United States v. Alexander
517 F.3d 887
6th Cir.
2008
Check Treatment
Docket

*2 The defendant also has a need for sex KENNEDY, MARTIN, Before: that, offender treatment frankly, there is COLE, Circuit Judges.

not enough time to address that with a MARTIN, J., guidelines range delivered the opinion of case, sentence in this court, COLE, J., joined. normally because send we people those KENNEDY, (pp. 890-91), J. Butner, down to delivered a Carolina, North to the separate dissenting opinion. sex offender program treatment down

there, and it takes while get OPINION done ... And with a guideline sentence, there is not enough time left for him to MARTIN, BOYCE F. JR., Circuit get substance abuse treatment and sex Judge. treatment, abuse and he needs that. Defendant-Appellant Wayne Donald Al- pleaded exander guilty to an indictment judge The then sentenced Alexander to him charging with sexual abuse of a minor forty-two months prison and recom- 2243(a). violation of § 18 U.S.C. The mended him for participation in a five- district court departed upward and sen- hundred hour mental health and substance tenced Alexander forty-two months’ im- abuse program. treatment The judge prisonment. Because the district court asked if there were objections, and failed to notice of the variance as both parties in the negative. answered case, In that this Court vacated Cousins’s

II 32(h), violating finding Rule object did Alexander departure plain that the without notice was at variance when asked Id. 581. The error. error was *3 his review sentence sentencing hearing, we clearly to depart because notice of intent is gov review is error. Plain-error plain for 32(h) required by Rule nothing and the 52(b), provides that by Rule erned report parties’ filings or pre-sentence the that affects substantial plain error “[a] any Id. at grounds departure. stated though it may even rights be considered rights The 580. error affected substantial the court’s attention.” brought not to was de- supporting because the evidence the 52(b). a To vacate Fed.R.CRIm.P. parture not irrebuttable and was Cousins (1) error, an error we must find plain per- have an prepared argument could to (3) (2) affects substantial plain, that is judge against departing. suade the Id. at (4) seriously affects the fair rights, and this declined to exer- Finally, Court ness, judi integrity reputation or public find the cise its discretion to that error did Olano, States v. proceedings. cial United fairness, integrity, public not affect the or 725, 732-34, 736, 1770, 113 S.Ct. 507 U.S. reputation judicial proceedings because (internal marks quotation L.Ed.2d 508 123 supporting ... “the evidence the variance omitted). alteration and overwhelming is neither nor uncontrovert- alleges a violation of Rule Alexander ed.” Id. 32(h), which states: present Each these elements is this may depart court from the Before the No an case as well. notice of intent to sentencing range ground on a applicable depart present is in the submissions of the departure either in the not identified for parties pre-sentence report. or the The report party’s pre- or in a presentence to departed upward allow judge sufficient submission, give court must hearing the to in a reha- part time for Alexander take it notice that is parties the reasonable but, no- program, bilitation with advance contemplating departure. a The such tice, presented could evi- Alexander have specify ground must on which notice forty-two that months was dence contemplating departure. court is the Finally, required than to that end. meet 32(h). In States v. Fed.R.CRIm.P. supporting upward depar- the the evidence 32(h) Cousins, held that this Court Rule Alexan- “overwhelming” ture is not since to that deviate from applies all sentences programs argues der that rehabilitation (6th 572, 580 the Guidelines. 469 F.3d forty-two months requiring fewer than .2006). Cir find were to him. We therefore available control- provides find that Cousins We controls, that and we remand this Cousins1 Cousins, this case. ling precedent re-sentencing. case the guidelines district court calculated thirty-seven forty-six to to range be Ill notice, imprisonment. months’ Without court committed forty- district judge departed then Cousins, VA- plain departing upwards, error in we 469 F.3d at 575. eight months. However, (2008). re- Supreme recently L.Ed.2d 625 Cousins Court 1. We note closely granted on a related issue in unless and until certiorari the law of this Circuit mains cert, 1208, Irizarry, 458 F.3d United States Supreme holds otherwise. Court - -, S.Ct. granted, U.S. 169 CATE the sentence REMAND Defendant has identified what oth- sentencing. er sex offender treatment programs would

be him, available to requiring fewer forty-two months for eligibility com- KENNEDY, Judge, Circuit dissenting. pletion, that he could presented agree IWhile with the majority that the district court if notice of its district court’s failure to Defen- intention to impose an upward departure dant Alexander reasonable notice of on ground. more, Without its intention depart from the Guidelines has failed to carry his burden on plain error, was I respectfully dis- error review to show that the district *4 sent with their decision to notice the error court’s error prejudiced the of his outcome as Defendant has not demonstrated that case. this error affects rights. substantial “An To an find effect on substantial rights, on effect substantial rights is typically es- the majority Cousins, relies on tablished through a showing of an actual panel of this Court accepted a similar ar- on effect the outcome case.” United gument, in dicta, where appeared] “it v. Lopez-Medina, 724, 461 F.3d 745 possible least that defense could, counsel (6th Cir.2006). We have recognized, given adequate notice, have prepared addi- though, that it will be the rare defendant tional argument and evidence and thus produce who can evidence that his sen- persuaded the district court that tence would have been different had the guidelines range was appropriate.” 469 district court provided him with advance F.3d at 581. The however, majority, fails notice of its intention to impose upward an to recognize a key distinction between variance. Cousins, United States v. 469 Cousins and the case at hand. In Cous- (6th 572, Cir.2006). F.3d 581 Nonetheless, ins, the district court had failed to explain ultimately is the “[i]t defendant rather its reasoning for imposing the upward var- than the Government who bears the bur- iance; thus, it is understandable that the den of persuasion with respect preju- to panel Cousins did not require the defen- dice.” Olano, United States v. 507 U.S. dant to “how, indicate if given no- proper 725, 734, 1770, 113 S.Ct. 123 L.Ed.2d 508 tice and opportunity comment, to could he (1993). have challenged the information” show present case, Defendant argues prejudice. United States v. Nappi, 243 given that adequate notice he (3d would have F.3d 770 Cir.2001), cited had the opportunity to obtain information approval in United Meeker, States v. 411 and prepare additional argument regard- (6th Cir.2005). F.3d This is un- ing what sentence sufficient, would be but like present ease in which the district greater not than necessary, for the sex court plainly stated its reasons for impos- offender treatment contemplated by the ing variance. To satisfy his court to be completed. Appellant’s See Br. burden on appeal, Defendant should at However, at 12. Defendant does not actu- least how, indicate if given proper notice, ally proffer any such evidence or make he could have challenged the factors relied such argument on appeal. Contrary on by the district court in imposing the majority’s assertion, see Maj. Op. at 888- variance to affect its sentencing decision.1 Instead, appeal, on pres- Government necessary” to ensure that ents evidence demonstrating the district Defendant had the opportunity complete imposed court’s “sufficient, sentence was but sex offender treatment while custody. Ac- identified however, has not Defendant, still claims he arguments of the

the substance notice. proper made if could has not I find show that appeal to on his burden

satisfied failing error court’s

the district his sub- affected notice reasonable to take decline I would rights,

stantial error. of the forfeited

notice *5 EUNGARD, Plaintiff- L.

Scott

Appellant, INC., SOLUTIONS,

OPEN

Defendant-Appellee.

No. 06-2380. Appeals, of States Court Circuit.

Sixth 6, 2008. Feb.

Argued: 26, 2008. Feb. Filed:

Decided participate in eligible to to be month acceptance into the cording criteria for gave Defendant court pro- district program. The treatment offender sex Bureau Prisons which, sentence, if credit than have more cannot 42-month prisoner gram, a served, in his at the outer left placed months Defendant than 18 or less time months FCI program at program. eligible be the treatment eligibility range sentence Butner, light the fact Carolina. imposed 42-month Thus, North appears it custody already been had sufficient, but not was of sentenc- the time at five months about pro- was that Defendant necessary, ensure Defen- had sentenced court district ing, if the com- opportunity greatest vided the Guidelines high end of at dant district treatment offender plete the sex have to would imprisonment, months to 24 he needed. determined court less than one FCI Butner arrived