the sentence.” Id. at

567-68 (quotations omitted). Accordingly, “we will affirm [a sentence] unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Id. at 568; see also United States v.

Levinson, 543 F.3d 190, 195 (3d Cir. 2008) (noting that the abuse of discretion standard

“gives district courts broad latitude in sentencing”).

       Goggans points to several factors that he believes warrant a lesser sentence: his

three children; his rehabilitative efforts while incarcerated, including taking a real estate




Guidelines departure provision.’” United States v. Brown, 578 F.3d 221, 225 (3d Cir.
2009) (quoting United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006)).
A departure requires “a motion by the requesting party and an express ruling by the
court.” Id. “Variances, in contrast, are discretionary changes to a guidelines sentencing
range based on a judge’s review of all the § 3553(a) factors ... .” Id. at 226. Goggans
does not identify any particular provision of the Guidelines that warrants a departure and
instead argues that the District Court should have granted him a lesser sentence because
of certain factors impacting the § 3553(a) analysis. Thus, we conclude that he is making
an argument that he should have received a downward variance, not a downward
departure.

                                              5
class and working as an orderly;5 his self-described minor role in the bank robberies; and

his co-defendants’ lesser sentences. The District Court, which presided at the lengthy

trial of this case and which is intimately familiar with the facts, concluded that Goggans

played a leadership role in orchestrating the robberies at issue. The Court recognized that

Goggans was incarcerated during two of the nine robberies, as he points out, but

apparently found that fact to be immaterial since the conspiracy involved “an overall

string” of nine bank robberies and an attempted tenth robbery. (App. at 30.) In addition,

while Goggans points out that he was not observed inside the banks, that does not mean

that he did not play a leadership role in the conspiracy. Indeed, the District Court

observed that Goggans’s “distancing himself from the most vulnerable position of going

inside the bank and brandishing the weapons” revealed that he was the more sophisticated

defendant of the group. (App. at 33.) That is not an unreasonable conclusion. Thus, it

was not an abuse of discretion for the Court to impose a greater sentence on Goggans

than his co-defendants, in recognition of that role. See United States v. Parker, 462 F.3d

273, 277-78 (3d Cir. 2006) (holding that district court’s differential sentencing of co-

defendants was reasonable because co-defendants were not similarly situated).




  5
    Despite Goggans’s assertion that he has been “working very hard to rehabilitate
himself” while he has been incarcerated (Appellant’s Op. Br. at 15), the PSR reveals that
Goggans was punished in prison for four incidents, including an assault with serious
injury and possession of a dangerous weapon.

                                             6
       Our review reveals that the District Court engaged in a careful and appropriate

analysis of the § 3553(a) factors and properly concluded that a lengthy sentence was

warranted in light of the violent nature of the offense and the need to protect society,

given Goggans’s substantial criminal history. In fact, the District Court exhibited

considerable leniency, granting Goggans a 102-month downward variance to avoid an

even greater sentence. Goggans’s disagreement with the extent of the Court’s variance is

insufficient to show that the Court abused its discretion. See United States v. Bungar, 478

F.3d 540, 546 (3d Cir. 2007) (“Nor do we find that a district court’s failure to give

mitigating factors the weight a defendant contends they deserve renders the sentence

unreasonable.”).

III.   Conclusion

       We conclude that the sentence imposed by the District Court is reasonable and we

will therefore affirm the Court’s judgment.




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