United States v. LambUnited States v. Lamb
Finally, because we conclude that Officer Harper was in the residence in violation of the Fourth Amendment, we need not reach the second issue: whether seizure of the cell phone was justified either by exigent circumstances or the “plain view” exception to the Fourth Amendment. The government concedes that exigent circumstances did not justify the initial entry and, that being the case, the subsequent seizure of evidence was tainted.
III.
The judgment of the district court is vacated.
CLELAND, District Judge.
Timothy Lamb entered a plea of guilty to four counts involving possession and transportation of child pornography and was sentenced to 210 months imprisonment. He appeals this sentence as procedurally unreasonable because the district court did not expressly address the request for a downward variance based upon his history of heart disease. Lamb did not object to this aspect of his sentence at trial, and we review only for plain error. We AFFIRM.
I. BACKGROUND
In March 2005, the National Center for Missing and Exploited Children was contacted by an internet hosting company with information that it had discovered images of child pornography uploaded to a group site hosted on its network. It appeared the group had been used to distribute and trade such images, and the hosting company immediately disabled the group. Upon the issuance of a subpoena, the Federal Bureau of Investigation obtained the internet protocol addresses and transaction logs of group members. Tracing one of these addresses back to its source led the FBI to Lamb‘s residence in Louisville, Kentucky. On September 29, 2005, FBI agents searched the residence and found an immense collection of pornography, containing approximately 17,000 images and 135 videos of child pornography. When confronted, Lamb confessed to uploading images to and downloading images from the group.
A five-count indictment was returned charging Lamb with three counts of knowingly transporting child pornography,
A presentence report was produced, which calculated a total offense level of 37 under the U.S. Sentencing Guidelines. Based upon the total offense level and Lamb‘s lack of a criminal history, the presentence report calculated the Guidelines range of 210-262 months and noted the statutory maximum of 240 months. The report also noted Lamb‘s history of heart disease, including a heart attack suffered in May, 2000. In its sentencing memoran
On April 17, 2007, the district court sentenced Lamb to 210 months imprisonment and ten years of supervised release. At the hearing, the testimony of two expert witnesses was presented concerning the number of images and Lamb‘s risk of recidivism. The government and Lamb reiterated the arguments set out in their sentencing memoranda. Both addressed at some length Lamb‘s health issues. After lamenting the difficulty of maintaining uniformity in sentences for child pornography offenses, the court noted the “significant number of images that are involved” in explaining the sentence. The court also discussed and rejected the government‘s argument that the non-pornographic photographs of neighborhood children indicated predatory behavior. Finally, the court made a blanket statement that it had considered the Guidelines and the
II. ANALYSIS
Lamb claims his sentence is procedurally unreasonable because the court failed to consider the
A. Standard of Review
Lamb‘s appeal challenges only the sufficiency of the sentencing court‘s explanation of his sentence. Because Lamb failed to object to the explanation when asked whether he had “any objections to the sentence pronounced not previously [] raised on behalf of the defendant” at the conclusion of sentencing, a plain error standard applies. See Vonner, 516 F.3d at 386; United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). Application of this standard is contested by Lamb, who asserts that the objection was preserved by his earlier request for a variance. Lamb‘s
Lamb contends that raising the issue of his health in both his sentencing memorandum and during the sentencing hearing preserves the objection. If Lamb were objecting to the discretionary rejection of the request for a variance, his contention would be sound. However, Lamb objects to the alleged failure of the district court even to consider his request for variance. The argument in Vonner is directly analogous. 516 F.3d at 382. At his sentencing hearing, Vonner argued that the court should apply a downward variance to his sentence because he had sustained abuse and neglect during his childhood. The district court then implicitly rejected this argument by saying only that it considered “the history and characteristics of the defendant,” and it proceeded to inquire whether there were any objections to the sentence that had not been previously raised. Vonner‘s counsel voiced no objections. On appeal, however, Vonner argued that the district court had not adequately considered his request for a downward variance or explained its decision to reject the variance. This court, sitting en banc, held that, under Bostic, Vonner had waived his objection by not objecting to the alleged failure to consider his history and characteristics. As noted in Vonner, it is an absurdity to object to a court‘s failure to consider a
In the instant case, Lamb first raised a request for variance based upon his health problems in his sentencing memorandum and reiterated it at the sentencing. By the conclusion of the hearing, however, the court had not expressly addressed the health concerns in explaining the sentence imposed. When first asked whether he had any other objections, however, counsel asked only that Lamb be housed near his elderly and ailing mother, which the court agreed to recommend. Asked a second time, Lamb‘s counsel replied “no objection, Your Honor.” Thereafter, Lamb did in fact raise an issue regarding the sentence imposed for the count of possession, which exceeded the statutory maximum sentence. The court recognized this and clarified the sentence for this count capped at 120 months, to run concurrently with the three counts for transporting child pornography. Before concluding the sentencing hearing, the court asked a third time, and no objection was voiced. The court thrice afforded Lamb the opportunity to object, and he thrice failed to do so. Now, for the first time, Lamb seeks to have this court review the sentence based upon an objection never made, arguing the district court failed
As recently summarized by the Supreme Court,
an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error“; (2) the error is “clear or obvious, rather than subject to reasonable dispute“; (3) the error “affected the appellant‘s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings“; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (quoting Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009)); see also Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). “At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Olano, 507 U.S. at 734; accord Johnson, 520 U.S. at 467. When reviewing sentences for plain error, the court applies “a deferential standard in which sentences are reversed only in ‘exceptional circumstances . . . where the error is so plain that the trial judge . . . [was] derelict in countenancing it.‘” Simmons, 587 F.3d at 365 (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir.2006)).
B. No Plain Error
Turning to the first element of plain error analysis, there must be error before there can be plain error. Although the Guidelines are merely advisory after Booker, district courts are required to consider the correctly calculated Guidelines range when sentencing. United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). “[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (citing Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)); accord United States v. Bolds, 511 F.3d 568, 579 (6th Cir.2007). The sentencing court must further consider the factors listed in
The district court did not err in declining to discuss its reasoning for not varying Lamb‘s sentence due to his poor health. Although the better practice may be to state that the court has considered and rejected the request, “there is a sizeable gap between good sentencing practices and reversibly bad sentencing practices.” Vonner, 516 F.3d at 389. All that a sentencing court must do is consider and decide all clearly presented arguments for departure or variance. Rita, 551 U.S. at 358; Vonner, 516 F.3d at 388. “When a defendant raises a particular[, nonfrivolous] argument in seeking a lower sentence, the record must reflect both that the district court considered the defendant‘s argument and that the judge explained the basis for rejecting it,” United States v. Wallace, 597 F.3d 794, 803 (6th Cir. 2010) (citations omitted) (alteration in original), but the requisite indication of consideration by the court varies in proportion to the complexity of the argument, Rita, 551 U.S. at 356-57; Vonner, 516 F.3d at 387; Simmons, 587 F.3d at 362. Regardless of whether it may be error to grant a variance without some indication of the reasoning, discussion of all rejected requests for variances is not required. “Although Congress requires a court to give ‘the reasons’ for its sentence,
At the sentencing hearing, defense counsel repeatedly mentioned Lamb‘s heart problems, arguing for a variance on that basis.2 This was Lamb‘s primary argument for a lower sentence. The government likewise addressed the issue, citing a string of cases wherein harsh sentences were imposed despite the defendants’ ages or infirmities.3 Directly responding to Lamb‘s request, the government noted that his condition was not unique and “his medical needs can be met by the Bureau of Prisons.” After hearing statements by both sides, the court proceeded to sentence Lamb to 210 months, the lowest point within the Sentencing Guidelines range.
Although the court did not discuss at length Lamb‘s routine argument for a variance, it did refer to the cases mentioned by the government. In fact, the court lamented the lack of uniformity in sentences imposed for conduct similar to that of Lamb.4 The number and type of images involved were discussed by the court, as well as Lamb‘s role in trading images. The court considered these aspects of the offense and determined “this is the type of sentence that should be given within the sentencing guidelines.” The court did not stop with that pronouncement; it further discussed and rejected the government‘s argument for a longer sentence based upon the non-pornographic photographs of neighborhood children. Under such circumstances, it seems that the court simply found that argument lacking sufficient weight to warrant any more particularized consideration.
Where a matter is as conceptually simple as [a request for variance based upon health, fear of retaliation in prison, and military record], and the record makes clear that the sentencing judge
Rita, 551 U.S. at 359. Following Rita, this court has similarly found that a sentencing court need not engage in a rote recitation of every conceivable ground for variance requested by a defendant. E.g., United States v. Locklear, 631 F.3d 364, 370-71 (6th Cir.2011); United States v. Brooks, 628 F.3d 791, 798 (6th Cir.2011); United States v. Martinez, 588 F.3d 301, 327 (6th Cir.2009); Simmons, 587 F.3d at 361-62; Vonner, 516 F.3d at 388. While the district court would have done well to have mentioned and explained its rejection of the argument, nothing in the record suggests the court failed to consider the request for a downward variance. Indeed, the court indicated that it considered the other arguments and made reference to the cases presented by the government for comparison. Therefore, Lamb has not shown that the district court erred in not addressing his request for a variance based upon his health concerns.
Even if we were to find that the district court erred in failing to properly address the claimed ground for a variance, Lamb has not shown that this is a “clear or obvious” error. Previous cases have recognized that routine health problems such as that presented in this case do not require extensive analysis by the sentencing court. See, e.g., Locklear, 631 F.3d at 370-71; United States v. Carpenter, 359 Fed.Appx. 553, 558 (6th Cir.2009); United States v. Ivey, 307 Fed.Appx. 941, 943-44 (6th Cir.2009). As noted by the government at sentencing, the Bureau of Prisons is equipped to treat one of the most common significant ailments of the modern world. The presentence report confirms that Lamb was receiving medical treatment while awaiting sentencing. Lamb offers no reason that his ill health necessitates a downward variance, nor does he argue that his health is unusually poor. Instead, he presented a routine argument for a reduced sentence because he has a higher statistical probability of premature death than an abstract ideal of a healthy individual of his age. This is precisely the sort of conceptually simple argument that need not be extensively addressed by the court in sentencing. See Rita, 551 U.S. at 356-57; Vonner, 516 F.3d at 387.
We have repeatedly held that “a ritualistic incantation of the
The judgment of the district court is AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee, v. Steven GILMORE, Defendant-Appellant.
No. 10-5055.
United States Court of Appeals, Sixth Circuit.
July 6, 2011.
Before: KEITH, GIBBONS, and WHITE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge.
Steven Gilmore pled guilty to aggravated identity theft and access device fraud. He appeals his sentence of forty-two months’ imprisonment. Gilmore claims that the district court improperly calculated his guidelines range by assessing a sixteen-level increase in accordance with
I.
In December 2007, police in Hartsville, Tennessee, received a complaint from an individual who stated that his debit card had been used without his permission. Investigating officers subsequently interviewed Anthony Michael Atkins, who had been previously convicted of access device fraud. Atkins confessed that he had im-