United States v. Conrad Vernon Smith

GIBBONS, Before KENNEDY and ALDRICH, Judges; Circuit District Judge.* OPINION KENNEDY, Judge. Circuit ap- Defendant Conrad Vernon Smith sentence, peals asserting his 57-month that the sentence is unreasonable because in judge, calculating the sen- (1) tence, engaged impermissible in fact- (2) finding and failed follow the method- 4A1.3, in ology set forth U.S.S.G which greater resulted a sentence that was than necessary was to comply with the 3553(a). factors set forth in 18 U.S.C. For the reasons set forth below we AF- FIRM the the district court.

BACKGROUND Defendant Conrad Vernon Smith (“Smith”) pulled police was over state Columbus, Ohio. ap- When officers proached the placed vehicle he his hands shouted, outside the car and “I am not lie; going to I don’t have a driver’s license gun and there car.” gun That loaded, was a shotgun resting sawed-off the driver’s side weapon floorboard. The unregistered was and the serial number already had been obliterated. Smith was convicted felon. grand jury

A for the Southern District Yeazel, Columbus, ARGUED: A. Keith of Ohio returned a three-count indictment Ohio, (1) Appellant. Benjamin for against C. Glass- for possession Smith of an un- man, (2) Attorney, firearm, Assistant registered possession United States aof fire- Cincinnati, Ohio, number, arm Appellee. ON with an obliterated serial (3) Yeazel, Columbus, Ohio, BRIEF: Keith A. possession of a firearm as a convicted Appellant. Benjamin Glassman, C. As- felon. pleaded guilty to the third * Aldrich, Ohio, sitting by designation. The Honorable Ann United States Judge District for the Northern District of

891 States, 118 S.Ct. U.S. counts United exchange for dismissal count (1998), in which the 140 L.Ed.2d 350 two. one and distinguished between sen Supreme Court investigation report presentence A criminal of separate factors and tencing that' Smith determined which prepared, Burgin, 388 fenses. See United States 12 and a criminal an offense level had (6th Cir.2004); see also F.3d (CHC) noted ItVI. history category Hollingsworth, F.3d States v. 30-37 (6th Cir.2005) (following Burgin object to the parties did months. noted, Supreme “The Court post-Booker). report. ‘the relevant stat things, that among other that it Smith district court notified The recidivism,’ and subject matter utory departure upward considering was of a ‘—the commission prior recidivism of his because 4A1.3 on U.S.S.G. based sentencing typical a crime—is as serious to an objected history. Smith criminal ” imagine.’ Burgin, 388 might as one factor a down- requested and omitted). (internal citations F.3d at 183 sentencing hearing, At a departure. ward Almendarez-Torres, Apprendi After objections and Smith’s court overruled 466, 120 S.Ct. Jersey, New 530 U.S. v. sentencing from the departed (2000), 2348, the Court 147 L.Ed.2d 435 level to offense guidelines recommendation a crimi prior than the fact'of held “other advisory range, the 16, The new VI. CHC conviction, any that increases fact nal found, imprison- months was 46-57 beyond prescribed for a crime penalty a imposed thus The court ment. submitted statutory maximum must be followed. timely appeal This of 57 months. beyond a reasonable proved and jury, 490, As 120 Id. at S.Ct. doubt.” ANALYSIS brief,- after his properly notes Smith Findings The District Court’s I. excep Apprendi, the Almendarez-Torres Fact It Br. at 11. Appellant’s narrow. tion is encompass the is, enough wide court ex- that the district argues here. finding by mak- district court’s fact-finding prerogative ceeded its findings; ing “comparative qualitative” court found Burgin, In finding Smith contests example, on differ were committed “prior felonies “egregious.” that his at 186. 388 F.3d ent occasions.” Br. He cites United at 12. Appellant’s find of that portion occasions” “different Booker, 220, 244, 125 U.S. v. 543 States under the reaches the defendant ing put (2005), 738, L.Ed.2d 621 160 S.Ct. Act, 18 U.S.C. Armed Career Criminal conviction[,] that “the nature argues 924(e). such, sig As his sentence conviction,” the mere fact beyond “that concluded We nificantly enhanced. by the defendant pleaded either be ... requirement ‘different occasions’ doubt. beyond a reasonable proved or exception sufficiently comes within conviction.... that, prior for a Apprendi noted previously “[c]on- We involves language occasions’ ‘different prior [are] ... convictions about clusions traditional, recidivism, if not the ‘a issue after Book- [and] the same before treated traditional, sentencing Richardson, most basis 437 ...” er. United ” Cir.2006). an offender’s sentence.’ increasing analysis 550, Our 555 F.3d 530 (citing Apprendi, 388 at 186 Burgin, con- prior sentencing treatment 2348). 488, 120 S.Ct. at v. U.S. begins with Almendarez-Torres victions 892

Post-Booker, rely we continue to finding S.Ct. 2348. The court’s increased Burgin. Hollings States v. recommended, United advisory range, but worth, Hollings- 414 at Joshua F.3d statutory was still below the challenged worth the district court’s find penalty. maximum The district court did ing prior that one of his convictions was act impermissibly. violence,” for a “crime of which increased rejected his sentence. argument We his II. Reasonableness the District expanded holding Burgin. our Court’s Sentence “[Tjhe previous violent nature of a offense pertains ‘is not a fact that to the commis We review sentences for reason sion of the offense for which the defendant Collington, ableness. States v. presently charged,’ but rather a fact (6th Cir.2006). so, F.3d In doing pertains previous to a Id. at offense.” path. we follow well-trodden After 186). (citing Burgin, Booker, United States v. 543 U.S. 621, (2005), S.Ct. 160 L.Ed.2d recently, again

Even more found that courts treat Federal judge’s Sentencing a district Guide pre- determination that a vious crime a advisory mandatory. was crime of violence was lines as rather than permissible However, under the Sixth Amendment as a court appeal, we still In post-Booker. Alford, United States v. guidelines they defer to these since reflect (6th 677, Cir.2006), 436 F.3d 681 we ex- “nearly judg two decades of considered that, plained Burgin, in “[a]s the district ment about range appropriate the sen court in attempting this instance was tences,” Buchanan, United States v. 449 recidivism, scope determine the of Alford’s (6th 731, Cir.2006) (Sutton, J., F.3d 736 is, that whether responsible he was by concurring), attaching a pre rebuttable multiple instances of crimes violence or sumption to a sentence within the Guide only whether this was single, one isolated lines recommended United States incident.” (6th Williams, 706, v. 436 F.3d 708 Cir. 2006). presumption, however, That does case, present the the district not imply presumption against a a sen judge examined history Smith’s criminal range. Collington, tence outside the 461 and prerogative was within his to consider so, give F.3d at 808. Even we sentences it egregious” “extensive and and to consid range “And, outside a er the closer look. like these characteristics in determining every appeals whether court of guidelines deviate from the to consider the range. He in history question, considered the an we take that the view when the attempt to discern the “likelihood independently district court chooses to lifestyle [Smith’s] criminal will continue.” vary advisory guidelines from the range such, Op. Dist. Ct. and Order 6. As (whether it), apply above or below we “traditional, determination falls under a proportionality form of great review:” the traditional, not the most basis for sen range, er the variance from the the more tencing increasing court’s an offender’s justification compelling the for variance Apprendi sentence.” 530 U.S. at 120 Davis, must be. United States v. S.Ct. 2348. (6th Cir.2006). Therefore, when a

Furthermore, significantly sentence varies from the finding the district court’s guidelines range, “extraordinary did not circum penalty for a crime ] “increase! beyond prescribed “justify stances” statutory maxi- must the full amount of mum. ...” Apprendi 530 U.S. at 120 the variance.” Id. at 496-97. by a stan- must be measured found court below

The district appeal. dard of reasonableness level, criminal light in of Smith’s offense contests Smith inadequate. history, Joan, F.2d 494- v. United States case, In this departure. upward (6th Cir.1989). has The Seventh Circuit question of rea- therefore, approach we § 4A pre-Booker 1.3 employed its similar First, if find we ways. in two sonableness attempting to determine case law correctly computed court Unit- a sentence reasonable. whether depar- upward in its range guideline Castro-Juarez, 425 F.3d 430 ed States “extensive light of Smith’s Cir.2005). ture However, it did so “with treat history, we will egregious” question [it] before the caveat that guidelines within the as the sentence of the sen- ultimately the reasonableness it was reasonable. therefore presume imposed, not the tence the to re- subject the sentence still We authoriz- of a application above, that review view, but as noted at 434. departure.” Id. ing If, we find exacting. less circuit our sister litigants Like before justified was not district court Castro-Juarez, parties before us both advisory and that the departure, analysis of the us with their provided calculat- properly therefore range was jurisprudence. § 4A1.3 case under our ed, presumption will not attach steps that the first two concedes lev- approach it reasonableness is, met; his criminal ex- skepticism. with more ied sentence guidelines anticipated ceeded that making up that the convictions range and reveal an analysis should This brief fact, did, Br. Appellant’s in' occur. history review of a district our obvious conclusion: step, arguing the last at 17. He contests higher of departure to a upward unreason- departure was analysis of mirror our level should fense approach more prefer an He would able. guidelines variance from the district court than that mechanical employ either court can Since a district IV, III, have a and V each took. CHCs result, should arrive at same we is, history That points. range of 3 scruti with the same both review methods 4-6 CHC IV ranges points, from CHC III ny. 7-9, 10-12. CHC V from from and CHC Booker, greater. a three- employed points Prior to VI consists this incre- in our review of continue approach us step Smith would adding § offense level by 4A1.3: an departures under U.S.S.G. mental method of 12. in excess every points three law re- question is a step The first 16 criminal is, level at add an offense That the circumstances garding whether 19, 22 and so on. history points, justi- unusual to sufficiently the case are approach, a mechanistic a deter- Such Step two involves fy departure. post- to our us to be antithetical seems there is actual to whether an mination as to sentences, reviewing approach Booker justifying departure. factual basis flexibility and discretion emphasizes deter- which Here, is whether the the standard for ex- Collington, judges. of district clear error.... involves mination made stated, no mathemati- “There is that, ample, we once the Court step third that defines or formula percentage cal sentencing assured itself has review Appellate is. appro- what reasonableness circumstances court considered cold to such be reduced simply cannot degree departure, priate very Third, It calculations. is those calculations substantive reasonableness—or progeny attempted Booker and its to what Joan called simply “reasonable- sentencing pro- remove from the federal govern ness”—must imposed. the sentence Therefore, cess.” Id. it is here that we punishment must fit the crime. incorporate post-Booker our jurispru- case, In this the district court not upward departures dence to our review of only explained the depart reasons it was § under 4A1.3. ing upward provided but it also analysis split “We have now our reason factors. It examined each inquiries: proce ableness review into two prior convictions on Smith’s record. dural reasonableness and substantive rea concluded, It review, based on this Collington, sonableness.” 461 F.3d at 808. abuse, Smith “has a drug pos requires Procedural reasonableness a sen sessing firearms, dangerous acts tencing judge to “consider” the factors out against violence women.” Dist. Ct. Op. at 3553(a). lined in 18 U.S.C. Id. at 7. The explained 5. It that it chose the sentence it purpose of procedural reasonableness is to did because Smith “has shown utter disre review, appellate enable require so we gard for the law throughout the course of judge explain the factors that his life.” Id. at 7. It recognized that the justify imposed. the sentence sentence would keep Smith off the street Williams, States v. James and that that alone was a benefit to the (6th Cir.2005). However, this stan safety of the community. In considering dard require judge does not that a be an above, all of the recognized the court automaton, listing inapposite factors objections Smith’s and provided explana rote. It is enough explain why why tion of it was rejecting them. Fur defendant is different from most. ther, provided it explaining why section A sentence will fail to be substan downward requested tively reasonable “the district court ‘se was not granted. arbitrarily, lect[s] the sentence bas[es] We do not require a rote recitation of factors, impermissible fail[s] 3553(a) § factors but rather an explanation 3553(a) to pertinent § consider factors or why of the district court chose the sen- giv[es] an unreasonable amount of weight ” tence it did. The court below examined any pertinent to Collington, factor.’ many § of the factors and attached Webb, F.3d at (citing to them a not weight. unreasonable We Cir.2005)). conclude that it was within its discretion to Again, we note that the standards for impose the sentence it did. determining whether an to another offense appropriate level is Sufficiency III. Necessity similar to those judge standards use to Sentence procedural the and substantive reasonable- of Finally, ness any guidelines argues variance from that the likely Procedural sentence is reasonableness can to create be unwarranted equated disparities to the first steps two outlined in because he is not eligible to First, Joan. participate district court must explain the Residential Drug Treat (RDAP). the justifying departure and, reasons ment Program In 18 U.S.C. second, 3621(e)(2)(B), evidence of those reasons Congress gave the Bureau appear (BOP) in the record. explanation Such of authority Prisons the to reduce allows meaningful appellate prisoners’ review. by up 1-year sentences to if and However, CONCURRENCE RDAP. completed they when Ac- criminals. violent excepted Congress GIBBONS, Circuit SMITH JULIA the Smith, expanded the BOP cording to concurring. Judge, crimi- violent for disqualification legislative aof possession felons include to nals dispo- opinion’s majority I in the concur that argues Essentially, Smith firearm. to separately case but write of this sition unequal foot- on him puts ineligibility his points. two make crimi- other nonviolent regard ing with nals. view, opinion I of the First, Part my argu- the same argument plainly meritless reject defendant’s

We treats Congres- the court below: as engaged reasons court ment (a) not automatic incentive sional worthy of one fact-finding as inappropriate A defendant’s (b) looking. not forward over glosses analysis and thus substantial contingent on is RDAP for the eligibility Defen- argument. nature of exact if a defendant Even by the BOP. approval court’s the district is that argument dant’s does not the BOP program, completes history was his criminal comments 18 U.S.C. the sentence. reduce there and that egregious” “extensive Therefore, dis- 3621(e)(2)(B). sentence a “likelihood defendant’s inher- envisions is type Smith parity to im- amounted will continue” lifestyle pris- Some program. legislative in the ent fact-finding because judicial proper others, reduction, while get the will oners exis- merely finding the beyond went prison, entering before similarly situated criminal convictions. of defendant’s tence conclude therefore cannot not. We will accept defen- I it difficult is unwarranted. find disparity While characterization dant’s prison- addition, the reduction fact,1 I findings as observations court’s in- as also structured sentence er’s purposes that he is correct before assume reduce the To centive. enroll, attempts problem even this issue. addressing the defendant would that he assumption based dis- argument defendant’s with program complete in and enroll both post-Book- facts ability to find court’s trict obtain allowed, no incentive to provides prior to a determination not limited er is treatment. going convictions, and the district no poses fact conviction beyond the CONCLUSION in an whatever problem Sixth Amendment reasons, the sentence foregoing For the Booker, 543 system. advisory guideline AF- court is by the district imposed 738; also United see 233, 125 S.Ct. U.S. FIRMED. (6th 651, Stone, 654-55 432 F.3d Cir.2005) argument (rejecting defendants’ 7-8), a GIBBONS, delivered (pp. J. power without court was the district concurring opinion. separate clearly comments, court was the district view, part of my these observations 1. In of the prongs standard apply concluding that both to legal conclusion departure about recidivism The comment § The standard were met. 4A1.3. to con- latter requires the court to as the explicit that section determination under an history egregious” criminal the defendant’s clude that the “extensive prong, while the under-represents substantially category part of the prelude is a remark history like- the or of his criminal seriousness prong met. the initial determination other will crimes. he commit lihood that make factual determinations guidelines regarding contemplate a process for de- the amount of tax loss or whether defen- parting that does not result a new advi- justice dants obstructed in calculating sory the range but rather a sentence outside guidelines range recommended 5, defen- the K, § Even in the Part de- on charges situation, dants’ convictions of conspiracy parture however, courts of- have to commit tax fraud and tax evasion and ten used the of the steps sentencing table noting that judi- Booker did not guide eliminate as a explained depar- the fact-finding cial but rather freed district ture terms a particular number of courts to sentence Yet, outside steps. defendants processes the as conceptual- advisory Thus, the now guidelines range). ized in guideline policy statements do easy answer to argument defendant’s differ. the district court found facts majority The opinion concludes that the convictions, than prior other it was clearly pre-Boofcer standard first articulated permissible to do so. We need not work to this circuit in Joan should continue to place the court’s comments within the defi- guide analysis our departures3 nition of prior conviction Almendarez- § under 4A1.3. reasoning Its in doing so is Torres, majority as the opinion does.2 sound, for the utilization of the Joan stan-

Second, while I difficulty have no with analogous dard is to our continued use general analysis in Part II opin- p:re-Booker guideline standards to review ion, it fails to explicitly state the ultimate calculation decisions in other contexts. impact approach. of its See, We deal here e.g., Davidson, with United States v. upward departure 4A1.3, § (6th under 304, Cir.2005). which F.3d But using relates to inadequacy aof approach defendant’s Joan introduces a wrinkle category. The advice into guideline process calculation un- policy district courts § statement sec- der 4A1.3 because the third step of the where, case, as in this analysis required defendant’s by Joan involves reason- tion-— criminal history category is VI—is to ad- ableness review. majority The deals with just range by moving by down the wrinkle importing post-Booker our the sentencing table in Criminal History case law and standards into the Joan anal- Category VI. The ysis. result be a new The effect of application of the advisory guideline range, within which the framework by created the majority is this: may defendant By be sentenced. contrast, to the extent a departs from policy statements accompanying depar- particular guideline range to arrive at a K, § tures under Part of the advisory new on inadequacy based majority may The be correct well "variance” departures refers based on district court findings could make these § even departures factors rather than un- by if restricted gov- K, Almendarez-Torres. guidelines. der Part See United ernment, citing Alford, 436 F.3d at Cousins, States v. principle frames the following way: in the Cir.2006). here is under implicit "[I]ssues in the facts of other convic- only departure 4A1.3 and is type of its ... tions need not be admitted the defen- guidelines i.e., mentioned in the the only de- — proved dant jury, or to the even under a parture applies in which the court discretion mandatory system." (Appellee’s 10.) Br. at given under a legal standard to arrive at a range. policy new The language statement majority opinion The 3. at times uses the word "departure.” uses the word We are thus "variance,” which pre- has been used both dealing only awith "variance” if the is word cisely imprecisely post-Booker to refer to very general used in a sense. departures certain advisory guide- from line precisely, When used the term is departure history category, McLIECHEY, Cathy husband Burl and reason- of presumption to a entitled per- of a class behalf of and wife full reasonable- subject to is but ableness Plaintiffs-Ap- situated, similarly sons pre- any The absence review. ness pellants, the extent reasonableness sumption the fact given sense makes departure exer- involves departure § 4A1.3 that a COM- WEST INSURANCE BRISTOL akin somewhat of discretion cise Com- PANY, Reliant Insurance f/k/a district Part K. The under departures Company, pany, LHIW Insurance f/k/a however, by limited, discretion court’s Defendant-Appellee. similarly, our 4A1.3, language focus on No. 06-1228. inquiry reasonableness extent and the departure degree of Appeals, Court departure chosen which the Circuit. Sixth consid- light range is reasonable departures. § 4A 1.3 relevant erations Argued: Dec. 30, 2007. Filed: Jan. Decided that once to me

Finally, it seems subject § 4A1.3 has been under departure and the review reasonableness

to Joan deter- otherwise been range has

guideline pre- accurately, the calculated to be

mined then should reasonableness

sumption particular within the to a sentence

attach range that

advisory guideline a defendant. sentencing

utilizes step, but this omits opinion

majority out- in the no difference makes

omission Just as the case.

come in reason- range was higher guideline

to a sentence, wheth-

able, the ultimate so was so. was presumptively not it

er or fact does, obscure

omission review reasonableness -Booker post range, occur after

should de- been has departure, included

with consid- we look At this point,

termined. apply factors and §of

eration post-Book- part of principles

other review.

er reasonableness

Case Details

Case Name: United States v. Conrad Vernon Smith

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 26, 2007

Citation: 474 F.3d 888

Docket Number: 05-4425

Court Abbreviation: 6th Cir.