UNITED STATES of America, Plaintiff-Appellee, v. Kerry Vaughn BLACKIE, Defendant-Appellant.
No. 07-2002
United States Court of Appeals, Sixth Circuit
Submitted: July 25, 2008. Decided and Filed: Nov. 21, 2008.
548 F.3d 395
IV. CONCLUSION
Because all of MMO‘s claims are barred by the contractual limitations period, we AFFIRM the district court‘s grant of summary judgment to k. Amalia, Barr, Tran, and Luu. Because MMO‘s motion for reconsideration did not raise any issues that affect our analysis, we also AFFIRM the district court‘s denial of MMO‘s motion for reconsideration.
Before: MOORE and SUTTON, Circuit Judges; ALDRICH, District Judge.*
ALDRICH, D.J., delivered the opinion of the court, in which MOORE, J., joined. SUTTON, J. (p. 404), delivered a separate opinion concurring in part and concurring in the judgment.
OPINION
ANN ALDRICH, District Judge.
Kerry Blackie pled guilty to a single count of possession of visual depictions of minors engaging in sexually explicit con-
For the reasons set forth below, we VACATE Blackie‘s sentence and REMAND the case for resentencing consistent with this opinion.
I. BACKGROUND
In October 2005, the Bureau of Immigration and Customs Enforcement (ICE) began investigating a child pornography website known as “illegal CP,” which revealed numerous subscriber records. Those records indicated that Blackie purchased a 20-day membership to “illegal CP” for $79.99. (J.A. at 253; PSR at 4).
In October 2006, ICE agents, assisted by officers of the Lansing, Michigan Police Department, executed a search warrant at Blackie‘s residence and seized two computers and a thumb drive. Numerous images of minors engaged in sexually explicit conduct were found on the hard drives and thumb drive. Twenty-two of those images are referenced in the one-count indictment. In April of 2007, Blackie signed a plea agreement and pled guilty. (J.A. at 254-56; PSR at 5-7).
A pre-sentence report (PSR) was subsequently prepared. The PSR recommended a Sentencing Guidelines base offense level of 18 with a four-level enhancement for masochistic content pursuant to
The recommended adjusted offense level was therefore 25 with a criminal history category of I. The Sentencing Guideline range was calculated at 57 to 71 months. (J.A. at 275). After consideration of the factors under
Prior to the sentencing hearing, Blackie filed a motion seeking a “downward departure or variance” to a non-custodial sentence because he had been the sole parent and caregiver of his 15-year-old daughter for the past 13 years. (J.A. at 157). The court declined to render a separate ruling on the motion, noting that it would consider Blackie‘s family situation as part of the “sentencing matrix.” (J.A. at 232).
At the sentencing hearing, the district court acknowledged the PSR‘s recommended adjusted offense level of 25 and a criminal history category of I. (J.A. at 233). After hearing from the government and from Blackie, the court rejected or reduced two of the PSR‘s enhancement recommendations. First, the court found that “the vast majority of materials not only viewed, but downloaded were not that of masochistic material.” (J.A. at 242). Therefore, the judge continued, “this court believes that to really add four points to this total is really much too high an
The court‘s revision of the PSR‘s recommended enhancements resulted in an adjusted offense level of 20 with a Sentencing Guideline range of 33 to 41 months. However, the judge never stated in open court any calculation of the new offense level or Guideline range. The court then addressed additional
Following the pronouncement of the sentence, the judge asked the parties if they had “any legal objection to the sentence imposed.” (J.A. 245). The government objected to the sentence. The defense, however, had no objection.
II. ANALYSIS
We review for reasonableness Blackie‘s claim that the district court failed to consider his family ties and responsibilities at sentencing because he had raised the issue prior to and during the sentencing hearing, thus preserving it for appeal. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). “Assuming that the district court‘s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. “The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Id.
We review Blackie‘s remaining claims for plain error because he did not object to the district court‘s sentence on those grounds. “If a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity to speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal.” United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). “Providing a final opportunity for objections after the pronouncement of sentence, ‘will serve the dual purpose[s] of permitting the district court to correct on the spot any error it may have made and of guiding appellate review.‘” Id. (quoting United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990)). See also United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc). This rule is especially important where, as here, the defendant may not know if he will have reason to object until the sentence is handed down.
Here, the district judge provided the parties an opportunity to object following the imposition of the sentence. Because Blackie did not object to his sentence based on a potential disparity, a departure or variance outside the Guidelines range, or a Rule 32(h) violation, we now review those claims for plain error.
The Supreme Court provides the analytical framework for determining plain error. United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). Blackie must establish that (1) an error occurred, (2) that the error was “plain,” (3) that the error affected substantial rights, and (4) that “the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. at 734-37, 113 S. Ct. 1770.
A. Consideration of 18 U.S.C. § 3553(a) Factors
Blackie argues that the district court failed to properly consider the factors set forth in
Section 3553(a) requires the sentencing court to consider the following factors: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant“; (2) “the need for the sentence ... to reflect the seriousness of the offense, to promote respect for the law, ... to provide just punishment,” and to provide the defendant with training, medical care, or other treatment; (3) “the kinds of sentences available“; (4) the applicable advisory Guidelines range; (5) relevant policy statements by the Sentencing Commission; (6) “the need to avoid unwarranted sentencing disparities“; and (7) “the need to provide restitution to ... victims.”
Specifically, Blackie argues that the court failed to properly consider factors (5) and (6).
1. Policy Statements by the Sentencing Commission
Blackie argues that the district court did not properly consider his family circumstances before sentencing him. Reviewing for reasonableness, we find that this claim is without merit.
While the Guidelines are no longer mandatory, the sentencing court “must still consider ‘any pertinent policy statement.‘” United States v. Husein, 478 F.3d 318 (6th Cir. 2007) (quoting
During the sentencing hearing, Blackie‘s counsel reiterated his motion and argument for a downward departure or variance “based solely on the loss of caretaking ... for his 15-year-old daughter, Jasmine.” (J.A. at 222; STR at 5). After hearing defense counsel‘s argument for a downward departure, the court responded that it “need not decide that a downward departure is granted or denied on this case. I think the whole matter goes into the sentencing matrix.” (J.A. at 232; STR at 15).
The district court considered Mr. Blackie‘s family responsibilities at sentencing. Given the deference to the district court‘s consideration of the
2. Sentencing Disparities
Blackie argues that the district court neglected “to address the need to avoid unwarranted sentencing disparities among defendants with similar records” as required by
Section 3553(a) requires the district court to “consider” seven factors and it is the district court‘s task to balance those factors when imposing a sentence. See United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).
At the sentencing hearing, the court acknowledged its responsibility to understand what “comparable individuals in comparable circumstances have received in the past in order for the sentence to be just in conjunction with other sentences.” (J.A. at 232; STR at 15). Moreover, the court did act to avoid unwarranted sentence disparities when it reduced the PSR‘s recommended enhancements for the number of images. The court noted that in “comparison with [other cases] this Court has had before it where a person‘s downloaded thousands” of images, that “is not the case here” and rejected the enhancements for the number of images. (J.A. at 243; STR at 26).
While
The court considered the need to avoid disparities among similarly situated defendants and factored it into its sentencing considerations. We are unable to find that the district court abused its discretion.
B. Sentencing in Excess of the Guidelines Range
Blackie argues that the district court failed to state any specific reason for the imposition of a sentence in excess of the Guidelines range in violation of
(c) Statement of reasons for imposing a sentence.—The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in the written order of judgment and commitment....
The district court must also acknowledge “the defendant‘s applicable Guideline range.” United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005); United States v. Cousins, 469 F.3d 572, 577-78 (6th Cir. 2006). A sentence imposed without complying with the require-
These requirements are more than mere administrative burdens or meaningless formalities, but rather assure that the court has properly calculated the applicable Guidelines range, and that adequate explanation is provided to allow for meaningful appellate review and the perception of a fair sentence. See Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597-98, 169 L. Ed. 2d 445 (2007).
In this case, the district court acknowledged at the beginning of the sentencing hearing that the PSR recommended an adjusted offense level of 25 and a criminal category of I, but failed to state the corresponding Guideline range. After hearing arguments from Blackie and the government regarding Blackie‘s family responsibilities, the court considered the enhancement levels recommended in the PSR. The court found that two of the enhancements were not warranted in this case and gave its reasons for rejecting or reducing those enhancements. Unfortunately, the court was not clear as to whether it had rejected the specific enhancements or simply reduced their numerical levels. This ambiguity persisted as the district court never recalculated the new offense level or the new Guidelines range during the sentencing hearing.
The district court then sentenced Blackie to a term of 42 months without indicating that the sentence was outside the Guidelines range or stating the court‘s specific reasons for the variance. See Cousins, 469 F.3d at 578 (finding a sentence procedurally unreasonable when “the district judge failed to provide his reasoning for the variance or to explain how the two months that he added to the maximum Guidelines sentence were related to his stated goal of protecting the public, which might as easily be invoked to justify a variance of one day or ten years. We therefore hold that the district court failed to provide sufficient explanation to permit meaningful appellate review....“).1
Because of the ambiguity during Blackie‘s sentencing hearing, the exact nature of the district court‘s determinations as to the new offense level and Guidelines range were not made apparent until the court issued a written judgment and commitment order, which classified the sentence as “above the advisory guideline range.” The order further clarified that the recommended four-level enhancement for masochistic content was reduced to one level and the two-level enhancement for the number of images was rejected entirely.
Yet, the written judgment and commitment order also lacks the requisite level of specificity as to the reasons for sentencing above the Guideline range. The order simply checked two boxes to indicate its reasons for sentencing outside the guideline system and left blank the section of the order for facts justifying the sentence.
The district court‘s failure to comply with the requirements of
Having established a plain error, we must next determine if that error affected Blackie‘s substantial rights, and whether that “error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 734-37, 113 S. Ct. 1770. Defendants have a right to meaningful appellate review of their sentences and
We now join these circuits in finding that
Here, Blackie‘s sentence in excess of the Guidelines range was imposed without the court‘s acknowledgment of the applicable Guidelines range and without a statement of reasons for such a variance. Section 3553(c)(2) requires not only a statement of reasons, both stated “in open court” and written in a judgment and commitment order, but also that those statements be made with “specificity.” We do not assume that the sentence was imposed arbitrarily, but without compliance with
Compliance with
Finally, the treatment of a
Accordingly, we find that the district court‘s violation of
C. Notice Requirement of Federal Rule of Criminal Procedure 32(h)
Blackie argues that the district court erred in failing to provide adequate notice of its intent to depart from the Sentencing Guidelines range for reasons not already on the record, in violation of
Rule 32(h) requires that: “[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party‘s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.” (emphasis added).
“‘Departure’ is a term of art under the Guidelines” and is distinct from a “variance.” Irizarry v. United States, 553 U.S. 708, 128 S. Ct. 2198, 2202, 171 L. Ed. 2d 28 (2008). This court has succinctly described the differences between the two terms:
A district court may impose a sentence outside of the applicable Guidelines range through a Guidelines or non-Guidelines departure. “Our court has previously explained that departures based on Chapter 5 of the Guidelines should be referred to as ‘Guideline departures,’ and that ‘sentences lower than the Guidelines recommendation based on section 3553(a) factors’ can be referred to as ‘Non-Guideline departures.‘” We often refer to Non-Guideline departures as “variances.” Cousins, 469 F.3d at 577 (citations omitted).
The Supreme Court has further clarified that
Here, the district court imposed a non-Guidelines sentence—a variance. (Judgment and Commitment Order—Statement of Reasons). Therefore, pursuant to Iri-zarry,
III. CONCLUSION
For the above reasons, the sentence is VACATED and this case is REMANDED to the district court for resentencing consistent with this opinion.
SUTTON, Circuit Judge, concurring in part and concurring in the judgment.
I agree with the majority‘s disposition of this appeal and with its reasoning in addressing each of the questions raised, save one: Did the district court fail to satisfy
The government never asked us to apply plain-error review to this claim, which by itself is reason enough not to apply this standard to the issue. Cf. United States v. Chiles, 137 Fed. Appx. 870, 872 n. 2 (6th Cir. 2005); United States v. Fuller, 77 Fed. Appx. 371, 380 n. 9 (6th Cir. 2003). Making matters easier, the government failed to respond at all to this allegation of error. I therefore see no reason to do anything more than confirm the error and ask the district court to correct it.
The majority instead takes on the question of whether and when a violation of