UNITED STATES of America, Plaintiff-Appellee, v. John R. TOLBERT, Jr., Defendant-Appellant.
No. 10-5688.
United States Court of Appeals, Sixth Circuit.
Feb. 13, 2012.
541
V.
For the reasons assigned above, we AFFIRM Hollin‘s conviction and sentence.
JULIA SMITH GIBBONS, Circuit Judge.
After a jury trial, defendant-appellant John Tolbert, Jr. was sentenced to fifty-four months’ imprisonment for possessing a 12-gauge short-barreled shotgun that was not registered to him in the National Firearms Registration and Transfer Record. On appeal, Tolbert argues that the district court judge improperly failed to recuse himself from sentencing Tolbert after witnessing an incident in which Tolbert assaulted a Deputy United States Marshal, that the district court committed clear error when it found that Tolbert was a member of a street gang, and that the sentence imposed was unreasonable because the district court failed to adequately take Tolbert‘s mental health issues into account and because the district court possibly imposed the sentence based on Tolbert‘s rehabilitative needs. For the reasons that follow, we affirm the sentence imposed by the district court.
I.
On February 4, 2009, Tolbert approached Miguel Pascual-Bartolome outside his Knoxville, Tennessee residence, put a gun to his chest, and demanded that he turn over everything he had in his pockets. A short while later, Tolbert also attempted to gain entry into the residence of Felipe Hernandez, who called 911. Officer William Muhlfeld arrived at the scene in response to the 911 call, and when he
On April 22, 2009, a federal grand jury charged Tolbert with possessing a 12-gauge short-barreled shotgun that was not registered to him in the National Firearms Registration and Transfer Record, in violation of
Tolbert filed a motion pursuant to
Before sentencing, the probation officer calculated the base offense level for a violation of
Tolbert was classified as a member of the “Rollin’ 60‘s” Crip Street Gang in paragraph five of the presentence investigation report (“PSR“). He objected to this classification, arguing that it was not accurate and he was not aware of any facts that would support such a conclusion. In response, the probation officer stated that the information about the defendant‘s gang affiliation was obtained from the Knox County Justice Information Management System, and information entered into this database is subjected to an extensive validation process that ensures its accuracy.
Tolbert also filed a motion for a downward departure and a variance prior to sentencing. He requested a downward departure or variance because of his extensive mental health issues, including a lack of impulse control, and because of his age and immaturity at the time of his offense. The government opposed the motion and argued that the serious danger that he posed to the public justified a sentence toward the upper end of the Guidelines range.
During the sentencing hearing, the court heard testimony from Knoxville Police Officer Jim Quick regarding Tolbert‘s classification as a gang member. Quick, who
The district court then heard testimony from Dr. Kathryn Smith, who had met with Tolbert on two occasions and reviewed his mental health records. She testified about Tolbert‘s mental health issues and his extensive mental health history. Smith concluded that, without proper medication, Tolbert posed a danger to himself and others.
The district court ultimately rejected Tolbert‘s request for a downward variance, reasoning that while it is true that he “suffers from depression, bipolar disorder, and other conditions that may make him more likely to act irrational [sic], [that] is not enough to justify a variance, especially when Defendant presents an extreme danger to society.” The court noted that Tolbert‘s actions had become increasingly violent over the years and held that the need to protect society outweighed the mitigating factor of Tolbert‘s reduced culpability because of his mental health issues. It found that nothing in Tolbert‘s history suggested that he would act more peacefully or responsibly as he got older; instead, it suggested the opposite—that “he has become increasingly more violent and out of control over the years.”
It then imposed a sentence of fifty-four months’ imprisonment, a sentence which was in the middle of the Guidelines range. The court explained that Tolbert‘s history demonstrated that he was “both out of control and dangerous” and that the sentence was “necessary to protect the public and deter Defendant from committing future crimes.” The court also found that the sentence provided Tolbert with an opportunity for mental health treatment and recommended that he be placed in the mental health facility in Butner, North Carolina, which, in the court‘s opinion, had the best reputation for providing mental health care.
When asked for objections to the sentence, defense counsel responded, “we would make an objection pursuant to [United States v.] Bostic[, 371 F.3d 865 (6th Cir.2004.)], that the denial of the variance ... [is] substantively and procedurally unreasonable.”
II.
Tolbert first argues that a reasonable person might question the impartiali-
A judge must recuse himself “if a reasonable, objective person, knowing all of the circumstances, would have questioned the judge‘s impartiality.” United States v. Sammons, 918 F.2d 592, 599 (6th Cir.1990) (citations and internal quotation marks omitted). The standard is an objective one, and a judge “need not recuse himself based on the subjective view of a party[,] no matter how strongly that view is held.” Id. (citation and internal quotation marks omitted). When a party cannot show partiality stemming from an extra-judicial source or personal bias, recusal is only necessary in rare circumstances. Liteky v. United States, 510 U.S. 540, 555 (1994). “[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. Moreover,
[t]he judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards [a party], who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings....
Tolbert‘s assault on the Deputy Marshal occurred after the jury had been released and after Judge Phillips had adjourned court. Judge Phillips was gathering paperwork from the bench when he heard the commotion and looked up, witnessing only the aftermath of the assault. As he was being led out of the courtroom, Tolbert also directed threats towards the judge and others present. Although these events technically occurred outside of a formal judicial proceeding, since court had been adjourned, they did occur immediately following a judicial proceeding, inside the courtroom, while the judge was still present. Because of their temporal and spacial proximity to Tolbert‘s trial, these events do not constitute an extra-judicial source of bias or partiality. Furthermore, “judicial activity” extends beyond conduct that occurs within the confines of formal judicial proceedings, such as hearings and trials. See e.g., Reed v. Rhodes, 179 F.3d 453, 469 (6th Cir.1999) (holding that a judge‘s ex parte communications with parties, which occurred outside any formal judicial proceeding, still arose in a “judicial context” and was not extra-judicial conduct). Accordingly, because Tolbert has not established that his actions created an extra-judicial source of partiality or that his conduct resulted in a judicial display of “deep-seated ... antagonism that would make fair judgment impossible,” Liteky, 510 U.S. at 555, Tolbert has not shown that recusal was necessary or that the district court abused its discretion in denying his motion.
Next, Tolbert contests the district court‘s finding that he was a member of a street gang. His classification as a gang member is a factual finding, which is reviewed for clear error. See United States v. Webb, 616 F.3d 605, 609 (6th Cir.2010) (“[A] factual finding is reviewed for clear error.“). “A finding is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (citation and internal quotation marks omitted).
Tolbert first argues that the district court violated
Tolbert further argues that the evidence presented regarding his alleged gang affiliation did not have sufficient minimal indicia of reliability, and thus, the district court‘s finding that he was a gang member, which relied on this evidence, was clearly erroneous. Assuming arguendo that Tolbert did not forfeit this argument by failing to raise it at his sentencing hearing, see In re Hood, 319 F.3d 755, 760 (6th Cir.2003) (“It is well-settled that this court will not consider arguments raised for the first time on appeal unless our failure to consider the issue will result in a plain miscarriage of justice.“) (citations and internal quotation marks omitted), we review the district court‘s finding for clear error. Although Tolbert raises some non-frivolous concerns about the reliability of the gang member classification system—at least to the extent of how this system was presented during the sentencing hearing—it is not enough to leave us with a “definite and firm conviction that a mistake has been committed.” Webb, 616 F.3d at 609.
Tolbert argues that there is no way to test the reliability of the information, such as his alleged affiliation with known gang members, for which he was awarded points that led to his classification as a gang member. Tolbert fails to acknowledge, however, the probation officer‘s response to his objection to the PSR, which stated that the information about the defendant‘s gang affiliation was obtained from the Knox County Justice Information Management System and that information entered into this database is subjected to an extensive validation process that ensures its ac-
IV.
Finally, Tolbert asserts that his sentence was unreasonable. This court reviews the district court‘s sentencing determination for both procedural and substantive reasonableness. See Gall v. United States, 552 U.S. 38, 51 (2007). A district court commits reversible procedural error, for instance, by “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
Next, this court considers whether the district court abused its discretion in selecting the length of the sentence. When a sentence falls within the Guidelines range, as here, a presumption of reasonableness applies. United States v. Vonner, 516 F.3d 382, 389 (6th Cir.2008) (en banc). “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.” Gall, 552 U.S. at 51. A sentence may be substantively unreasonable if, for example, it is selected arbitrarily, based on impermissible factors, fails to consider pertinent Section 3553(a) factors, or gives an unreasonable amount of weight to any pertinent factor. United States v. Webb, 403 F.3d 373, 385 (6th Cir.2005).
Tolbert argues that his mental illness and violent propensities are so inseparably intertwined that when the district court justified its denial of his motion for a downward variance based on the need to protect the public, this was actually a decision to impose a greater sentence because of his mental health issues. Tolbert cites United States v. Moses, 106 F.3d 1273 (6th Cir.1997), for the proposition that the appropriate remedy to address the potential danger he posed to the public was hospitalization pursuant to
Furthermore, the premise that Tolbert‘s mental illness and his propensity for violence are inextricably intertwined, while perhaps true as a matter of human psychology, is not a governing principle for a district court judge tasked with determining an appropriate sentence. In denying the motion for a downward variance, the district court found, “[i]t is true the Defendant suffers from depression, bipolar disorder, and other conditions that may make him more likely to act irrational [sic], but that within itself is not enough to justify a variance, especially when Defendant poses an extreme danger to society.” The court continued, “[i]n weighing the factors under Section 3553(a), the Court finds that the need to protect society outweighs this mitigating factor.” Thus, the court recognized that Tolbert‘s mental illness was a mitigating factor that potentially could justify a downward variance. The court balanced this mitigating factor with the need to protect the public and concluded that the need to protect the public was paramount. Contrary to Tolbert‘s argument, it was possible (and indeed necessary) for the district court to separate these concerns and weigh them against each other.
Finally, Tolbert argues that the district court based its sentence on an impermissible factor: his rehabilitative needs. The Supreme Court recently held that “a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 2393, 180 L.Ed.2d 357 (2011); see also United States v. Brooks, 431 Fed.Appx. 460, 460 (6th Cir.2011) (unpublished) (finding that a district court‘s statement that the defendant “need[ed] more structure and rehabilitation very much” suggested the possibility that the sentence was impermissibly based on the defendant‘s rehabilitative needs) (alteration in original) (internal quotation marks omitted). The Supreme Court in Tapia also held, however, that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs. To the contrary, a court properly may address a person who is about to begin a prison term about these important matters.” 131 S.Ct. at 2392.
In the present case, after recounting how Tolbert had become increasingly violent over the years, the district court stated, “Defendant is both out of control and dangerous. The Court finds that the sentence in this case is necessary to protect the public and deter Defendant from committing future crimes.” The court then found that “the sentence provides Defendant with an opportunity for substance abuse treatment” and that “the sentence provides Defendant with an opportunity for mental health treatment.” (emphasis added). The district court then imposed the fifty-four month sentence, concluding, “[t]he sentence imposed provides just punishment for the offense while affording Defendant an opportunity to rehabilitate himself.” (emphasis added). The district court appears to have justified the sentence based on the need to protect the
In summary, the district court imposed a sentence of fifty-four months’ imprisonment, which was within the range recommended by the Guidelines and thus was presumptively reasonable. Moreover, the district court did not select this sentence arbitrarily, base the sentence on impermissible factors, fail to consider relevant sentencing factors, or give an unreasonable amount of weight to any pertinent factor. See United States v. Camiscione, 591 F.3d 823, 832 (6th Cir.2010) (citations omitted). Thus, the sentence imposed by the district court is entitled to deference, and Tolbert has failed to show that his sentence was substantively unreasonable.
V.
For the reasons provided above, we affirm the district court‘s judgment. Tolbert has failed to establish that the district court judge abused his discretion by failing to recuse himself from sentencing, that the court‘s finding that he was a member of a street gang was clearly erroneous, or that his sentence was procedurally or substantively unreasonable.
JULIA SMITH GIBBONS
UNITED STATES CIRCUIT JUDGE