UNITED STATES of America, Plaintiff-Appellant, v. Henry A. BOSTIC, Defendant-Appellee.
No. 02-6437.
United States Court of Appeals, Sixth Circuit.
Argued: Jan. 28, 2004. Decided and Filed: June 17, 2004.
371 F.3d 865
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Our thorough review of the facts and arguments in this case leads us to the firm conclusion that Ware‘s petition was properly denied. Because we are in accord with the district court‘s persuasive and thorough reasoning with respect to each of the claims at issue in this appeal, we adopt that reasoning and find it unnecessary to offer any further analysis. Therefore, the district court‘s judgment is AFFIRMED.
John O. Gibson (argued and briefed), Loudon, TN, for Defendant-Appellee.
Before: MARTIN, RYAN, and MOORE, Circuit Judges.
OPINION
MOORE, Circuit Judge.
The government, with the approval of the Solicitor General, appeals from the sentence imposed by the district court on Henry Alvin Bostic (“Bostic“). Pursuant to a written plea agreement, Bostic pleaded guilty to firearms charges. At Bostic‘s sentencing hearing, the district court granted a downward departure under United States Sentencing Guideline (“U.S.S.G.“)
For the following reasons, we VACATE Bostic‘s sentence and REMAND for re-sentencing.
I. BACKGROUND
The Bureau of Alcohol, Tobacco and Firearms (“ATF“) investigated Bostic from June 9, 2000 through June 5, 2002. During this period, Bostic “regularly and willfully engaged in the business of selling firearms,” but “did not have, and has never had a federal firearms license.” J.A. at 46 (Presentence Report (“PSR“) ¶ 14). Over the course of this investigation, “ATF special agents and confidential informants purchased a total of 24 firearms from [Bostic] on 20 different occasions.” J.A. at 46 (PSR ¶ 15). Most of these transactions took place at Bostic‘s residence. Bostic “sold firearms to convicted felons and to a resident of a state other than the state in which [Bostic] resides.” J.A. at 47 (PSR ¶ 16). Bostic was also “observed selling more firearms than those purchased by the ATF.” J.A. at 47 (PSR ¶ 16).
“On June 27, 2001, an ATF special agent sent [Bostic] a certified letter advising [him] of the federal firearms laws, including the provision prohibiting a person who is not a federal firearms licensee from engaging in the business of dealing in firearms.” J.A. at 47 (PSR ¶ 18). On June 30, 2001, Bostic signed a return receipt indicating that he had received the letter. On July 5, 2001, an informant went to Bostic‘s house and purchased a firearm from Bostic. At that meeting, Bostic told the informant about the warning letter that he had received from the ATF regarding his firearms dealing.
On June 5, 2002, a grand jury returned a nine-count indictment charging Bostic with various firearms offenses. Count One of the indictment charges Bostic with willfully engaging in the business of dealing in firearms without a license, including but not limited to the guns identified in the remaining counts of the indictment, “from on or about June 9, 2000, up to and including June 5, 2002,” in violation of
On June 6, 2002, ATF agents arrested Bostic and searched his residence pursuant to a warrant. During that search, ATF agents seized six firearms. Bostic told ATF agents that “he had bought, sold and traded firearms for approximately 20 years.” J.A. at 47 (PSR ¶ 20). Bostic also told ATF agents that he had received the warning letter “and understood the letter to mean he could not buy and sell numerous firearms without a license.” J.A. at 47 (PSR ¶ 20). According to the PSR, Bostic “stopped buying firearms that required filling out paperwork, but thought he could still trade guns and make occasional sales.” J.A. at 47 (PSR ¶ 20).
Also on June 6, 2002, Bostic was released on a $20,000 unsecured bond. Thereafter, Bostic and the government entered into a written plea agreement whereby Bostic agreed to plead guilty to Counts One and Two of the indictment, and the government agreed to dismiss Counts Three through Nine of the indictment and not to oppose a three-level reduction in offense level for acceptance of responsibility. On August 19, 2002, Bostic pleaded guilty to Counts One and Two.
On September 28, 2002, prior to sentencing, Bostic filed a motion for a downward departure pursuant to
At this time [Bostic] remain[s] in stable condition. He, however, has serious underlying medical problems.
It is my understanding from discussion with [Bostic‘s attorney] that he is facing approximately two years in prison for selling guns without a license. At this time imprisonment would adversely affect his life expectancy and also his health. Due to his coronary artery disease I would expect him to have more recurrences of his atrial fibrillation. He
will be under medical therapy for the remainder of his life and we can reasonably expect that there will be intermittent periods of hospitalization.
J.A. at 18. This letter is the only medical evidence—indeed it is the only evidence—that Bostic introduced in support of his motion.
In Bostic‘s PSR, prepared on October 10, 2002, the probation officer assigned Bostic a base offense level of fourteen in accordance with
In the “Physical Condition” section of the PSR, the probation officer reported:
[Bostic] is treated by John D. Arnett, M.D., Knoxville, Tennessee. [Bostic] has atherosclerotic cardiovascular disease, anemia, asbestosis, hypertension, type-II diabetes and chronic obstructive pulmonary disease from tobacco use. He is prescribed Ranitidine, Combivent, Serovent, Cordarone, and Hyzaar. The Cordarone is prescribed for atrial fibrillation. The defendant underwent left heart catheterization on May 14, 2002.
J.A. at 50 (PSR ¶ 51). Then, in the “Factors that May Warrant Departure” section of the PSR, the probation officer noted,
[Bostic] is 82 years old and has numerous health problems. Pursuant to
USSG § 5H1.1 , “Age may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.”
J.A. at 54 (PSR ¶ 70). The probation officer, however, stated that she was not necessarily making a recommendation for departure. Each party filed a notice of no objection to the PSR.
At the sentencing hearing, on November 6, 2002, the government‘s counsel mentioned the defendant‘s downward-departure motion but failed to make an explicit objection. After acknowledging that Bostic pleaded guilty to Counts One and Two, the district judge read the maximum penalties for those counts. The district court then asked Bostic whether he had read the PSR and whether the PSR was accurate; Bostic responded in the affirmative. The court and the government‘s counsel then engaged in a brief exchange, during which the government‘s counsel stated that he would like to present evidence regarding Bostic‘s offense conduct before the court ruled on Bostic‘s downward-departure motion. The government‘s counsel then introduced the ATF warning letter, played a tape of the conversation during which Bostic mentioned the letter, and introduced a transcript of that tape. After introducing
Following the government‘s introduction of evidence regarding the offense conduct, Bostic did not introduce any additional evidence supporting his motion for a downward departure. When the district judge asked what Bostic‘s medical problems were, Bostic‘s counsel stated, “[Bostic] has emphysema and heart trouble, Your Honor.” J.A. at 36 (Sentencing Hr‘g Tr. at 36).
The district court then granted a downward departure and sentenced Bostic “to five years of probation on each count to run concurrently” and a $6,000 fine. J.A. at 37. After explaining the conditions of Bostic‘s probation, the district court accepted the plea agreement, dismissed Counts Three through Nine, clarified the due date of the fine, and adjourned the sentencing hearing. The district court did not explicitly give the government an opportunity to object after it pronounced Bostic‘s sentence, nor did the government‘s counsel interrupt the district judge to object. On November 13, 2002, the district court entered a Judgment and Commitment Order detailing Bostic‘s sentence.1 The government filed a timely notice of appeal.
II. ANALYSIS
A. Jurisdiction
The district court had jurisdiction pursuant to
B. Standard of Review
The government asserts that, although it did not make a specific objection, it noted its opposition to Bostic‘s motion for a downward departure at the outset of the sentencing hearing and was not given an opportunity to argue its opposition either before or after the district court pronounced Bostic‘s sentence. The government argues that it should not be required to demonstrate plain error either because it adequately objected or because it was not given the opportunity to object.
We conclude that the government failed to object adequately in the district court to Bostic‘s motion for a downward departure. Bostic filed a motion for a downward departure on September 28, 2002. The government did not file any papers opposing that motion. At the sentencing hearing on November 6, 2002, after questioning Bostic about the PSR, the district court asked, “Now, what does the U.S. Attorney have to say about this?” J.A. at 34 (Sentencing Hr‘g Tr. at 4). In response, the government‘s counsel stated,
Your Honor, as the Court is I am sure aware, Mr. Gibson [Bostic‘s counsel] has filed a motion for downward departure pursuant to 5K2 based on the defendant‘s age, his health and he has attached several letters from members of the community asking the Court not to imprison him. Before the Court rules on that motion, I have a very brief evidentiary matter I would like to present to the Court.
J.A. at 34 (Sentencing Hr‘g Tr. at 4). The evidentiary matter to which the government‘s counsel was referring concerned the offense conduct, not Bostic‘s motion for
After presenting his evidence, the government‘s counsel stated, “I would just like to address the Court on the government‘s view on sentencing after we hear from Mr. Gibson, Your Honor.” J.A. at 35 (Sentencing Hr‘g Tr. at 5). This statement indicated to the district court that the government‘s counsel wished to speak, but it did not inform the district court or defense counsel of the government‘s position regarding the downward-departure motion.2
A party “must ‘object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection.‘” United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 1980) (quoting United States v. Fendley, 522 F.2d 181, 186 (5th Cir. 1975)), cert. denied, 449 U.S. 849 (1980); see also
We hold that the government‘s failure to object should not be excused in this case, and therefore, that we should review the district court‘s judgment for plain error. After reviewing the applicable procedural rules and circuit precedent, we conclude that the district court conducted the sentencing hearing in compliance with our existing precedent. Federal Rule of Criminal Procedure (“Rule“) 51(b) requires a party to object in order to preserve an issue for review, but excuses the failure to object if that party had no opportunity to do so. Rule 32(i)4 requires the court to allow the defendant, counsel for the defendant, and counsel for the government each an opportunity to speak. The cases that the government relies upon to support its argument that its failure to object should be excused differ from the case at bar in an important respect—in both of the cases cited by the government, the aggrieved
In this case, after reviewing the PSR, the district court asked, “Now what does the U.S. Attorney have to say about this?” J.A. at 34 (Sentencing Hr‘g Tr. at 4). Moreover, at the time the government was invited to speak, it was on notice that Bostic had moved for a downward departure; therefore, the district court gave the government a meaningful opportunity to object to Bostic‘s motion for a downward departure. It is true that the government indicated that it would like to address the district court later regarding the departure motion, and thereafter the government was not explicitly given an opportunity to do so. The district court, however, gave the government an opportunity to speak regarding sentencing and never prevented the government from addressing the departure issue, which is all that our existing precedent required.
Although we disagree with the concurrence‘s reading of our existing precedent and with its narrow understanding of “opportunity to object,” we think that the rule our colleague urges is a wise one. Therefore, we exercise our supervisory powers over the district courts and announce a new procedural rule, requiring district courts, after pronouncing the defendant‘s sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised.6 If the district court fails to provide the parties with this opportunity, they will not have forfeited their objections and thus will not be required to demonstrate plain error on appeal. If a party does not clearly articulate
Because existing precedent did not excuse the government‘s failure to object, and because we conclude that Bostic‘s sentence must be vacated regardless of the scope of our review, we will review the downward departure for plain error.7 See United States v. Barajas-Nunez, 91 F.3d 826, 830 (6th Cir. 1996). “A ‘plain error’ is an error that is clear or obvious, and if it affects substantial rights, it may be noticed by an appellate court.” Id.
C. Downward Departure
On appeal, the government contends that the district court erred by sentencing Bostic to probation without following the methodology required by the sentencing guidelines and requests that we vacate Bostic‘s sentence and remand this case for re-sentencing. The government points out that at the sentencing hearing, the district court did not state the number of levels it was departing downward or discuss the specific reasons why it thought probation was reasonable. The government next argues that the district court erred by failing to determine whether Bostic‘s age and infirmities made his case exceptional and would make incarceration inefficient and costly. The government requests that on remand Bostic be required to support his downward-departure motion with competent medical evidence, and that the district court be required to determine whether Bostic‘s impairments are exceptional, whether the Bureau of Prisons (“BOP“) can accommodate Bostic‘s impairments, and “whether home confinement may be more efficient and less costly.” Appellant‘s Br. at 27. Finally, the government argues that the district court abused its discretion in granting a downward departure based upon the present record. The government points out that Bostic was only hospitalized once in May 2002 for atrial fibrillation, that after hospitalization Bostic was in stable condition, and that as of sentencing Bostic had experienced no recurrence of his con-
Instead of countering the government‘s arguments that the district court failed to follow the methodology required by the sentencing guidelines, Bostic argues that the government‘s failure to object to the downward departure indicated to the district court that the government agreed with the court‘s methodology. Bostic also points out that the district court made the factual findings that imprisonment would adversely affect Bostic‘s life expectancy due to his age and infirmity and that Bostic will need medical attention and periodic hospitalization; Bostic argues that these findings were reasonable and were permissible bases for departure under the sentencing guidelines.
The first two factors that an appellant must prove in order to obtain reversal under plain error review are (1) that the district court erred and (2) that the error was plain. United States v. Olano, 507 U.S. 725, 732-34 (1993); see also United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998), cert. denied, 526 U.S. 1030 (1999).
At sentencing, the district court stated that it was granting a downward departure, “[b]ecause of [Bostic‘s] age and because of [Bostic‘s] infirmity and because of [Bostic‘s] health,” but did not specify the number of levels it was departing. J.A. at 37 (Sentencing Hr‘g Tr. at 7). The calculations in the PSR, which the district court adopted, set Bostic‘s total offense level at nineteen. To sentence Bostic as it did, to probation without home confinement, the district court had to reduce Bostic‘s offense level to eight, which is an eleven-level departure. See U.S.S.G. Ch. 5 Pt. A;
A district court‘s decision to depart downward is controlled by the following statutory provision:
(1) IN GENERAL.—Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range [determined by the guidelines] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.
Under the sentencing guidelines, age and health are disfavored factors that the district court may use as bases for granting a downward departure only in exceptional circumstances. See
Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Age may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.
(emphasis added). Section
Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.
(emphasis added). As these provisions make clear, age and physical condition are not prohibited considerations, but they are discouraged factors that justify a downward departure only in extraordinary situations.
In United States v. Johnson, 71 F.3d 539, 544-45 (6th Cir. 1995), cert. denied, 517 U.S. 1113 (1996), we vacated the defendant‘s sentence upon another ground, but also directed the district court on remand to make more specific findings regarding whether the defendant‘s medical condition was extraordinary and whether the BOP could accommodate the defendant. The sixty-five-year-old defendant in Johnson provided evidence of his medical condition in the form of a letter from his attending physician, who diagnosed the defendant “with diabetes, hypertension, hypothyroidism, ulcers, potassium losing enteropathy, and reactive depression,” and a letter from his psychiatrist, who diagnosed the defendant “with major depressive disorder.” Id. Additionally, both doctors were prescribing medication for the defendant and believed that incarceration would detrimentally affect the defendant‘s health. We noted “that an aged defendant with a multitude of health problems may qualify for a downward departure under
Similarly, in United States v. Tocco, 200 F.3d 401, 434-35 (6th Cir. 2000), we vacated the defendant‘s sentence upon another ground, but also directed the district court on remand to make more specific findings regarding whether the defendant‘s medical condition was extraordinary and whether the BOP could accommodate the defendant. The seventy-two-year-old defendant in Tocco had “arteriosclerotic disease, coronary artery disease, hypertension, renal insufficiency, labrynthitis, and diverticulosis,” and “required ‘periodic monitoring.‘” Id. at 434. We criticized the district court for relying solely upon the defendant‘s
By way of contrast, in United States v. Sabino, 274 F.3d 1053, 1078-79 (6th Cir. 2001), we upheld a three-level downward departure that was based upon several factors, including age. The seventy-two-year-old defendant in Sabino had “physical deficiencies ..., particularly ailments with his eyes and ears.” Id. at 1079. In upholding the downward departure, we reasoned that the departure was small and based upon several factors, including “the death of [the defendant‘s] wife a few months before sentencing; [the defendant‘s] age (72) at the time of sentencing; his physical deficiencies ...; the absence of any physical threat to others; the absence of a risk of flight; and the conclusion that [the defendant] played a minor role in the conspiracy.” Id.
Here, the district court effectively granted an eleven-level downward departure based upon Bostic‘s age and infirmities. As Tocco makes clear, age alone cannot justify a substantial downward departure. Tocco, 200 F.3d at 434. Additionally, the district court granted the downward departure based only upon one letter from Bostic‘s treating physician and the Physical Condition section of the PSR. Although numerous “physical infirmities” might justify a downward departure, Johnson and Tocco indicate that a doctor‘s letter and the “Physical Condition” section of the PSR are not sufficient evidence to justify a downward departure.9 Finally, the district court made no findings regarding whether Bostic‘s case is extraordinary, whether the BOP could accommodate Bostic, and whether home confinement would be equally efficient and less costly. Therefore, the district court erred by granting an eleven-level departure without sufficient evidence. If upon remand the evidence shows that Bostic‘s case warrants a departure, the district court must still find that the reasons justify the magnitude of the departure selected. Crouse, 145 F.3d at 792. Johnson and Tocco do not foreclose the possibility that Bostic‘s age and infirmities warrant a departure; however, it seems unlikely that his infirmities warrant an eleven-level departure. Because the case law requiring district courts to make the above factual findings and to justify the magnitude of a departure predates Bostic‘s sentencing, and because the district court utterly failed to do either, the district court‘s error was plain.
The final factors that an appellant must prove in order to obtain reversal under plain error review are (3) that the error affected substantial rights and (4) that “the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 734-37; see also Koeberlein, 161 F.3d at 949. A sentencing error affects substantial rights when “it affects the outcome of the case by substantially reducing the defendant‘s sentence.” Barajas-Nunez, 91 F.3d at 833. And a sentencing error that leads to a substantial departure affects the fairness and integrity of judicial proceedings be-
Here, the district court erred by granting a downward departure without making the requisite factual findings, and this error affected the government‘s and the United States citizens’ substantial rights because it drastically reduced Bostic‘s sentence from a term of imprisonment to a term of probation. See id. This error also affected the fairness and integrity of judicial proceedings because the district court disregarded the applicable sentencing guidelines and case law, and because Bostic received a significantly smaller sentence than might have been imposed upon a different defendant who committed the same crime under similar circumstances. See id.
Because the district court imposed Bostic‘s sentence in violation of the methodology required by the sentencing guidelines and applicable case law, we must vacate and remand.10 See id. at 834 (noting that district court‘s failure to justify the extent of a departure makes the decision virtually unreviewable).
III. CONCLUSION
We conclude that the district court committed plain error by granting an eleven-level downward departure without tying the departure to the framework of the sentencing guidelines or making the required findings of fact. Therefore, we VACATE Bostic‘s sentence and REMAND for re-sentencing.
RYAN, Circuit Judge, concurring.
While I agree that the defendant‘s sentence should be vacated, I do not join in the majority‘s holding that the government waived its objection to the defendant‘s sentence. In my view, the sentence should be vacated and the case remanded for resentencing because the prosecutor was not given a reasonable opportunity to be heard at the sentencing hearing in order to articulate his objection to the radical downward departure the defendant was seeking and ultimately received.
At the very outset of the sentencing hearing, the prosecutor acknowledged that the defendant had filed a motion for a downward departure and asked that he be allowed to address the court regarding the government‘s position on sentencing. He was never given that opportunity. Following the government‘s request to be heard, the district court engaged in a colloquy with the defendant and his attorney. In the midst of that colloquy, and without affording the Assistant U.S. Attorney an opportunity to speak, the district judge granted the motion for a downward departure, imposed the sentence, and abruptly left the bench.
My sister has characterized the prosecutor‘s request to be heard as being limited to an evidentiary matter concerning the defendant‘s offense conduct and that the
Our precedent is clear, that in cases such as this, “where the district court fails to provide an opportunity for objections after the pronouncement of a sentence, waiver should not be found.” United States v. Breeding, 109 F.3d 308, 310 (6th Cir. 1997). Moreover, where there is an explicit grant of authority for challenging a sentence and where the government does not have an opportunity to object following the pronouncement of sentence, there is no waiver. United States v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990). In the case before us, the explicit grant of authority for challenging the defendant‘s sentence is found in
The Government may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence—
...
(3) is less than the sentence specified in the applicable guideline range to the extent that the sentence includes a lesser ... term of imprisonment, probation, or supervised release than the minimum established in the guideline range....
With all due respect to my colleagues who see it differently, the record of this case does not call for the preparation of a lengthy published opinion, creating a new, rigid rule of sentencing law that further narrows and restricts the relatively limited discretion left to trial judges under the Sentencing Guidelines. The Federal Rules of Criminal Procedure and our existing case precedent sufficiently set forth the duties of the district court at sentencing and I strongly object to the adoption under our “supervisory power” of still another uncodified “procedural rule” telling district judges what to incant after sentencing a person.
This case appears to be nothing more than an uncharacteristic and inadvertent mistake by a highly respected district judge, who has conducted more rule-conforming sentencing proceedings in an exemplary fashion than he or we can count. Very likely, he simply forgot to do what he regularly does: ask both counsel if they had anything further to say. In my view, the prosecutor adequately put the district court on notice that the government objected to the motion for a downward departure. Accordingly, the proper standard of review is abuse of discretion. United States v. Tocco, 200 F.3d 401, 432 (6th Cir. 2000). I conclude that the district court abused its discretion by imposing a sentence without first giving the prosecutor an opportunity to address the court, after being earlier advised by the prosecutor that he “would just like to address the Court on the government‘s view on sentencing....”
The only appropriate remedy is to vacate the sentence and remand for resentencing.
Notes
A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party‘s objection to the court‘s action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.
Fed. R. Crim. P. 51(b) (emphasis added).At sentencing, the court:
...
(C) must allow the parties’ attorneys to comment on the probation officer‘s determinations and other matters relating to an appropriate sentence....
Fed. R. Crim. P. 32.Rule 32(i)(4)(A) provides:
Before imposing sentence, the court must:
(i) provide the defendant‘s attorney an opportunity to speak on the defendant‘s behalf;
(ii) the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and
(iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant‘s attorney.
Id. (emphasis added).