UNITED STATES of America, Plaintiff-Appellant, v. Samuel F. COLLINGTON, Defendant-Appellee.
No. 05-4054
United States Court of Appeals, Sixth Circuit.
Argued: June 26, 2006. Decided and Filed: Aug. 31, 2006.
461 F.3d 805
Such evidence is not addressed to whether a person of reasonable firmness would have succumbed to the level of coercion present in a given set of circumstances. Quite the contrary, such evidence is usually consulted to explain why this particular defendant succumbed when a reasonable person without a background of being battered might not have. Specifically, battered woman‘s syndrome evidence seeks to establish that, because of her psychological condition, the defendant is unusually susceptible to the coercion.
United States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994).
Despite having reason to believe Dando had been abused by Doyle, it was not unreasonable for counsel to decide not to pursue a duress defense based on battered woman syndrome given the undisputed circumstances of the crime spree and the questionable relevance and limited admissibility of such testimony. It was not objectively unreasonable for the state court to find that counsel‘s decision to abandon a possible duress defense in favor of the plea was a reasonable strategic decision. Nor has petitioner averred that she would not have entered the plea if counsel had fully pursued the duress defense. I conclude that the state court‘s decision that petitioner was not denied effective assistance of counsel did not involve an unreasonable application of Supreme Court precedent. See Gumangan v. United States, 254 F.3d 701, 705 (8th Cir. 2001) (holding no ineffective assistance where counsel did not advise defendant of a possible defense based on duress and battered woman syndrome).
ARGUED: Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for
Before: MARTIN and GILMAN, Circuit Judges; SARGUS, District Judge.*
MARTIN, J., delivered the opinion of the court, in which SARGUS, D. J., joined. GILMAN, J. (pp. 811-817), delivered a separate dissenting opinion.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
Samuel Collington pled guilty to possession with intent to distribute more than fifty grams of crack cocaine,
I.
On August 10, 2004, Collington was pulled over for speeding in Canton, Ohio. As a result of the traffic stop, Collington was arrested for driving without a valid driver‘s license. A search of Collington‘s person incident to his arrest revealed fifty-
Collington pled guilty to possession of over fifty grams of crack cocaine with the intent to distribute,
At Collington‘s sentencing hearing, the district court undertook what it described as a “three-step process.” The first step was to calculate the appropriate advisory guideline range, which the district court did with no objection from either side to the resulting range of 188 to 235 months. The district court then proceeded to the second and third steps of its analysis: determining whether a variance from the guidelines range would be appropriate in this case and considering the
To aid the court in its decision-making process, it heard from Collington‘s counsel and then questioned Collington regarding his personal history and the severity of the crimes in question. The court then decided to vary downward from the sentencing guidelines and impose a 120 month sentence with the full five-year period of supervised release. The court felt that a downward variance was justified given Collington‘s personal history, his criminal history, and his age. The government now appeals that sentence as being unreasonably low.
II.
We review sentences for reasonableness. United States v. Webb, 403 F.3d 373, 383, (6th Cir. 2005). At the outset, it is worth noting that the district court in this case and the government in its brief to this Court confused the statutory mandate with the appellate standard of review. “[A] district court‘s mandate is to impose ‘a sentence sufficient, but not greater than necessary, to comply with the purposes’ of
In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court invalidated the mandatory use of the Sentencing Guidelines and held they are now “effectively advisory.” We have held that “[o]nce the appropriate advisory Guideline range is calculated, the district court throws this ingredient into the
Because the Sentencing Guidelines are now advisory, a district court is permitted to vary from those guidelines in order to impose a sentence which fits the mandate of
We have now split our reasonableness review into two inquiries: procedural reasonableness and substantive reasonableness. A sentence may be procedurally unreasonable if “the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed in
The district court, in this case, varied downward from the guideline range of 188 to 235 months to give Collington a sentence of 120 months.2 The district court explained at the sentencing hearing that such a variance was justified in this case because of a number of factors which made Collington‘s case an outlier and which the guidelines did not account for. The district court found that, despite Collington‘s criminal history being at a IV, Collington “has never been in custody for any substantial period of time,” having only been imprisoned for seven months before this crime. The district court also noted that the criminal history did not reflect that this incident was the first time that this quantity of drugs and guns had been found in Collington‘s possession.
As we have explained before, “[p]rior to Booker, sentences outside of the Guideline range were severely limited; now, ‘with greater latitude’ a ‘district court need only consider [the Guideline range] along with its analysis of the
[i]n appropriate cases ... a district court may conclude that the criminal history category overstates the severity of the defendant‘s criminal history or
Finally, the district court noted Collington‘s family history, which included his father being murdered in their home when Collington was nine and losing his mother to cancer two years later. As a result, the district court ordered Collington to undergo mental health counseling. Also, the district court required that after Collington‘s imprisonment, he be under supervised release for five years, including aggressive drug testing during that time.
We find this sentence to be reasonable. The district court took the time to consider arguments from defense counsel, the government, and questioned Collington himself about the current charges, his history, and his desire to reform. The district court‘s explanation for this variance from the guideline range is a reasonable one. First, the district court felt that the Sentencing Guidelines did not accurately reflect Collington‘s actual criminal history. Additionally, the district court appeared to be persuaded by the fact that Collington had only previously served seven months in prison before these charges and was an ideal candidate for reform.
While the district court did not explicitly name each of the
Given this detailed and in-depth analysis of Collington‘s sentence by the district court in the light of all relevant sentencing factors, this sentence appears to be procedurally and substantively reasonable. While a large variance requires a greater explanation, that standard was met here. The district court explained its analysis in reaching this sentencing determination and its analysis is sound. This Court must show some level of deference to the district court in sentencing, especially when that district court provides this Court with a factor-by-factor consideration of the relevant
The dissent, in arguing that Collington‘s sentence was unreasonable, quotes repeatedly from the district court‘s oral and written decision in order to show why Collington should not have received such a lenient sentence. E.g., Dissent Opn. at pg. 811 (noting the district court‘s characterization of the offenses as “serious” and “particularly offensive“); Dissent Opn. at pg. 812 (stating that the district court‘s “normal inclination would be to sentence at the high to mid point range,” that the sentence was “a gift,”3 and that the district court said “[p]art of me thinks putting you away for 20 years would make more sense“). While the dissent finds these selective quotations to weaken the reasonableness of district court‘s final sentence, we feel these statements in fact bolster the reasonableness of the sentence. It is the district court‘s very consideration of both the reasons for leniency and for a harsh penalty that makes its explanation a reasonable one and the sentence itself reasonable. The district court did not ignore these facts, but plainly had them in the front of its mind when it chose the sentence for Collington.
If the district court had failed to explicitly mention these factors, then that failure would strongly support a finding that the sentence was unreasonable. Therefore, the dissent‘s attempt to use the district court‘s explicit mention of these factors as cause to find the sentence unreasonable seems antithetical to our review for reasonableness. When the dissent asks for a district court to be “internally consistent” in its explanation, Dissent Opn. at 814, it appears to request a one-sided explanation from a district court: leniency or harshness, not both. However, the district court‘s consideration of both sides strengthens a sentence‘s reasonableness; it does not diminish it.
Additionally, the district court did not “select[] the sentence arbitrarily, bas[e] the sentence on impermissible factors, fail[] to consider pertinent
When a district court considers the relevant
III.
For these reasons, we affirm the district court‘s sentence as being reasonable.
RONALD LEE GILMAN, Circuit Judge, dissenting.
Today‘s decision marks the first time in a published opinion that this court has sustained as reasonable a district court‘s decision to vary downward from the applicable Sentencing Guidelines range. The majority takes this significant step in a case where the mandatory-minimum sentence imposed is 36% below the low end of the applicable Guidelines range, is less than what a first-time offender charged with these offenses would have received under the Guidelines, and effectively erases all punishment for the two serious gun charges to which the defendant pled guilty. Moreover, the district court based the variance sentence, which it acknowledged amounted to “a gift,” on factors discouraged by the Sentencing Commission and on the speculative possibility that Samuel Collington‘s lack of significant jail time for his prior offenses made him amenable to rehabilitation. Applying the reasonableness inquiry articulated in United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), I would vacate Collington‘s sentence and remand for resentencing. I therefore respectfully dissent.
I. BACKGROUND
At first glance, the majority opinion does not set off any alarm bells. Those bells start to ring, however, when one considers the disconnect between the district court‘s statements at the sentencing hearing (and in its written sentencing opinion) and the court‘s ultimate sentencing determination. Because the majority provides only a truncated version of the sentencing proceedings below, and because a fuller understanding of those proceedings is essential to our reasonableness review, I will begin with a more complete account of the district court‘s analysis.
The district court, as the majority correctly notes, described its role in sentencing Collington as “a three-step process” in which the court would first determine the advisory Guidelines range, then “determine whether there is a departure that would be appropriate within the meaning of the guideline itself,” and conclude by deciding whether, in light of the other factors set forth in
The court began by highlighting the “serious” and “particularly offensive” nature of the charges to which Collington
Significantly, the district court recognized that the sentence that it was imposing was “a gift.” Speaking candidly, the court acknowledged that it was sentencing the defendant “with some hesitation,” and that “[p]art of me thinks putting you away for 20 years would make more sense.” The court nevertheless materially varied below the calculated Guidelines range and imposed the statutory mandatory minimum term of 120 months in prison, describing the sentence as “substantial” and “reasonable ... for this Defendant in these circumstances.”
After the government noted its objection, the district court issued a written Opinion and Order further explaining its sentencing decision. Like the oral ruling, the written opinion characterized the nature of the offense as “heinous,” called the defendant “currently a danger to society,” and noted “grave concern” over the defendant‘s history of selling crack. The court nevertheless described the case as “unique” because (1) Collington‘s relatively high criminal history score was based on “misdemeanor possession charges brought against him at a very young age,” a felony conviction for dog fighting, and the fact that three of the charged offenses occurred while he was on parole for the dog fighting conviction; (2) Collington‘s only violent offense arose out of a fight in prison; and (3) Collington‘s one term of imprisonment was a relatively short seven months. This latter point was especially important to the district court, which reasoned that a sentence of ten years would adequately “allow for serious rehabilitative efforts” and “provide the defendant with at least the possibility of a future once counseling and education have been received.” The court concluded: “As his first real custody term, ten (10) years seems sufficient.”
II. REASONABLENESS OF THE SENTENCE
In United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006), this court explained that sentences outside the Guidelines range, although not entitled to a presumption of reasonableness, are not “presumptively un reasonable” either. (Emphasis in original.) But a sentence becomes unreasonable when a district court “select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent
The district court decided to impose a sentence that it acknowledged was “a gift” notwithstanding the seriousness of the offenses charged and Collington‘s checkered criminal past. I do not want to make too much of this one statement, but it is striking. The district court‘s task is decidedly not to give out “gifts;” rather, the court must consider all of the factors in
What led the district court to a different conclusion — and what I believe constitutes its principal error — was the undue weight that it gave to the fact that Collington‘s one and only prison term of seven months was relatively short, and its willingness to speculate on the possibility that he would therefore be rehabilitated more quickly. See Webb, 403 F.3d at 385 (noting that a sentence may be unreasonable where the district court “giv[es] an unreasonable amount of weight to any pertinent factor“); see also United States v. Cage, 451 F.3d 585, 595 (10th Cir. 2006) (reversing a dramatic downward variance and explaining that “[t]he problem with the sentencing decision ... is not in the consideration of [the
The district court in the present case repeatedly emphasized that it was choosing a lower sentence “because the Defendant has never been in custody for any substantial period of time,” and had “never had the benefit of true rehabilitative efforts[.]” Although providing “the defendant with needed educational or vocational training ... or other correctional treatment in the most effective manner” is undoubtedly a proper factor for the sentencing court to consider, see
The majority acknowledges that large variances of this ilk “require[] a greater explanation.” Maj. Op. at 809. I agree whole-heartedly that this is a correct statement of the law, one that finds support in the decisions of this court and virtually every other circuit. See United States v. Davis, 458 F.3d 491 (6th Cir. 2006) (joining “every other court of appeals to consider the question” in holding that “the farther that a judge‘s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in
But I part ways with the majority in applying this legal principle to the facts of the present case. “A greater explanation,” in my view, is not simply a longer explana-
I find this court‘s recent decision in United States v. Davis, 458 F.3d 491 (6th Cir. 2006), to be particularly instructive. After the defendant in Davis was convicted by a jury on two counts of bank fraud, the district court calculated an advisory Guidelines range of 30 to 37 months. Id. at 493. Relying principally on the defendant‘s advanced age — he was 70 at the time of sentencing — and on the fact that the crimes had taken place 14 years earlier, the district court sentenced Davis to a total of one day in prison, three years of supervised release, and one hundred hours of community service. Id. at 495. This court recognized that the sentencing proceedings satisfied all of the procedural requirements set forth by its post-Booker caselaw, but nonetheless concluded that the sentence imposed was substantively unreasonable. The Davis court explained that neither of the factors emphasized by the district court served to justify the “extraordinary variance,” and that the “extreme” nature of the sentence left “no room to make reasoned distinctions between Davis‘s variance and the variances that other, more worthy defendants may deserve.” Id. at 497, 499.
Although the downward variance in the present case is not as dramatic in percentage terms as that in Davis, I believe that the same conclusion follows. In Davis, the district court sentenced the defendant to what was effectively the minimum amount of jail time that could be served. The district court in the present case did the same thing, sentencing Collington to the mandatory minimum required by statute. And while the numbers are certainly different — one day versus ten years — the principle is identical. Specifically, just as the sentence in Davis left “no room to make reasoned distinctions between Davis‘s variance and the variances that other, more worthy defendants may deserve,” id. at 499, the sentence here does little to distinguish between defendants subject to a high Guidelines range solely because of the large quantity of drugs they possessed and others, like Collington, who have engaged in additional types of dangerous conduct. If a repeat drug offender who also possesses an arsenal of dangerous weapons is entitled to the statutory minimum, one wonders how the district court could justify sentencing other drug offenders who forego such weaponry to anything beyond the same mandatory minimum.
Indeed, the fact that the sentence chosen effectively erases the serious gun charges to which Collington pled guilty is among the most troubling aspects of the district court‘s sentence. The sentence prescribes a term of imprisonment 31 months below what the Guidelines minimum would have been had Collington pled guilty only to the drug charges. This result undermines the statutory goal of imposing a sentence that “reflect[s] the seriousness of the offense[.]”
To the extent that the district court‘s decision to opt for leniency also stemmed from concerns over Collington‘s criminal history score, a comparison with traditional Guidelines-based departures suggests that, at a minimum, the magnitude of the downward variance was unreasonable. This court has taken the position that Guidelines-based departures remain viable after Booker and that “Guideline departures are still a relevant consideration for determining the appropriate Guideline sentence.” United States v. McBride, 434 F.3d 470, 477 (6th Cir. 2006); see also United States v. Matheny, 450 F.3d 633, 641 (6th Cir. 2006) (upholding as reasonable a sentence that included a 6-month upward departure under the Guidelines). Although the district court sentenced Collington before McBride was decided, it presciently indicated that it would consider the availability of departures under the Guidelines before deciding whether to impose a variance sentence. The court did not, however, follow through with its plan.
Section 4A1.3 of the Guidelines permits a district court to depart downward where “reliable information indicates that the defendant‘s criminal history category substantially over-represents the seriousness of the defendant‘s criminal history or the likelihood that the defendant will commit other crimes.” The district court could have assuaged its concern that Collington‘s “criminal history is not typical of that normally seen when defendants score that high on the criminal history scale,” by moving down to the criminal history category that it believed appropriate. Had it followed this path, however, the lowest sentence within the Guidelines range — assuming a criminal history category of I — would still have been 15 months above the 120-month sentence actually imposed.
The downward variance thus left Collington with a sentence more lenient than the one that he would have received if he were a first-time offender, and also contravened the former prohibition against departing below the Guidelines range for Criminal History Category I. See U.S. Sentencing Guidelines Manual § 4A1.3(b)(2) (“A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited.“); id. § 4A1.3 n. 3 (explaining that such departures are barred because “the lower limit of the guideline range for Criminal History Category I is set for a first offender with the lowest risk of recidivism“). Even if a sentence below the Guidelines range was appropriate, the district court‘s downward variance was unreasonable in its magnitude under these circumstances because it led to a sentence below that which would have been imposed on first-time offenders under the Guidelines.
In reaching this conclusion, I am not reading McBride as obligating the district courts in all cases to consider Guidelines-based departures before choosing a variance sentence. Other circuits have so held, but this court has not. See United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006) (holding that, before it “elect[s] to impose a non-guideline sentence,” a district court “should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law“).
The district court‘s final error was its failure to consider all of the pertinent factors listed in
Policy statements applicable to the present case include two that discourage basing a departure on the age or troubled upbringing of a defendant. See U.S. Sentencing Guidelines Manual § 5H1.1 (“Age (including youth) is not ordinarily relevant in determining whether a departure is warranted.“); id. § 5H1.12 (“Lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds in determining whether a departure is warranted.“). Despite these policy statements, the district court appears to have placed great weight on the “very young age” at which Collington committed his other crimes, his “difficult childhood,” the death of his parents, and the fact that he “was bounced among relatives, some of whom apparently were more interested in the federal benefits he and his brother received than in the brothers’ welfare.”
This is not to say that district courts are absolutely barred from basing a variance sentence on factors that the Guidelines either discouraged or prohibited as bases for departures. The decision in United States v. Jackson, 408 F.3d 301, 305 n. 3 (6th Cir. 2005), left that issue open, allowing the district court on remand the option of “address[ing] these provisions and decid[ing] what weight, if any, to afford them in light of Booker.” This court‘s decision in Davis, issued after we heard oral argument, likewise acknowledged that, “[i]n an appropriate case,” a district judge may have “a freer hand to account” for a factor disapproved of by the Commission‘s policy statements. See 458 F.3d at 498. But see Rattoballi, 452 F.3d at 134 (“A non-Guidelines sentence that a district court imposes in reliance on factors incompatible with the Commission‘s policy statements may be deemed substantively unreasonable in the absence of persuasive explanation as to why the sentence actually comports with the
Finally, I am not persuaded by the majority‘s comment that appellate courts “are very reluctant to find [sentences] unreasonable” because “[d]oing so would essentially amount to substituting our judgment for the district court‘s as to how long ... defendant[s] should serve.” Maj. Op. at 811; see also United States v. Crisp, 454 F.3d 1285, 1289 (11th Cir. 2006) (acknowledging that reasonableness review is deferential, but opining that “[t]here is ... a difference between deference and abdication“). But every time that an appellate court overturns a discretionary ruling by a district court, it is in effect “substituting [its] judgment” for that of the district judge. Our system of appellate review not only tolerates this practice, but requires it, refusing to convert appellate courts into nothing more than rubber stamps. Cf. Dunphy v. McKee, 134 F.3d 1297, 1300 (7th Cir. 1998) (noting that even “abuse of discretion review is not the same thing as a rubber stamp“). Where, as here, nothing else in the record supports either an upward or a downward deviation from what the district court acknowledged would normally be the appropriate sentencing range, I believe that giving excessive weight to Collington‘s uncertain potential to benefit from rehabilitative efforts amounts to precisely the type of unreasonableness contemplated by this court in Webb. See 403 F.3d at 385.
In sum, I believe that the sentence in the present case should be reversed despite the generally deferential nature of reasonableness review. Cf. United States v. Gall, 446 F.3d 884, 889 (8th Cir. 2006) (describing reasonableness review as “a standard akin to our traditional review for abuse of discretion“) (citation and quotation marks omitted). Even though district courts should certainly be given “the benefit of the doubt in ... their sentencing determinations,” United States v. Buchanan, 449 F.3d 731, 741 (6th Cir. 2006) (Sutton, J., concurring), I do not believe that they should be given carte blanche authority to ignore the judgment of Congress, the Sentencing Commission, and, as in the present case, their own intuitive inclination. They should, at the very least, be discouraged from employing their new discretion to award “a gift” to a defendant whose primary redeeming attribute is the speculative possibility that he might be amenable to rehabilitation.
III. CONCLUSION
For all of the reasons set forth above, I would hold that Collington‘s sentence is unreasonable. I therefore respectfully dissent from the majority‘s contrary disposition.