*1 America, STATES of UNITED
Plaintiff-Appellee, SMITH, Russell Defendant-
Ronald
Appellant.
No. 06-5681. Appeals,
United States Court
Sixth Circuit.
Argued: Aug. 2007.
Decided and Filed: Oct. *2 Philyaw,
ARGUED: Robert D. Law Of- fice Of Robert Philyaw, D. Signal Moun- tain, Tennessee, Appellant. for Christo- Poole, pher D. Assistant United States Attorney, Chattanooga, Tennessee, for Ap- pellee. ON BRIEF: D. Philyaw, Robert 12, 2005, Philyaw, Signal January D. ed. Law Office of Robert On defendant en- Mountain, Tennessee, Appellant. for tered a branch of Suntrust Bank in Cleve- Poole, Christopher land, D. Assistant United and gave Tennessee the teller a note Tennessee, Attorney, Chattanooga, read, 100s, 50s, your “Give me all Appellee. unarmed, 20s.” Defendant was not wear- *3 ing disguise, a and did not make ex- GRIFFIN, Before: COLE and Circuit press threat. The complied teller WATSON, Judges; Judge.* District request, gave defendant all the cash from drawer, $5,132. her and defendant left with GRIFFIN, J., the opinion delivered of photographs Surveillance were distributed WATSON, court, D.J., joined. in which media, to probation the news and a U.S. 472-75), COLE, (pp. J. delivered a recognized officer defendant as one of his separate dissenting opinion. supervised probation releases. The officer OPINION reported identity defendant’s FBI to the and warrants were issued for his arrest. GRIFFIN, Judge. Circuit plead- Defendant Ronald Russell Smith Defendant fled the appre- state but was guilty robbery ed to one count of bank in days hended three later in Arkansas after 2113(a). § violation of 18 U.S.C. After he crashed a stolen car into a ditch while noting robbery that Smith committed the fleeing from an police Arkansas officer. supervised while on release for two other being rights, After advised of his defen- felonies, prior had 22 state convic- federal car, stealing dant admitted to robbing tions, to and continued commit crimes bank, and stealing tag the license custody, in while the district court sen- found on the car. A small amount of him a tenced to term of 132 months of marijuana was also found the car. De- incarceration. The district court consid- pleaded guilty fendant count one advisory ered the Sentencing Guideline robbery bank in violation of 18 U.S.C. months, range of 46 but concluded 2113(a). plea agreement. There was no that a 132-month sentence was warranted extraordinary because of crim- The district court held a sentencing exceptional danger inal to hearing May during on which de- public safety. appeals claimed, Defendant now his argued leniency. fendant for He being For sentence as unreasonable. through attorney, his that he had reached below, reasons set forth we affirm Smith’s life, turning point his and his undis- so, doing sentence. we hold that de- guised robbery and unarmed bank was a fendant’s above-the-Guidelines sentence is cry help. response, the United both rea- States noted defendant has committed sonable, and thus the district court did not custody argued other crimes while in abuse its discretion. “I getting don’t think he needs to be custody out of at all.” The United States
I. asked for sentence “towards the statuto- ry maximum.”1 In leading response, The the Honor- up facts to defendant’s guilty plea robbery undisput- Edgar for bank are able R. Allen stated: * Watson, statutory H. 1. The term of incarcera- Honorable Michael maximum Judge robbery twenty years. States District for the Southern District tion for bank Ohio, sitting by designation. U.S.C.
Well, this, has imprisoned the Court considered Bureau of Prisons to be for a that, the Court has decided has consid- term of 132 months. this guidelines,
ered the
but
sentence The district court also ordered defendant
guideline range
will be outside
$5,132
restitution,
pay
special
$100
authority
flexibility
of and
under the
assessment,
and serve three
of su-
granted to this Court and other trial
pervised
Immediately
pro-
release.
after
pursuant
courts
to the Booker case from
sentence,
nouncing the
the district court
Supreme
the United States
Court.
hearing regarding
held a
revocation of de-
prior
This defendant has three
federal
fendant’s
release.
convictions, which I think is a record for
At
the revocation hearing, defendant
doing
me here. And I’ve been
this
*4
was
violating
accused of
the terms of his
years. He has 22 prior state convictions
supervised
by committing
release
the bank
PSR,
in
probably many
are
robbery,
judicial
leaving the
district with-
already
more or several
more
he’s
permission
officer,
out
probation
from his
indicated here. And as
[the
illegally
possessing
controlled sub-
out,
points
many of
States]
these are not
Through
attorney,
stance.
his
defendant
in
sentencing guidelines.
counted
question
admitted that “there is no
that he
So,
the criminal
score specified
violated the conditions of his supervised
by
guidelines
really
of IV does not
Nevertheless,
release.”
he asked for less
truly
represent
the defendant’s
two-year statutory
than the
maximum on
criminal behavior.
each of the two
violations of his
The defendant
no
personal
has
stable
release,
they
and asked that
be served
history.
He’s 58
old. And best I
concurrently, but consecutive to the sen-
can
presentence report,
tell from the
robbery.
tence for bank
The court instead
he’s
employed.
never been
He does
sentenced
defendant to months on each
have a longstanding substance abuse
counts,
of the two
each to be served con-
problem
go away.
that won’t
He contin-
secutively.
sentence,
The 132-month
com-
ues to commit
let-up,
crimes without
bined with the two consecutive 24-month
both in
custody.
and out of
And
he is
sentences,
in
result
a total sentence of 180
public safety
threat
public
and the
(15 years).
months
protection
needs
from Mr. Smith unfor-
tunately.
it
appear
And
does
that the
urges
Defendant
the court to vacate or
just
defendant
people
is
one of those
reduce his sentence and remand for resen-
mean,
who needs to be
I
incarcerated.
tencing, claiming that his sentence is
he, frankly,
just
capable
not
of func-
“wholly unreasonable under the circum-
tioning on the outside.
stances of this case.”2 We have held that
So, pursuant
review,
to the Sentencing Reform a reasonableness
in the sentencing
Act
judgment
context,
it’s the
of this
procedural
involves both
and sub-
Court on Count 1 that the
components.
defendant is
stantive
United States v.
hereby
Webb,
(6th Cir.2005).
custody
committed to the
of the
brief,
Throughout
repeatedly
his
defendant
during
hearing.
it
Presumably,
name
Booker,
by asking
asks us to “remand this case
light
for re-sentenc-
us to remand in
de-
Booker,
ing
light
of United
claiming
States v.
fendant is
reasonable,
that the sentence is un-
U.S.
125 S.Ct.
opposed
claiming
tence. Richardson, we stated that when “a particular defendant raises a argument
II.
sentence,
seeking a lower
the record must
reviewing a sentence for rea
When
judge
reflect both that the district
consid-
sonableness,
appellate
court must con
argument
ered the defendant’s
merely
length
sider more than
judge explained
rejecting
the basis for
Webb,
383;
sentence.
403 F.3d at
see also
it.
only
This assures not
that the defen-
Booker,
543 U.S.
dant can
par-
understand the
for the
basis
245-46,
Defendant to the district courts to consider the listed factors when sentence, explanation stating determining statutory court’s of the sentences. This argued upon in his brief that “Defendant that is an command insistence delibera tion, requirement. his sentence be at end of not a formulaic should the low When range, reviewing the Guideline but the record is a district court’s consideration of 3553(a) factors, § vague judge’s somewhat as to the reasons we have never re rejecting argument sentencing quired that “the ‘ritual incantation’ of the fac the Defendant to a sentence two times that to affirm a sentence.” States tors United range.” Cage, of the Defendant then cites our v. 458 F.3d 543 Richardson, Johnson, decision States v. 403 (6th (6th Cir.2005)). Cir.2006), 437 F.3d for the 816 To hold proposition adequate that the district court must otherwise when the record shows argument regarding effectively consider a defendant’s would in- proof deliberation that unnecessary upon insistence for- mined sentence called sert Explicit refer- upwards malism into the statute. for an variance from the Guide- 3553(a) perhaps § factors is ence to the court considered defen- lines. court to way the easiest for the district history, stating dant’s his the fac- demonstrate that it has considered federal convictions are the most that three tors, required by not but such recitation is judge has seen in his 21 on the by opinions. circuit’s Unit- statute or this bench, presentencing and noted that (6th Barton, 455 F.3d ed States v. con- report chronicled defendant’s state Till, Cir.2006); sentencing judge victions. The referred to Cir.2006). we stated in As “longstanding substance abuse Till, at 887: problem go away,” empha- that won’t formality require] do not [We that defendant sized “continues commit “ 3553(a)
mentioning
magic
words
let-up,
crimes without
both
and out of
identical alter
imposing
factors” when
custody.” These factors led the district
require,
native sentences. We do not
to conclude
defendant “is
consistent with
States
Chan
[United
v.]
safety
public
public
threat
and the
(6th Cir.2005)]
[,
dler
“While a district court’s failure to restitution. The court also knew the the argument [of address each range, parties defendant] Guidelines which agreed vacatur, head-on not to automatic calculated, will lead properly was and was aware a if we will vacate sentence the ‘context advisory. the Guidelines were For and the record’ do not ‘make clear’ the reasons, these we conclude that defen- And, course, reasoning. court’s of a thor dant’s sentence is reasonable. ough explanation way is the most reliable
for a
court
district
to make clear its rea
III.
sons
a
supporting
given sentence.” Unit
Liou,
4,
ed
v.
States
491 F.3d
339 n.
argues
Defendant also
that his sen
(6th Cir.2007) (quoting Rita v. United
substantively
tence is
“A
unreasonable.
States,
U.S. -,
127
551 U.S.
S.Ct.
sentence is
if
unreasonable
(internal
(2007))
L.Ed.2d
ci
203
the district court
ar
‘selects the sentence
omitted).
tations
bitrarily, bases
impermis
the sentence on
factors,
case,
pertinent
sible
fails to consider
although
the district
3553(a)
§
gives
factors or
expressly
court did not
unreasonable
reference 18 U.S.C.
3553(a)
amount
weight
any pertinent
of
fac
imposing defendant’s sen-
”
tence,
Husein,
the record
that it
tor.’ United States v.
shows
considered
478 F.3d
(6th Cir.2007)
(citing
factors and
argu-
Caver,
ments. The district court stated that
it
Cir.2006)).
had reviewed the Guidelines but deter-
acknowledges
juris
our
Defendant
argues
further
that the
Defendant
establishing
presumption
plainly
a
of
“sentence
this case is
prudence
unreason
able”
a
because
sentence within the
falling
to sentences
within
Guide
reasonableness
range
lines
of 46 to 57 months would have
range,
the Guidelines
but concludes that
“approximately
been
6.2
years
and 7.2
less
presumption
ap
of unreasonableness
“[a]
than his actual
years.”4
sentence of 11
given that
plies in this case
the district
argument,
Defendant’s
while not well ar
court
Mr. Smith six to seven
sentenced
ticulated, seems to be that his sentence is
advisory
over the
Guide
unreasonable because of
degree
its
of vari
range,
doubling
line
in effect
the maximum
ance from the
range.
Guidelines
range.”
of that
defendant is correct
a
that the sentence is
substantial deviation
post
era,
In the
-Booker
range,
from the Guideline
his assertion
flexibility
courts have
to deviate from the
presumption
that it
bears
unreason
Sentencing Guidelines.
“Because
ableness is incorrect.
advisory,
Guidelines are now
the district
vary
court has the discretion to
from the
Recently,
Supreme
Court held that
range
Guidelines
comply
order to
with
may
“a
appeals
apply presump-
court of
mandate
the sentence be ‘suffi
tion of reasonableness to a district court
cient, but not greater
necessary’
than
sentence that
a proper application
reflects
satisfy
sentencing
set forth
Rita,
Sentencing
Guidelines.”
3553(a)(2).”
Keller,
§in
Nevertheless,
S.Ct. at 2462.3
while the
(citing
Supreme
a presumption
Court endorsed
807-08).
Collington, 461
at
reasonableness
sentences within the
range,
it did not allow the con-
Although
permit
verse: “The fact that we
courts of may deviate from
range,
the Guidelines
appeals
adopt
presumption
of reason-
“when the
independently
district court
ableness does not mean
may
that courts
chooses to deviate from
advisory
adopt a presumption of unreasonableness.
(whether
guidelines range
above or below
Even the Government concedes that appel-
it),
apply
proportionality
we
a form of
re
may
late courts
not presume
every
view.”
Here, the
court significantly
de-
marijuana
amount of
was discovered in the
range;
viated from the Guidelines
car.
stolen
Guidelines recommended a sentence of be-
tween 46 and 57 months for the bank
robbery,
At the time of the bank
defen-
robbery, but the district court
sen-
instead
dant was on
release for federal
tenced defendant to 132 months.
In doing
(8 counts)
convictions of wire fraud
so,
district court expressed
opinion
its
conspiracy to commit wire fraud commit-
highest
History
that the
Catego-
Criminal
prison
ted while
federal
Defendant
ry
Sentencing
Guidelines fails to started his known criminal career at the
“really
truly represent
the defendant’s
age of 17. His state court convictions
(3/30/66);
joyriding
behavior.” The district court
include:6
joyriding
(4/29/66);
thoughtfully considered
commit
attempt
felony
defendant’s crimi-
[es-
*8
(7/01/66);
history
(11/04/67);
nal
and noted that he had
cape]
forgery
never
at-
many
encountered a defendant with as
tempt
felony [forged
to commit a
check]
(2/23/68);
federal convictions as Smith. Further-
escape
felonious
from workhouse
more,
(5/14/68);
sentencing judge recognized
larceny
(11/12/72);
de-
person
from a
continuing danger
(11/18/72);
fendant’s
public,
robbery
to the
armed
escape
felonious
criminal,
emphasizing
jail (10/12/73);
that as a habitual
passing
from
forged papers
sentencing proceed-
6. At the revocation and
list of defendant's convictions is taken from
ing,
presentence report.
defense counsel stated that defendant had
The dates of arrest
objections
presentence report.
specified.
no
to the
The
are
—
(7/12/77); 2006),
(6/28/77);
U.S. —,
passing forged papers
cert. denied
127 S.Ct.
(2 counts),
(2006).
burglary
larceny, felony passing
Barton,
In
for its above-the-Guidelines extraordinary history fendant’s 3553(a) section 18 U.S.C. instructs dis- safety are exceptional danger public to “impose trict courts to a sentence suffi- justify- reasons compelling substantial and cient, greater necessary, but not than to of deviation from the advi- ing degree the comply purposes with the in the set forth Moreover, sory Sentencing Guidelines. provision.” Compliance with section 3553(a) to proportionate defendant’s sentence is mandatory. Specifically, is section offender, the offense and the and suffi- that mandates the district court (1) cient, consider: the nature and circumstances greater necessary, but not than of the offense and the charac- 3553(a)(2). with the comply (2) defendant; teristics of the the need for reasons, For these we hold defen- the sentence to reflect the seriousness reasonable, substantially dant’s sentence offense, law, promote respect the for the court and the district did not abuse its provide just punishment and to for the sentencing discretion. offense; protect public the from further Affirmed. defendant; provide crimes and to the defendant with needed educational or care, training, vocational medical or other COLE, JR., Judge, R. GUY Circuit correctional treatment in the most effec- dissenting. (3) manner; tive the kinds of sentences disagree majority’s I conclusion (4) available; appropriate advisory the Smith’s sentence is both (5) any guideline range; pertinent other reasonable. policy Sentencing statement issued advisory Sentencing prescribed Guidelines (6) Commission; the need to avoid unwar- range of 46 to 57 months of incarceration disparities ranted sentence among defen- crime, Smith’s issued dants with similar records who have been a 132-month sentence. In United States (7) conduct; guilty found of similar Davis, this Court characterized 99.89% provide any need to restitution to victims downward deviation from the Guidelines as of the offense. “extraordinary variance.” imposes Once district court a sentence (6th Cir.2006). In the it deems under the factors case, we nod1 face a great- deviation even above, delineated we must then consider magnitude direction, er in opposite whether the district court’s sentence is a approximately Thus, percent. it is application reasonable of section
irrefutable
the case at hand also con-
Webb,
See United States v.
“an extraordinary
stitutes
variance.” As
(6th Cir.2005) (noting
that “when a
question
before us is “wheth-
challenges
defendant
a district court’s sen-
extraordinary
justify
er
circumstances
determination,
tencing
we are instructed to
full amount of the variance.” Id. at 496-
determine “whether
un-
[the] sentence is
below,
97. For
”)
the reasons set forth
I
reasonable.”
believe the
Booker,
record fails to evidence such
220, 261,
U.S.
S.Ct.
(2005)).
extraordinary circumstances.
majority
particular argument, procedural Jones, reason- (6th Cir.2006). requires the record to ableness reflect F.3d judge “both that the district considered Additionally, while the district court argument argument heard Smith’s that his unarmed judge explained rejecting the basis for it.” robbery of a plea help bank was a Richardson, life, turning point he had reached a added). (emphasis the record is silent as to whether case, In this the district court failed to district court took arguments these into sufficiently review on the record the sec- consideration in sentencing Smith well tion factors. the district above the top While of the Guidelines. The ma properly acknowledged advisory jority court fully contends that the district court rejected nature of the argument Guidelines considered considered and Smith’s applicable range, judge record when the noted that Smith had com weighed, does not reflect that the court as mitted supervised this crime while on re required, Majority the factors forth in Op. set section lease. at 468. Even if we weigh colloquy did defendants’ were to assume that the court’s lengthy history, employ- lack of evidenced its consideration of ar Smith’s ment, longstanding prob- gument, substance abuse the record is nevertheless devoid lem, rejecting and his commission of the instant of the court’s basis for it. At a release; minimum, explain crime while on howev- the court should its rea er, doubting credibility. the record is silent on the district sons for Smith’s See — States, generally court’s consideration of the nature and cir- Rita v. United U.S. 3553(a)(1)]; —, 2456, 2468, 168 [§ cumstances of this offense 127 S.Ct. L.Ed.2d 203 (2007) the need for the to reflect (stating sentence the defendant “[w]here 3553(a)(2)]; prosecutor presents seriousness of the offense or nonfrivolous rea [§ imposing and the need to avoid unwarranted sen- sons for a different ... disparities among judge normally go tence defendants with the further and will guilty explain why rejected argu similar records who have been found he has those 3553(a)(6)]. ments”). is, of similar right. [§ conduct All the court said “All “ (JA Well, required this ‘never ‘ritual in- Court has the Court has considered this.” issued, recently up opinion yet 2. This Court took the issue of has not been I draw on procedural en reasonableness under banc re- existing procedural standards of reason- Vonner, view in United States v. 05-5295 setting my analysis. ableness in forth (heard 12, 2007). September en banc Since *11 42). Thus, criminal though may history, the court ered Smith’s extensive even first dic- complied have with Richardson’s including prior his “three federal convic- the defen- judge tate —that consider prior and at least “22 state convic- tions” argument, the court dant’s non-frivolous (JA 42). together, tions.” Taken comport failed to with Richardson’s sec- sup- court believed that these convictions a judge ond dictate-that the set forth basis considerably ported score above Consequently, rejecting argument. by recommended the Guidelines. Id. procedural- I find the 132-month sentence Likewise, majority replicates the dis- ly unreasonable. trict court’s unilateral focus on the defen- history,
dant’s criminal and recites the B. prior record of defendants’ federal and addition, ways majori- I with the part In Majority Op. state convictions. at 469-71. ty’s sentence was conclusion Smith’s What is absent from the district court’s substantively reasonable. As we have not- however, analysis, is a consideration of the “[ejven ed, if a sentence is calculated nature and specific circumstances i.e., the properly, properly Guidelines were being crime for which Smith was sen- applied clearly and the district court con- tenced, namely robbery. bank not While sidered the factors and [section] discounting severity and extent of de- explained reasoning, yet its a sentence can many prior fendant’s encounters with the [substantively] be unreasonable.” United law, (6th sight court must not Husein, lose 478 F.3d Cir.2007) particular offense at issue. (quoting Cage, Cir.2006)). history More undoubtedly defendant’s criminal specifically, unreasonable decision, relevant to the sentencing sentence arises when the district court “ already punish- defendant has received arbitrarily,
“select[s] Therefore, prior ment for his crimes. impermissible the sentence on fac- bas[es] nature of the at para- conviction issue is tors, pertinent fail[s] consider [section] mount. 3553(a) factors, giv[es] or an unreasonable facts, According undisputed to the Smith weight any amount pertinent fac- ” during walked into a small branch bank Lion, tor.” States v. morning any the middle of the without Richard- force, weapons, display disguise, 553). or son, 437 F.3d at $5,132. absconded with the sum of view, my In the instant sentence falls simply any record does not evidence con- penultimate short on the prong of this sideration the district court of the de- is, analysis; reasonableness the dis- crime; particular tails of the the focus is record, trict court failed to consider on entirely severity almost on the of Smith’s factors, among other the “nature and cir- 3553(a)(1) past. Although criminal section offense,” cumstances of the the first-listed authorizes a district court to account for 3553(a)(1). factor under section See 18 “history and characteristics of the de- 3553(a)(1) (authorizing U.S.C. the sen- fendant,” requires it also the court to bal- tencing court to account for “the nature against ance this factor “the nature and and circumstances of the offense and the circumstances of the offense.” 18 U.S.C. history and characteristics of the defen- dant”). 3553(a)(1). The district court’s near arriving at a 132-month sen- sin- tence, the thoroughly gular district court consid- focus on Smith’s sufficient, inadequate greater thus resulted in an focus on the but not necessary, than ” robbery. unarmed bank to comply set in’ forth section See at affirming Smith’s sentence as sub- *12 3553(a)). “pro- Under our reasonable, stantively majority relies review,” portionality the record simply on a line of cases in which this Court has permit does not this Court to conduct a previously affirmed above-the-Guidelines meaningful review as to whether an up- Majority Op. at sentences. 472. most percent ward variance of 158 proportion- is cases, however, of these the crimes direct- ate to the instant offense or offender. ly at were of a violent nature. issue Had there been a explanation fuller from Williams, example, v. the characteristically thorough, experi- upward departure this affirmed an Court enced, competent judge who sentenced from the Guidelines when the defendant the defendant-a clearly defendant who has by allegedly violated his release an extensive past-then my review assault, committing kidnapping, and bat- might have come to a different result. (6th Cir.2007). tery. Fed.Appx. The pointed central factor the Court reasons, For I respectfully these dissent. finding heightened sentence reason- continuing able was “defendant’s evident (em-
propensity for violence.” Id. at 556 added). Likewise,
phasis affirming
upward departure in United States v.
Wells, “lengthy this Court focused on the escalating violent behavior relatively
defendant in his short life.” 473 (emphasis DEBUSSCHER, Barbara added). Plaintiff-Appellant, readily The case distinguish- able, however, because Smith’s bank rob- EAST, INC., SAM’S Defendant- bery any lacked indicia of violence. Smith Appellee. neither carried a weapon any nor relied on violent committing measures in the rob- No. 06-2536. bery. majority cases marshals Appeals, United States Court of thus make clear that above-the-Guidelines Sixth Circuit. justifiable sentences are in certain situa- tions, especially involving those violent Argued: Sept. 2007. crimes; what these cases do not support, Decided and Filed: Oct. however, is that an above-the-Guidelines sentence is reasonable
case of non-violent offense where the magnitude
variance is of this and the ex-
planation therefore is scant.
Taken together, suggest these reasons that, in affirming
to me the district court’s reasonable,
sentence as majority has departed from our central task in review- “
ing sentences-to ensure ‘a sentence [is]