United States v. John Booker, Jr.United States v. John Booker, Jr.
Decided and Filed: April 14, 2021
Before: GIBBONS, COOK, and LARSEN, Circuit Judges.
COUNSEL
OPINION
LARSEN, Circuit Judge. John Booker pleaded guilty to one count of distributing a controlled substance in violation of
I.
In spring 2019, an undercover police officer was investigating a suspect named Julius Walker for narcotics offenses. The officer arranged on several occasions to purchase methamphetamine from Walker. John Booker accompanied Walker to one of these pre-arranged sales, and it was Booker who handed the officer Walker‘s drugs. Booker used this opportunity to let the officer know that he could offer methamphetamine at a better price. Booker then gave the officer his cell phone number. Over the course of the next month, Booker sold methamphetamine to the officer on three separate occasions.
Things unraveled for Booker at his fourth planned sale to the officer. Booker noticed police cars at the initial planned meeting location. He ultimately ended up fleeing, first by car—with a passenger and her two-year-old daughter in tow and then on foot. Police eventually caught up with Booker. Once they apprehended him, officers dialed the phone number that Booker had used to arrange sales with the undercover officer. Booker‘s cell phone rang. He was arrested.
A federal grand jury indicted Booker on four counts of distributing methamphetamine in violation of
II.
Booker argues that he should not have been sentenced as a career offender and that the district court did not adequately explain its decision to apply the enhancement. Both claims fail.
A.
Because Booker challenged his career-offender status below, we review the application of this enhancement de novo. United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per curiam). To be a career offender, a defendant must have at least two prior felony convictions that qualify as “controlled-substance offenses” or “crimes of violence.” United States v. Garth, 965 F.3d 493, 495 (6th Cir. 2020) (citing U.S.S.G. § 4B1.1). The defendant‘s instant offense of conviction must also fall into one of those categories.
Booker argues that his prior conviction under
However, Booker admits that binding precedent forecloses his argument with respect to the Michigan statute. See United States v. Thomas, 969 F.3d 583, 585 (6th Cir. 2020) (per curiam). Still, he suggests that we have not yet decided whether the federal statute qualifies as a predicate offense. Yet our prior reasoning with regard to the Michigan statute maps squarely onto
In United States v. Thomas, we held that convictions for “delivery” under
At first blush, that reasoning might spark some confusion. If the Guidelines and relevant statutes define predicate offenses to include the attempted transfer of a controlled substance, then what of the
Havis addressed Tennessee‘s definition of “delivery,” which is substantially identical to the Michigan and CSA definitions. See 927 F.3d at 384 (citing
definition of “controlled substance offense” in U.S.S.G. § 4B1.2(b) includes attempt crimes, and we held that it does not. Id. at 387.
But we‘ve since determined that the parties’ assumption in Havis was wrong. United States v. Elliott, 835 F. App‘x 78, 81 (6th Cir. 2020); Thomas, 969 F.3d at 585. Federal law and Michigan law both codify attempted distribution or delivery separately from the completed offenses. See
It would be remarkable if Booker were right that
controlled substance under
B.
Booker next argues that the district court committed procedural error by failing to address his argument that
The district court specifically rejected Booker‘s argument at sentencing. The court explained that it would “not make any sense whatsoever” to find that the career-offender Guidelines “do[] not include 401 convictions under the federal code.” This statement was a reference to § 401 of the CSA, which is codified in
Booker also complains that the district court did not expressly respond to his (somewhat puzzling) argument that our decision in Costo v. United States, 904 F.2d 344 (6th Cir. 1990), requires a different result. Costo involved a double-jeopardy issue. Id. at 348. We held that attempted distribution of a controlled substance does not require any element that completed distribution does not. Id. That holding has no bearing on whether the least culpable conduct criminalized by the federal statute outlawing completed distribution qualifies as a controlled-substance offense. Below, the district court explained that Judge Sutton‘s opinion concurring in the denial of en banc reconsideration in Havis and “[c]ongressional intent as outlined in
III.
Booker next challenges the special conditions of his supervised release. The district court crafted special conditions mandating that Booker do the following during his six-year term of supervision: (1) provide his probation officer “any requested financial information” and allow his probation officer to release that information to the United States Attorney‘s Office; (2) comply with a nightly curfew; (3) refrain from the use or possession of controlled substances, including marijuana; (4) refrain from the use or possession of alcohol and “not frequent any establishments whose primary purpose is the sale and serving of alcohol“; (5) participate in a program of testing and treatment for substance abuse and “pay at least a portion of the cost, according to his ability to pay, as determined by his probation officer“; (6) submit to reasonable probationary searches; (7) comply with certain employment or community service benchmarks; and (8) not own any “cell phone or other electronic device” without the permission of his probation officer and subject to other restrictions.
A.
Booker argues that the district court “inadequately explained its reasoning for imposing these special conditions” and “fail[ed] to analyze the conditions using the factors in
For a sentence to be procedurally reasonable, “the district court [must] state its rationale for mandating special conditions of supervised release in open court at the time of sentencing.” United States v. Henry, 819 F.3d 856, 874 (6th Cir. 2016) (internal quotation marks and citation omitted). The district court, in so doing, is required to consider factors “specified in
(“In outlining its reasons for imposing the sentence of incarceration . . . the district court was also outlining the reasons supporting the [term] of supervised release, even though the court did not do so explicitly.” (alterations in original) (internal quotation marks and citation omitted)). In addition, an inadequate explanation is harmless error “if the reasons for imposing the special conditions are ‘clear from the record.‘” Henry, 819 F.3d at 874 (quoting United States v. Collins, 799 F.3d 554, 599 (6th Cir. 2015)).
The district court provided a thorough analysis of the
The district court had no need to tie its discussion of the sentencing factors explicitly to Booker‘s supervised release conditions. See Henry, 819 F.3d at 874; Babcock, 753 F.3d at 593; Zobel, 696 F.3d at 572. The district court‘s concerns about Booker‘s risk of recidivism and the need to promote public safety formed the basis for both the prison term and the supervised release conditions it imposed, as the nature of the selected conditions makes clear. See United States v. Arnold, 549 F. App‘x 491, 496 (6th Cir. 2013); Zobel, 696 F.3d at 572; Presto, 498 F.3d at 419. The district court manifestly designed these conditions to steer Booker away from his prior criminal activities and to facilitate effective monitoring by his probation officer. Because
the district court provided an adequate explanation for these special conditions, this component of Booker‘s sentence was not procedurally unreasonable.1
Booker suggests that the district court had an additional duty to explain its imposition of a probationary search condition because the Guidelines only expressly recommend this measure in relation to sex offenses. See U.S.S.G. § 5D1.3(d)(7)(C).
Even if we agreed with Booker that the district court‘s explanation was inadequate, any error would be harmless because the record demonstrates why the district court found each condition necessary. See Henry, 819 F.3d at 874. As the district court said, Booker‘s proclivity for returning to criminal conduct shows that he “ha[d] not taken to heart the lessons that he learned from [his] prior convictions.” The district court also noted the need to protect the public from the deleterious effects of drug distribution, observing that methamphetamine has been “a major problem” in the district. We find that all of Booker‘s special supervision conditions are tailored toward dissuading him from returning to his old unlawful practices and protecting the public from similar criminal acts. For example, the restriction on cell phone usage harkens back to Booker‘s regular use of a cell phone to arrange drug sales. The record indicates that any error
in the district court‘s explanation of Booker‘s special supervision conditions was harmless,2 see Collins, 799 F.3d at 599; United States v. Berridge, 74 F.3d 113, 119 (6th Cir. 1996), and certainly was not plain error, see United States v. Ziska, 602 F. App‘x 284, 293-94 (6th Cir. 2015).
None of the cases that Booker cites changes this result. In United States v. Inman, 666 F.3d 1001, 1004-06 (6th Cir. 2012) (per curiam), we remanded for the district court to reconsider supervised release conditions that lacked any apparent relation to the criminal conduct at issue. (explaining that the district court imposed a lifetime ban on the consumption of alcohol even though “[n]othing in the record suggest[ed] that Inman ha[d] any problem with alcohol or drug[s]” and imposed a financial disclosure requirement where “Inman‘s crime was not financial in nature,” nor a crime that benefited him financially, such as drug trafficking); see also Zobel, 696 F.3d at 572 (distinguishing Inman). Similarly, we found remand necessary in United States v. Maxwell because “nothing before the district court was said to have linked [the] activities [prohibited by the release conditions] to the defendant‘s offenses.” 483 F. App‘x 233, 239 (6th Cir. 2012). In United States v. Thompson, the government conceded that “the district court‘s total failure to articulate any basis for the lengthy term of supervised release or the onerous special conditions” was plain error. 509 F. App‘x 449, 453 (6th Cir. 2012). And finally, in United States v. Dotson, we found an “absence of any statement that set[] forth the district court‘s actual rationale” for imposing certain broad restrictions. 715 F.3d 576, 588 (6th Cir. 2013) (quoting Maxwell, 483 F. App‘x at 240). Dotson did not acknowledge our earlier decisions, which establish that a district court may “engage[] in a single consideration of the sentencing factors . . . embrac[ing] both the incarceration sentence and the supervised release term.” Presto, 498 F.3d at 419; see Zobel, 696 F.3d at 572. Nor did Dotson grapple with controlling precedent applying plain-error or harmless-error review in the relevant context. See, e.g., United States v. Kingsley, 241 F.3d 828, 836-37 (6th Cir. 2001); Berridge, 74 F.3d at 119.
Booker‘s arguments therefore are not persuasive, and he has failed to establish that the district court erred, let alone plainly.
B.
Finally, Booker argues that the special supervised release conditions listed in the district court‘s written judgment of conviction include greater restrictions on his phone usage than those announced at sentencing. “[W]hen an oral sentence conflicts with the written sentence, the oral sentence controls.” United States v. Denny, 653 F.3d 415, 421 (6th Cir. 2011) (alteration in original) (quoting United States v. Penson, 526 F.3d 331, 334 (6th Cir. 2008)). The oral sentence takes precedence because “a defendant is present only when being sentenced from the bench. Because criminal punishment affects the most fundamental human rights sentencing should be conducted with the judge and defendant facing one another and not in secret.” Id. (quoting Penson, 526 F.3d at 334).
Even though Booker raised no objection to the written judgment below, this claim is not subject to plain-error review; Booker could not have raised it during his sentencing hearing before the written judgment had been issued. See United States v. Carpenter, 702 F.3d 882, 884 (6th Cir. 2012); United States v. Logins, 503 F. App‘x 345, 348-49 (6th Cir. 2012); see also
Here, we find no discrepancy. At Booker‘s sentencing hearing, the district court described the disputed condition as follows:
[Booker] is not to possess a cell phone or other electronic device without the prior permission of his probation officer. If he is given permission to have a cell phone or other electronic device, the device must be in his name or a name approved in advance by his probation officer, and he shall provide the bill for the device with each monthly report.
The district court‘s written judgment divided this condition into two provisions that are somewhat more detailed:
You must not possess or be the primary user of any cellular phone without prior permission from the probation officer. If given permission to use/possess a cell phone, you must provide the number to the probation officer and the phone must be maintained in your name or another name approved in advance by the probation officer.
You must provide the probation officer with your monthly cellular and home telephone bills with each monthly report form and must report any cellular telephone you have used or own on each report form.
The oral and written conditions “[b]oth convey the same message.” United States v. Lewis, 565 F. App‘x 490, 498 (6th Cir. 2012). Booker was only to have phone access with his probation officer‘s permission and, if given permission, would be subject to certain forms of monitoring. Nevertheless, Booker claims to spot four differences: “(1) in addition to not possessing a cell phone (without prior approval), he must also not be the ‘primary user’ of a phone; (2) he must provide the number to the probation officer; (3) he must provide home telephone bills; and (4) he ‘must report any cellular telephone [he has] used or own[s] on each report form.‘” (Alterations in original.) None of these purported distinctions is meaningful. Booker would need to “possess” a cell phone to be its primary user. His phone number would presumably appear on the bills he is required to submit to his probation officer. The district court‘s oral pronouncement covered any “cell phone or other electronic device,” including a home phone. (Emphasis added.) The oral condition contemplated that Booker would need to make disclosures in his “monthly report,” and the requirement that the report list any cell phone Booker owns or has used merely formalizes the enforcement of this condition. This court and others have found no discrepancy in written supervision conditions that use different language to impose substantially identical requirements. See, e.g., United States v. Thomas, 830 F. App‘x 420, 423-24 (5th Cir. 2020) (“[W]hen the pronouncement explicitly refers to the condition, despite wording it differently[,] . . . no conflict results.“); United States v. Buchanan, 820 F. App‘x 401, 405 (6th Cir. 2020); United States v. Gaynor, 530 F. App‘x 536, 542 (6th Cir. 2013); Lewis, 565 F. App‘x at 498.
Booker identifies two unpublished decisions where we found a written supervised release condition to conflict with the conditions announced at sentencing. See United States v. Dean, 657 F. App‘x 503, 507-08 (6th Cir. 2016); United States v. Hall, 669 F. App‘x 297, 298 (6th Cir.
2016) (per curiam). Neither case does him any good. In both, the government conceded that plain error occurred, and we offered no further analysis. See Dean, 657 F. App‘x at 508; Hall, 669 F. App‘x at 298. Each case involved a written judgment that required the defendant to pay treatment costs that the district court entirely failed to mention at sentencing. See Dean, 657 F. App‘x at 508; Hall, 669 F. App‘x at 298; see also Hall‘s Br. at 20, (No. 15-6202), 2016 WL 1084879, at *20 (explaining the discrepancy in Hall). But see Thomas, 830 F. App‘x at 422-23 (upholding a requirement, stated for the first time in a written judgment, that the defendant bear some costs of court-ordered treatment); United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003) (per curiam) (same). By contrast, we find that the district court below did not impose any new conditions in its written judgment.
We AFFIRM.
***