420 F. App'x 546
6th Cir.2011Background
- Worex pleaded guilty to one count of unlawful possession of firearms and ammunition by a convicted felon under 18 U.S.C. § 922(g)(1).
- The district court sentenced her to 48 months’ imprisonment, above the Guidelines range of 18–24 months.
- The PSR recommended the 18–24 month range based on total offense level and criminal history, with potential related state charges mentioned for July 2009.
- The court based the upward variance on uncharged conduct related to shootings in Greene County, Tennessee, not proven by a preponderance of the evidence.
- Moore, co-defendant, received a downward sentence (time served) after cooperation; Worex’s sentence was challenged as substantively unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether upward variance based on uncharged conduct was proper | Worex argues uncharged conduct not proven by preponderance cannot support enhancement. | The government contends that advisory Guidelines allow considering such facts post-Booker. | Abuse of discretion; district court failed to make preponderance findings before increasing sentence. |
| Whether disparity with co-defendant renders sentence unreasonable | Worex claims 48 months is unjust given Moore received time served. | Respondent argues §3553(a)(6) disparities may arise from legitimate factors like cooperation and differing circumstances. | Not reversible; defendants were not similarly situated due to cooperation and downward departure for Moore. |
Key Cases Cited
- United States v. Haj-Hamed, 549 F.3d 1020 (6th Cir. 2008) (allowing consideration of uncharged conduct with preponderance findings)
- United States v. Mendez, 498 F.3d 423 (6th Cir. 2007) (acquitted or uncharged conduct may be considered at sentencing under certain standards)
- United States v. White, 551 F.3d 381 (6th Cir. 2008) (en banc; preponderance standard for enhancements but within statutory maximum)
- United States v. Gall, 552 U.S. 38 (2007) (standard of reviewing sentence for reasonableness under 18 U.S.C. § 3553(a))
- United States v. Simmons, 501 F.3d 620 (6th Cir. 2007) (disparities among codefendants not the same as national disparities; §3553(a)(6) considerations)
- United States v. Olds, 309 F. App’x 967 (6th Cir. 2009) (disparities between codefendants can be justified by legitimate differences)
- United States v. Sexton, 512 F.3d 326 (6th Cir. 2008) (recognizes preponderance standard for certain sentencing findings)