UNITED STATES of America, Plaintiff-Appellee, v. Bernard Chester WEBB, Defendant-Appellant.
No. 03-6110.
United States Court of Appeals, Sixth Circuit.
Submitted: Dec. 10, 2004. Decided and Filed: April 6, 2005.
397 F.3d 373
[REDACTED] We employ a two-part test in reviewing claims of prosecutorial misconduct based upon improper statements. United States v. Galloway, 316 F.3d 624, 632 (6th Cir.2003). First, we determine whether the remarks were improper. Id. Second, if we find any statements to have been improper, we determine whether they were so flagrant as to warrant reversal. Id. In considering whether statements are so flagrant to warrant reversal, we apply the following factors: 1) whether the statements tended to mislead the jury and prejudice the defendant; 2) whether the statements were isolated or pervasive; 3) whether the statements were deliberately placed before the jury; and 4) whether the evidence against the defendant was strong. Id.
The Assistant U.S. Attorney‘s statements were not improper. Rather, he simply made the point that premeditation does not require extensive planning; the Defendant could have formed the intent to murder at any time. In any event, even if they were improper, they were clearly not flagrant. Not only was the evidence against the Defendant strong and the alleged improper statements isolated, but also the district court cured any arguable impropriety by variously admonishing the jurors that what the lawyers said was not the law and that they should only listen to the court‘s instructions regarding the distinction between first and second degree murder.
IV. For the foregoing reasons, we AFFIRM the Defendant‘s conviction.
Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.
OPINION
MOORE, Circuit Judge.
Defendant-Appellant Bernard Chester Webb (“Webb“) appeals his criminal conviction and sentence in district court for possession of a machine gun in violation of
For the reasons discussed below, we AFFIRM the district court‘s judgment.
On December 16, 2000, Webb was riding in a car which was stopped by Corbin, Kentucky police officers. The car‘s driver consented to a search of the car. While executing a search of the car, the officers discovered a Sten Model Mk5, nine-millimeter machine gun in Webb‘s duffel bag. Webb was then charged by information with knowing possession of a machine gun in violation of
Webb entered into a plea agreement with the government under which he agreed to plead guilty to violating
- Pursuant to
§ 2K2.1(a)(3) , the base offense level is 22[.] Pursuant to§ 2K2.1(b)(3) , 3 levels are added in that the offense involved a destructive device. Pursuant to[§] 2K2.1(b)(4) , 2 levels are added in that the firearm was stolen. - Pursuant to
§ 3E1.1(a) , decrease the base offense level by 3 levels for the Defendant‘s acceptance of responsibility. Joint Appendix (“J.A.“) at 18 (Plea Agreement at 2). The defendant explicitly agreed to make the same recommendations at sentencing. J.A. at 18 (Plea Agreement at 2). Additionally, the plea agreement stated that the defendant waived both his right to appeal his conviction and his right to challenge his conviction or his sentence by means of collateral attack.
A change-of-plea hearing was then held in the district court, during which the district judge engaged in a dialogue with Webb aimed at ensuring that Webb was competent to enter a plea. During this exchange, Webb informed the district judge that he had received a copy of the charging information and had discussed the charge against him with his attorney. Webb‘s defense counsel corroborated Webb‘s testimony, stating that he and Webb had discussed the charge “at great length” and that the attorney felt that Webb “understands what we‘re doing.” J.A. at 25 (Tr. of Change-of-Plea Hr‘g at 5).
The district court then had the prosecutor read aloud portions of the plea agreement to ensure that Webb understood its terms. The government stated that the essential element of the information was that Webb “knowingly possessed a machine gun.” J.A. at 31-32 (Tr. of Change-of-Plea Hr‘g at 11-12). The government then recited the facts to which Webb stipulated by signing the plea agreement:
On December 16th of 2000, in Whitley County, which is located in the Eastern District of Kentucky, Bernard Chester Webb was a passenger in a vehicle operated by James Gary Thacker. After the vehicle was stopped by an officer of the Corbin Police Department and subsequent to a consent search authorized by Mr. Thacker, the officer located a Citizen Model [MK5 nine-]millimeter machine gun in a duff[el] bag which belonged to Mr. Webb who knew the machine gun was in the duff[el] bag and knowingly possessed the same.
J.A. at 32 (Tr. of Change-of-Plea Hr‘g at 12). Finally, the government read the remainder of the plea agreement‘s terms, including the plea agreement‘s sentencing recommendations and the rights Webb waived by signing the plea agreement. Webb then acknowledged that the government had accurately summarized the terms of the plea agreement. Later, the court reiterated the facts stipulated by Webb in the plea agreement, and Webb admitted their veracity. Following Webb‘s admission, the district judge concluded that Webb‘s guilty plea was knowing and
The district court then held Webb‘s sentencing hearing on August 15, 2003. The defense counsel challenged the government‘s recommendation that Webb receive a two-level increase for possession of a stolen machine gun pursuant to
II. ANALYSIS
On appeal Webb has raised three claims: (1) his guilty plea was invalid as a result of the district court‘s failure properly to inform him of the charge against him during his change-of-plea hearing; (2) the district court erred in imposing a two-level sentence enhancement pursuant
A. Guilty Plea
[REDACTED] Webb alleges that his guilty plea was not knowing, voluntary, and intelligent because the district court failed to comply adequately with
[REDACTED] A guilty plea is valid if it is entered knowingly, voluntarily, and intelligently by the defendant. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.“).
[REDACTED] Webb alleges that the district court failed to inform him properly of the elements of the charges against him as required by
[REDACTED] We find ample evidence indicating that Webb was sufficiently informed of the charges against him. During the Rule 11 hearing, Webb informed the district court that he had received a copy of the information and had discussed its contents with his attorney. Webb‘s attorney confirmed that he had discussed the charge “at great length” with Webb and felt that Webb understood the charge. J.A. at 25 (Tr. of Change-of-Plea Hr‘g at 5). The district court also had the prosecutor read the charge to Webb. The judge then questioned Webb as to his understanding of the plea agreement (which included the charge) and the factual basis for the charge.
The charge against Webb was not so complex as to require any further explanation beyond that which was provided. All that was required was that Webb understand the meaning of the terms “knowing” and “possession,” both of which, under the facts of this case, are terms easily understood by a defendant. There is therefore nothing in the record to suggest that the district court failed to comply with the mandates of
B. Sentencing
At sentencing, Webb argued that a two-level sentence enhancement for possession of a stolen machine gun pursuant to
1. Booker Claim
[REDACTED] We may review Webb‘s Sixth Amendment claim based on Booker despite the fact that the Supreme Court did not issue its decision in Booker until after the district court sentenced Webb. See Booker, 543 U.S. at 268, 125 S.Ct. at 769 (noting that the case‘s holdings apply to all cases pending on direct review). As Webb failed to raise a Booker challenge to his sentence in district court, however, we can reverse only on a showing of “plain error” by the district court. United States v. Oliver, 397 F.3d 369, 375 (6th Cir.2005); 4 see also United States v. Davis, 397 F.3d 340, 346 (6th Cir.2005); United States v. Calloway, 116 F.3d 1129, 1136 (6th Cir.), cert. denied, 522 U.S. 925, 118 S.Ct. 324, 139 L.Ed.2d 250 (1997);
In applying the first prong of the plain-error test we must determine whether in light of Booker, a sentencing error occurred. In Booker, the Supreme Court announced two important conclusions. First, the Court concluded that the Sixth Amendment as construed in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), does apply to sentencing pursuant to the Guidelines. Thus, Booker made applicable to the Guidelines the Supreme Court‘s past holding that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a
[REDACTED] Second, the Supreme Court was faced with the challenge of determining how to remedy potential Sixth Amendment violations created by the mandatory sentencing enhancements under the Guidelines. Writing for the Court, Justice Breyer concluded that the proper remedy was to sever the statutory provisions that make the Guidelines mandatory in nature, thereby rendering the Guidelines “effectively advisory.” Id. at 245, 125 S.Ct. 738. Thus, while a district court must still give some consideration to the appropriate Guidelines range when making a sentencing determination, a court is no longer bound by the applicable Guidelines. It is therefore erroneous for a district court to sentence a defendant based on the belief that the Guidelines are mandatory even if no Sixth Amendment violation results. See id. at 268, 125 S.Ct. at 769 (remanding the defendant Fanfan‘s case for resentencing despite the lack of a Sixth Amendment violation).
[REDACTED] In this case no Sixth Amendment violation occurred in light of the Supreme Court‘s decision in Booker. Booker made clear that a Sixth Amendment violation occurs when a district court has issued “a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict” based upon any fact (other than a prior conviction) not “admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 244, 125 S.Ct. at 756 (emphasis added). Here, Webb admitted in the plea agreement that the machine gun qualified as a destructive device and that the machine gun was stolen. J.A. at 18 (Plea Agreement at 2) (“Defendant recommend[s] ... [p]ursuant to 2K2.1(b)(4), 2 levels are added in that the firearm was stolen.“). Therefore, no constitutional infirmities were created by the district court‘s reliance on these facts to enhance Webb‘s sentence beyond the base offense Guidelines range. See United States v. Parsons, 396 F.3d 1015, 1017 (8th Cir.2005) (holding that no Sixth Amendment violation occurred when the defendant admitted as a part of his plea agreement the facts requiring a sentence enhancement under the Guidelines).
[REDACTED] The district court did err, however, in determining Webb‘s sentence based on the presumption that the Guidelines were mandatory. From the record, it is clear that the district court felt bound to follow the mandates of the Guidelines. See J.A. at 62 (Tr. of Sentencing Hr‘g at 17) (noting that Webb was being sentenced “pursuant to the Sentencing Reform Act of 1984“); J.A. at 55-56 (Tr. of Sentencing Hr‘g at 10-11) (“So it really is an issue with the Sentencing Commission. They have made that a determination that knowledge is not a factor to be considered in imposing this two-level enhancement.“). Given the Supreme Court‘s announcement in Booker that the Guidelines are now only advisory and do not bind the courts, the district court erred in this case. The first prong of the plain-error standard is therefore satisfied.
[REDACTED] Webb‘s claim that the district court erred in treating the Guidelines as mandatory also satisfies the second prong of the plain-error test. A “plain error” is one that is “clear” or “obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). As we indicated in Oliver:
The critical question in this case is when the error must be plain ... The Supreme Court made clear in Johnson that an error need not always be obvious at the time of the district court‘s determination in order to be considered plain. “[W]here the law at the time of trial was
settled and clearly contrary to the law at the time of the appeal [ ] it is enough that an error be ‘plain’ at the time of appellate consideration.”
Oliver, 397 F.3d at 379 (quoting Johnson, 520 U.S. at 468) (emphasis in Oliver). When Webb was sentenced, it was uncontested that the Guidelines were mandatory in nature; however, by the time of appellate consideration, the law had changed, and it is now evident that the district court‘s reliance on the Guidelines as mandatory was in clear violation of Booker. Id. We therefore conclude that the second prong of the plain-error test has been satisfied.
[REDACTED] As to the third prong of the plain-error test, we must consider whether the district court‘s “plain error” affects Webb‘s substantial rights. “In most cases [for an error to affect a defendant‘s substantial rights] the error must have been prejudicial.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. Generally, this means that the circumstances of the case must indicate that an error caused the defendant “to receive a more severe sentence.” United States v. Swanberg, 370 F.3d 622, 629 (6th Cir.2004). However, in United States v. Barnett, 398 F.3d 516 (6th Cir.2005), a panel of this court held that a presumption of prejudice was appropriate in cases where a defendant is sentenced under mandatory, rather than advisory, Guidelines and the district court could have imposed a lower sentence had it known that the Guidelines were merely advisory. The Barnett court presumed prejudice in this context because of the “extraordinary difficulty” facing defendants in showing that the use of mandatory Guidelines affected the outcome of their sentencing proceedings. Id. at 528. Because Webb was sentenced under the Guidelines based on the now-erroneous assumption that they were mandatory, we presume, under Barnett, that Webb was prejudiced by this error.
We made clear in Barnett, however, that this presumption of prejudice could be rebutted in those rare cases where “the trial record contains clear and specific evidence that the district court would not have, in any event, sentenced the defendant to a lower sentence under an advisory Guidelines regime.” Id. at 529 (citing United States v. Crosby, 397 F.3d 103, 118 (2d Cir.2005)). We believe that the record in this case contains such clear and specific evidence. First, the district court imposed the now-challenged sentence enhancement based not only upon the Guidelines, but also upon the very terms of Webb‘s plea agreement. In the plea agreement, Webb and the government both agreed to recommend that the
Based on these facts, we conclude that this is an exceptional case where the record contains clear and specific evidence that the district court would not have sen-
2. Reasonableness of Sentence
[REDACTED] Having concluded that the district court‘s erroneous belief that it was bound by the (now-advisory) Guidelines did not constitute plain error under the special circumstances of this case, we must now address Webb‘s claim as to the district court‘s Guidelines calculation. Webb contends that the district court erred by imposing a sentence enhancement pursuant to
[REDACTED] As the Second Circuit recently noted, “review for ‘reasonableness’ is not limited to consideration of the length of the sentence.” Crosby, 397 F.3d at 114. Instead, we read Booker as instructing appellate courts in determining reasonableness to consider not only the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination. Thus, we may conclude that a sentence is unreasonable when the district judge fails to “consider” the applicable Guidelines range or neglects to “consider” 5 the other factors listed in
[REDACTED] The district court in reaching its 6 sentencing determination properly calculated and considered the appropriate Guidelines range. See
Additionally, the district court properly considered several other pertinent
The district court also took into account additional characteristics of Webb in crafting the appropriate sentence. See
[REDACTED] Finally, there is no evidence in the record that the district court acted 8 unreasonably by, for example, selecting the sentence arbitrarily, basing the sen- 9 tence on impermissible factors, failing to consider pertinent
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s judgment.
KENNEDY, Circuit Judge, concurring in part and dissenting in part.
I concur in the panel‘s opinion with the exception of footnote nine. We are not called upon to decide whether sentences within the Guidelines are per-se reasonable to affirm the sentence in this case. On that ground alone, I would decline to address the issue raised in the footnote. [REDACTED] Because the majority addresses the issue, however, I feel compelled to address it as well.
Nor, do I agree with the last sentence of footnote nine, which indicates that holding all sentences within the Guidelines’ range per-se reasonable would effectively make the Guidelines mandatory. If this court were to hold that a sentence within the Guidelines’ range is per-se reasonable, it does not follow that a sentence outside the Guidelines’ range is per-se unreasonable, a necessary prerequisite to making the Guidelines effectively mandatory. Hypothetically, a sentence within the Guidelines’ range could be just as reasonable as a sentence outside the Guidelines’ range. Thus, even if this court were to hold that a sentence within the Guidelines’ range is per-se reasonable, the voluntariness of the Guidelines would still be maintained provided that the court did not also hold that sentences outside the Guidelines’ range are per-se unreasonable.