UNITED STATES of America, Plaintiff-Appellee, v. Norman T. SEXTON (05-6412); Richard Romans (05-6415); James Albert Legg (05-6416), Defendants-Appellants.
Nos. 05-6412, 05-6415, 05-6416.
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 25, 2007. Decided and Filed: Jan. 11, 2008.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
Before: MERRITT, ROGERS, and McKEAGUE, Circuit Judges.
ROGERS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. MERRITT, J. (pp. 333-38), delivered a separate dissenting opinion.
OPINION
ROGERS, Circuit Judge.
Defendants Norman T. Sexton, Richard Romans, and James A. Legg challenge the sentences imposed by the district court on remand from this court for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Defendants were sentenced in 2002 after
Defendants make five primary arguments on appeal: (1) the district court violated their Sixth Amendment and due process rights by using its own factual findings to calculate their sentencing ranges under the United States Sentencing Guidelines; (2) their sentences exceeded the “maximum statutory sentence” allowable for their offenses; (3) the imposition of their sentences in accordance with the remedial portion of Booker created an unconstitutional ex post facto effect; (4) Sexton‘s sentence was unreasonable; and (5) the district court‘s refusal to order the preparation of new presentencing reports on remand was improper under
I.
On December 20, 2000, a jury found all three defendants guilty of conspiracy to distribute cocaine in violation of
After examining the trial testimony, the district court adopted the findings of the PSRs with respect to the drug quantity attributable to each defendant and the application of § 3B1.1 role enhancements to the base offense levels of Sexton and Legg. The court concluded, however, that a role enhancement was not warranted with regard to Romans and that a firearm enhancement was not warranted with regard to Legg. Consequently, the district court determined that the proper Guidelines ranges for Sexton, Legg, and Romans were 235 to 240 months, 168 to 210 months, and 121 to 151 months, respectively. On June 2, 2002, the district court sentenced Sexton to 238 months, Legg to 196 months, and Romans to 148 months of confinement.
Defendants appealed their sentences to this court, arguing that the use of judicial fact-finding to determine their respective drug amounts violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that the district court erred in applying § 3B1.1 role enhancements. In a decision filed on January 6, 2005, this court rejected defendants’ claims, but noted that a case then pending before the Supreme Court, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), might affect their sentences. Given that possibility, this court advised defendants that they could file a petition for rehearing if Booker did, indeed, have an impact on their sentences.
Prior to their resentencing hearing, all three defendants filed motions arguing that Booker required the district court to order the preparation of new PSRs, which were to be based only upon facts that had been found by the jury beyond a reasonable doubt. Defendants also renewed all of their prior objections to the PSRs. The district court denied these motions because defendants failed to point out any factual inaccuracies in the PSRs or any legal authority for the proposition that facts used for sentencing purposes must be found by a jury. Further, with respect to defendants’ renewed objections to the PSRs, the district court held that it was without authority to reopen prior sentencing rulings, since the sole purpose of the remand was for the court to decide whether it would exercise its authority to vary from the Sentencing Guidelines.
Defendants were resentenced on September 1, 2005. At the outset, the district court reiterated that its only task was to determine whether it wished to exercise its new discretionary authority under Booker and that it “ha[d] no authority to revisit the guidelines.” The district court then invited the parties to address the sentencing goals set forth in
After listening to all of the parties, the district court imposed defendants’ sentences. The district court began by noting that it understood the advisory nature of the Guidelines and that “in arriving at an appropriate sentence,” it would consult the Guidelines as well as the sentencing goals enumerated in
II.
The district court did not violate defendants’ Sixth Amendment and due process rights by making factual findings, by a preponderance of the evidence, to determine defendants’ sentencing ranges. As noted, the district court made its own factual determinations for sentencing purposes, based upon trial testimony, as to the quantity of cocaine attributable to each defendant and each defendant‘s role in the offense.
This court has squarely rejected defendants’ contention that Booker and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), require all factual findings affecting a sentence‘s severity to be made by a jury beyond a
III.
Defendants’ sentences also did not exceed the maximum statutory penalty that could be imposed for their offenses. In its normal use, the term “statutory maximum” simply describes the “upper limit of punishment that Congress has legislatively specified for violation of a statute.” United States v. Rubbo, 396 F.3d 1330, 1334-35 (11th Cir.2005). Pursuant to the statute under which defendants were convicted, each faced a maximum sentence of 240 months.
Defendants argue that under Blakely and Booker, a crime‘s maximum penalty is the greatest sentence that a judge may impose under the Guidelines based upon facts admitted by a defendant or found by a jury. As previously noted, defendants’ sentences were calculated using drug amounts determined by the district judge. The district court ultimately concluded for sentencing purposes that defendants were responsible for more cocaine than defendants were convicted of being responsible for under their offense definitions. Thus, defendants assert that their sentences, even though less than 240 months, exceed the relevant “statutory maximum.”
Since defendants were sentenced under an advisory Guidelines scheme, the maximum statutory penalty that the district court could impose was determined by the statute of conviction, rather than by a Guidelines range calculated using only jury findings. Defendants appear to base their arguments upon the Supreme Court‘s statement in Blakely that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303, 124 S.Ct. 2531 (emphasis added and omitted). This court has explained, however, that Blakely defined the phrase “statutory maximum” only “for purposes of the Apprendi rule” and “did not change the meaning of that term (or equivalent terms) in other contexts.” United States v. Phillips, 143 Fed. Appx 667, 672 (6th Cir.2005) (“the ‘maximum statutory penalty’ is not the same as the Blakely ‘statutory maximum’ “). Because defendants were sentenced under an advisory Guidelines scheme, which does not implicate Apprendi Sixth Amendment concerns, the Blakely definition is inapplicable here. See Booker, 543 U.S. at 233, 125 S.Ct. 738 (holding that the use of an advisory Sentencing Guidelines scheme
IV.
Furthermore, the application of the remedial portion of Booker to defendants’ cases did not create an ex post facto effect in violation of defendants’ due process rights. Defendants claim that the application of Booker‘s remedial holding created an ex post facto effect by allowing the district court to impose greater sentences on remand under the advisory Guidelines than it could have imposed at the time that they committed their crimes, when a mandatory Guidelines scheme was in place. Defendants’ arguments with respect to this issue are unavailing, as this court has held in multiple cases that the retroactive application of Booker‘s remedial sentencing ruling does not lead to an ex post facto problem. See United States v. Hill, 209 Fed.Appx. 467, 468 (6th Cir.2006); United States v. Barton, 455 F.3d 649, 652-57 (6th Cir.2006); United States v. Shepherd, 453 F.3d 702, 705-06 (6th Cir.2006).
V.
Sexton‘s sentence was also not unreasonable.1 Sexton appears to assert that his sentence was unreasonable because the district court either did not consider his community standing or did not give it adequate weight. The question of whether a sentence is reasonable is determined using the abuse-of-discretion standard of review. Gall v. United States, — U.S. —, 128 S.Ct. 586, 594-96, 169 L.Ed.2d 445 (2007). Review for reasonableness has both procedural and substantive components. See id. at 596; United States v. Borho, 485 F.3d 904, 908 (6th Cir.2007).
The record indicates that the district court committed no significant procedural error with regard to Sexton‘s sentence. The district court did not “fail[] to calculate (or improperly calculat[e]) the Guidelines range, treat[] the Guidelines as mandatory, fail[] to consider the
Sexton argues that the district court erred by not sufficiently considering his individual characteristics. During the
Likewise, Sexton‘s sentence is not substantively unreasonable. A sentence will be found to be substantively unreasonable “when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent
Sexton has not offered evidence sufficient to rebut the presumption of reasonableness and demonstrate that the district court abused its discretion. The only argument that Sexton appears to make is that the district court, in balancing the relevant
VI.
Finally, the district court did not abuse its discretion by declining to order the preparation of new PSRs on remand. Contrary to their assertions, defendants were not entitled to new PSRs under either
Moreover, as the district court noted, there was no need to prepare new PSRs in the instant action because the existing PSRs were factually accurate and complete. Defendants do not allege that their PSRs contained any inaccurate facts or omitted any relevant information with regard to their presentencing conduct. And, under this court‘s decision in United States v. Keller, 498 F.3d 316, 323-25 (6th Cir.2007), the district court was not permitted to consider the defendants’ post-sentencing conduct for purposes of Booker resentencing. This conclusion is supported by the decisions of courts in other circuits, which have similarly held that it is unnecessary to prepare new PSRs on remand where the parties receive an opportunity to be heard and no new information exists that would warrant an update. See United States v. Alvarez-Cuevas, 210 Fed. Appx. 23, 24 (1st Cir.2007) (holding that on remand for Booker resentencing, defendant was not entitled to the creation of a new PSR where defendant had not identified any new information not already considered by the judge); United States v. Bezmalinovic, 76 Fed.Appx. 375, 377 (2d Cir.2003); United States v. Crank, 21 Fed. Appx. 521, 522-23 (8th Cir.2001).
VII.
For the foregoing reasons, we AFFIRM the sentences imposed by the district court.
MERRITT, Circuit Judge, dissenting.
Except for those judges and lawyers who prefer to continue routine conformity to the old pre-Blakely-Booker process of guideline sentencing, there is widespread disapproval of the present muddled system. This is because, in the main, the old system is just continuing on as though nothing had happened—continuing under the pretext that the guidelines are only “advisory” instead of being considered only as a starting point against the backdrop of the more sensible and humane penalogical goals set out in
By ratcheting up the sentence, as is typical under the guidelines, piling aggravator on aggravator, the District Court, (as though Booker had never been decided), simply restored its old guideline sentences of 20 years in prison for Sexton, 16 years in prison for Legg, and 12 years in prison for Romans—all for a victimless drug crime.
Such harsh sentences are par for the course under the guidelines. The sentencing court imposed a harsh sentence without seriously considering mitigating family and personal factors or rehabilitation possibilities—all in line with the U.S. Sentencing Commission rules against the consideration of such individual factors in Chapters 5H and 5K of the Guidelines.1 This refus-
The ratcheting-up process in the instant case was all based upon judicial findings of fact.2 It is obvious to anyone who has watched this disingenuous process develop that the present system is completely inconsistent with the Blakely and Booker opinions, which confine judicial fact finding to those facts carrying out a jury verdict or plea of guilty. As the Court said in Cunningham v. California, — U.S. —, 127 S.Ct. 856, 863-64, 166 L.Ed.2d 856 (2007) (emphasis added), “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge.” This statement of the Sixth Amendment rule was first stated in Blakely even more clearly and then repeated in Booker and Rita. It is still unclear, however, whether the Supreme Court is going to stay with or erode and then reject the clear holding of Blakely:
[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
The Supreme Court did not say in Gall or Rita that the sentencing judge should “start” the sentencing process by enhancing the sentence aggravator by aggravator, as happened in the instant case. The Court said that the sentencing judge should begin with the “applicable Guidelines range” which in Gall was the initial base offense level corresponding to facts admitted by the guilty plea, which carried a range of 30 to 37 months. There is no language in Gall or Rita that requires appellate or district judges to “begin” with the enhancement process. That process is directly contrary to the language quoted below in Blakely that a “judge exceeds his proper authority” by basing a higher sentence on judicial findings outside the jury verdict.
The only way to begin to return the process to something consistent with the Sixth Amendment and with the concept of individualized sentencing is to recognize and insist that we stick with two overriding principles: First, that judicial fact finding and the length of a sentence be limited somewhere within the base-of-fense-level, guideline range corresponding to the jury verdict or the plea, unless the sentencing judge explains why the concepts of general and individual deterrence should require a longer sentence for the particular individual and outweigh the mitigating circumstances of the case (including factors like age, addiction, and family responsibility deemed irrelevant by the Sentencing Commission in Chapters 5H and 5K), as well as the likelihood of successful rehabilitation. Second, that the sentencing judge explain the weighing process outlined above (taking into account moral culpability, general and special deterrence, mitigating circumstances and rehabilitation) so that the sentence and its explanation comply with the “overarching
In other words, the sentencing judge should start with the base offense level corresponding to the facts found by the jury verdict or admitted by the guilty plea. The sentencing judge should not go up or down from that point unless in his or her own mind the weighing process of the two overriding principles stated above requires it. The judge should not engage in guidelineism, adjusting the sentence up or down just because the guidelines say so, as occurred in the instant case, but rather because the judge‘s own sense of justice, upon reflection, leads to a different result than the beginning, base-offense level. This allows the guidelines to play a pivotal role to begin with but requires the judge to use his or her own mental faculties and best judgment, just as judges did in the days of indeterminate sentencing before the mandatory federal sentencing guideline era.
The job of the Court of Appeals should be only to see that the federal sentencing judge (1) starts at the right place in the reasoning process (at the base offense level corresponding to the jury verdict or guilty plea), as required by the Sixth Amendment as interpreted by Blakely and Booker, and (2) engages in a general process of serious dialectical reflection and reconciliation, as evidenced by the reasons given for deviating from the starting point established under Sixth Amendment constraints. This process should put an end to the rote, ratcheting-up process that now characterizes the sentencing process, a process based on the Commission‘s rule that mitigating factors are “not relevant.”
This modified system based on these two principles is, more or less, what the system would have looked like in the beginning if the Guidelines were truly “guidelines” rather than mandatory rules. If the Commission, in the beginning, as many judges and lawyers recommended, had adopted guidelines to assist judges rather than to discipline and correct judges this modified system would have perhaps provided a workable system. I myself testified before the Commission advising it not to saddle the judiciary with mandatory rules that are constitutionally suspect because such rules would most likely eliminate individualized sentencing and full consideration of mitigating factors. The Commission, however, believed that federal judges could not be trusted to exercise discretion properly and that harsher sentencing rules must be imposed on judges in order to insure longer sentences and collective uniformity. The current Guidelines that ratchet up sentences without considering mitigating factors or rehabilitation are the result.
The modified system described above is a different process of sentencing from either pure indeterminate sentencing, as it operated before the guidelines, or the mandatory, rote guideline process that prevailed before the Sixth Amendment was recognized as a limitation on fact finding. Hopefully, such a modified system would begin to provide a balance between the collectivized, sentencing process of lockstep, upward adjustments heretofore required by the Commission, and the thoughtful individual sentencing by federal
Such a modified system includes an element of democratic, legislative control over sentencing while keeping elements of individualized sentencing from the old system. Such a modified system may be strongly resisted by prosecutors and the Department of Justice officials who have now become accustomed to controlling sentencing through the charging process, the release of enhancement information to probation officers and plea bargaining. Back in my day as U.S. Attorney 40 years ago, prosecutors were viewed solely as parties to the case and not entitled to control the length of the sentence. Removing control of sentencing from the prosecutorial arm of the government should be viewed as a step forward, although it is really a step back in history to restore the benefits of individualized sentencing practiced by English and American judges since the beginning of the 18th Century.
The modified scheme proposed above squares with the most recent Supreme Court decision, Gall v. United States, 128 S.Ct. 586, 597 (2007), in which the Court instructed district court judges to “make an individualized assessment based on the facts presented” with the Guidelines operating as the “initial benchmark” but “not the only consideration.” In Gall, the Supreme Court affirmed the district court‘s sentence of thirty-six months probation, a punishment based upon the district judge‘s individualized evaluation of the factors under
Unfortunately, the sentencing process in this case was just a repeat of guidelinitis, the system of rote sentencing in which the sentencing judge ratchets up the sentence instead of engaging in anything close to the deliberative or reflective process outlined by the two overriding principles stated above. The district court just did the same thing after Booker that it did before Booker—no change, no new thoughts. Then our court did the same thing it did before Booker—no change, no new thoughts. I would reverse and remand the case for resentencing in compliance with the two overriding principles stated