United States v. Timothy L. Little

intermediary to obtain Eimco as an to use par- aerator on approval of Simcar

DHV and, second, projects conspiring with

ticular charge part an exorbitant fee as

DHV to process. approval terms, however,

By express the consent its sys-

judgment apply does not to wastewater requested that Eimco is to warrant.

tems words, judgment does not

other the consent systems.

apply to United com- Carrousel review,

plains of aerator DHVs projects employing on

review occurs specifications.

Eimco’s Because United’s al-

legations projects address to which the con- apply, judgment

sent does not we conclude judg-

that Eimco has not violated the consent

ment.

CONCLUSION appellate jurisdic-

We dismiss for lack of appeal

tion United’s dismissal of its claims and the denial of its motion to

RICO

compel discovery. We affirm grant partial summary judgment

court’s

on the antitrust and LUTPA claims and its

partial summary judgment ruling concerning judgment.

the violation of the consent PART,

AFFIRMED IN DISMISSED IN

PART FOR LACK OF JURISDICTION. America,

UNITED STATES of

Plaintiff-Appellee,

Timothy LITTLE, L. Defendant-

Appellant.

No. 94-6051. Appeals, Court of

Sixth Circuit.

Argued May 1995. July

Decided 1995.

Rehearing Suggestion Rehearing for

En Sept. Banc Denied 1995.* * Contie, Judge, grant rehearing Circuit would the reasons stated in his dissent. willingly told possession, in his he

firearm police of its location. guilty possession pleaded Little felon, 922(g). 18 U.S.C. firearm Laurenzi, Atty. Asst. U.S. Lawrence J. sought enhancement government a sentence TN, briefed), Memphis, for (argued and 924(e), § the armed pursuant to 18 U.S.C. plaintiff-appellee. in- presentence statute. The career criminal briefed), Roney (argued and P. Charles histo- a criminal vestigation report indicated defendant-appellant. TN, Memphis, for based, part, on the ry points of 15 score (1) for criminal following: a state conviction MILBURN, CONTIE, and Before: conduct, deadly weap- a robbery with sexual SILER, Judges. Circuit (2) clerk; on, two kidnapping a store and (3) convictions; burglary and a burglary SILER, J., opinion of the the delivered record, juvenile had a charge. Little also MILBURN, J., joined. court, in which battery and including and of a female assault 454-57), CONTIE, a (pp. delivered J. a bedroom prowling (peeping into woman’s dissenting opinion. separate window). 31, with a Little’s offense level was SILER, Judge. Circuit (CHC) VI, a history category of and criminal challenges Timothy Little his Defendant range 188 to 235 guideline imprisonment imprisonment on his convic- sentence of life months. a being possession a felon tion sentencing, Judge Gibbons A week before firearm, 922(g), qualifying § as and 18 U.S.C. considering that was informed Little she 924(e). criminal, § an armed career U.S.C. After defen- making upward departure. an had no argues that the district court Little objections such a de- his to dant submitted levels and departing upward six basis for Little to parture, the district court sentenced length that the of the sentence contends basis, stating the imprisonment, as its the reasons imposed is unreasonable. For and, criminal of Little’s behavior seriousness herein, of the we affirm the decision stated dysfunction, the given Little’s severe sexual court. probability Little now high of recidivism. im- challenges length the of the sentence I. posed. 29,1993, Little, employee an On December service, raking at a of a lawn was leaves II. Memphis, He knocked home in Tennessee. and asked the on the door of the house adequately Little contends that as CHC VI woman,

resident, the tele- a if he could use con- seriousness of his criminal reflected the phone. allowed Little into her The woman that he would commit duct and the likelihood inside, gun pulled Little out a home. Once crimes, in mak- the district court erred more disrobe, pushed the victim to and ordered ing upward departure pursuant to USSG bedroom, perform her to a and forced her 4A1.3, provides: which vagi- attempted also to have oral sex. Little information indicates that If reliable victim, intercourse with the nal and anal history category not ade- does penetrated to do so. He then he was unable of the de- quately reflect the seriousness anally vaginally. digitally the victim both or the like- past criminal conduct fendant’s finished, told the victim to Once he was he will commit other lihood that the defendant gun get and showed her that his dressed crimes, imposing may the court consider the vic- contained no bullets. He instructed ap- departing from the otherwise sentence house, police and tim not to call the left guideline range. plicable yard The victim returning to his duties. reviewing a district court’s de po- immediately police. called When Guidelines, em this court arrived, property parture from was still on the lice Little First, we consider three-prong test. ploys raking leaves. he did not have While whether the circumstances of the case are is most prison [Little] comfortable in sufficiently departure. where his sexual unusual warrant needs are met.... [He] has no law, tools with which to question of live on the As this is a review is de part outside. It is Second, of the culture of vio- we determine novo. whether the prison lence in wherein the defendant justify departure actually that circumstances responses. learned his sexual It Finally, exist. Review is for clear error. we thought the fear he instills in his degree range determine whether or victims acts primary factor for his departure was reasonable. United States v. sexual arousal. equiv- Sex to Mr. Little is Thomas, Cir.), cert. against person’s alent to violence or — will. denied, —, U.S. S.Ct. (1994); Joan, Moreover, L.Ed.2d 362 presents very high Little risk (6th Cir.1989). 491, regard 883 F.2d 494 In presentence of recidivism. As report the noted, prong, correctly to the third “reasonableness is a flexi “defendant’s first adult con- age viction was at the quintes ble standard which ‘involveswhat is of 18. He is now 33. ” intervening Of the 15 sentially judgment years, 12 ... reviewing call’ and a have spent Indeed, must, therefore, custody.” been Little was give court deference to the prison only from free six months before he “superior trier of fact’s ‘feel’ for the ease.” present committed the offense. While it is Thomas, Joan, (citing 24 F.3d at 833 883 generally true that the Guidelines take recid- (citations omitted)). F.2d at 494 For this account, they sufficiently ivism into do not reason, based, we determine reasonableness “ account for psychological problems such as in part, imposition on ‘the reasons for the the one at hand.1 The circumstances of this particular by the sentence as stated the dis ” are, therefore, sufficiently case unusual to trict court.’ Id. upward departure. warrant an Review of the record reveals circum Next, sentencing court’s find sufficiently stances unusual to warrant de ings justifying departure clearly are not parture. determining up “In whether an matter, erroneous. As an initial enhance departure History ward from Criminal Cate only ment supported by factors need be warranted, gory may VI be the court should preponderance Hence, of the evidence. Lit consider that the nature of the offenses tough attempting tle faces a burden in to simply rather than their number is often prove clearly that the district court erred in more indicative of the seriousness of the findings. primarily its He contends that the § defendant’s criminal record.” USSG 4A1.3 relying opinions district court erred in on the added). (emphasis Little has twice commit professionals of certain as contained within rapes gunpoint. ted at His back presentenee report.2 As this circuit stat ground peppered with instances of sexual Silverman, ed in United v. 976 F.2d — undergone (6th misconduct. He has Cir.1992)(en numerous banc), denied, 1502 cert. hospitalizations unsuccessful —, 1595, order to treat U.S. 113 S.Ct. 159 L.Ed.2d fact, dysfunction. his sexual Little was (1993), however, may court con psychiatrist under the care of a for his sexual any long sider “ information as as there exist dysfunction when present he committed the reliability support ‘sufficient indicia of to its rape. (citations presentence report, As stated in the probable accuracy.’” Id. at 1513 Little, omitted). Gesky, prior Tim counselor of indi professionals’ The statements cated that: meet this test. Both mother and Little’s reason, that, argued 1. For the same the cases of United States 2. Little to the district he did court as Wolak, (6th Cir), denied, v. 923 F.2d 1193 cert. opportunity not have an to cross-examine the 2824, 501 U.S. 111 S.Ct. 115 L.Ed.2d 995 professionals, opinions inherently their are unre (1991), Kennedy, and United States v. 893 F.2d However, right liable. no to confrontation at (6th relies, 1990), upon Cir. which Little are Silverman, sentencing. at taches United States v. case, distinguishable. present The unlike Wolak (6th Cir.1992)(en banc), Kennedy, or involves circumstances much more — denied, U.S. —, cert. 113 S.Ct. egregious history. than an extensive criminal (1993). L.Ed.2d 159 Wolak, See 923 F.2d at 1200. major departure required as United States that he had a els of admitted Little himself Cir.1990).” opin- Kennedy, 893 F.2d 825 professionals’ dysfunction. sexual However, nor the many the Guidelines simply “[n]either confirm of Little’s ions thus require circuit the district court to law of this own admissions. rejec- provide a mechanistic recitation of its sentence, severe, Finally, while a life intervening, guideline tion of the lower of this given the circumstances is reasonable Thomas, Rather, ranges.” 24 F.3d at 834. stated, part, court The district case. directs, explicitly a defen- as 4A1.3 when imposing following as its reasons VI, already dant is at CHC the district court sentence: only incrementally the sen- need move down certainly the has considered Court [T]he level tencing table until it finds offense past very nature of Mr. Little’s serious appropriate the case. A court is that is offenses, rapes gun- at which include two level, only not to “move one or to ... the Court also considers point, rejection every explain its of each and inter- triggered number of offenses Rather, vening Id. 4A1.3 “[s]ection level.” status, went [that] career criminal armed court law] and case constrain the [circuit required ... beyond would be what to the extent that it must use the offense begin with. reference, ranges depart from level than to reach a them no further is in really important more this But even gridlock that a reasonable sentence contains defendant_” ... likelihood that particular case is the for the Id. at 835-36. commit other crimes. The Mr. Little will The district court satisfied the Thomas by responsi- of is motivated sense Court rejected as test. It the intermediate levels bility can in this to do what Court particular circum- too lenient under society protect from future situation to It stances. was concerned “that there would Little. crimes Mr. fully punishment no lesser that would be rule, that, “unless there is as Given society protect great as the likelihood that [in for the court’s actions little or no basis Little, prison, if Mr. released from would making upward departure], the sentence an commit further crimes.” We find this to be Thomas, 24 at 833 upheld,” should F.3d be sufficient. Joan, (citing v. 883 F.2d United States AFFIRMED. (6th Cir.1989)), we conclude that length imposed of the sentence was reason CONTIE, Judge, dissenting. I re- Circuit extreme, a life sentence is it is able. While up- I spectfully dissent. do not believe the 924(e) authorizes significant that 18 U.S.C. of departure ward from a maximum sentence imprisonment maxi a sentence of life (19 months) years, 235 months under the See, Wolak, punishment. e.g., F.2d mum guideline range being applicable for a former 1199; Carey, at United States possession felon in of a firearm to a sentence (8th Cir.1990). Congress thus ex imprisonment is of life reasonable. It pected imprisonment ap that life would be from the record that the district court clear Furthermore, propriate in some cases. Lit defendant on the basis of the state sentenced background tle’s extensive criminal and the unlawfully pos- committed offense he while incarcerations to deter him failure sessing firearm —the sexual assault that activity support imposition from criminal conjunction pos- occurred in with defendant’s lengthy Finally, apparent of a sentence. his gun. The district court’s re- session of the irreparable dys sexual uncontrollable sponsibility in this case was to sentence de- requires period function at least an extended weapons posses- for a fendant Little federal for, else, nothing society’s if incarceration responsi- sion violation. The state court had protection. bility dealing with the sexual offense. argument, an alternative Lit The district court was aware that defendant

As Judge Little would be sentenced for the sexual of- tle contends that “the District Court failing in state court after the district court erred to consider intermediate lev- fense imposed weapons for the longer society, sentence federal a threat to so he would not possession charge. I parole system believe the substance receive under the state until following exchanges of the there finding. is inconsistent was such a responsibility with the demarcation of be- Appendix Joint at 60. tween the state court and the district court. responded: The district court THE He is in custody COURT: state I wish that I could have the faith that Mr. up custody? for—How did he end in state Roney suggests I should have the state underlying MR. charge RONEY: system’s [the ability to evaluate whether Mr. conduct]. sexual crimes, Little will commit future but I simply don’t think that I can abdicate the THE COURT: He was taken into state responsibility that I feel in this situation custody? hope based on a system that the state will MR. RONEY: Correct. be infallible its determination as to when THE Initially? COURT: might it appropriate be to release Mr. MR. RONEY: That’s correct. Little. It is with that realization and con- THE COURT: And indicted over there? sideration that I feel that this sentence imprisonment] my understanding. [life MR. RONEY: That’s is the one that I must impose. going THE COURT: happen What’s Appendix Joint the— at 72. I impermissible believe this is guilty plea

MR. RONEY: There will be a reason case, Honor, upward departure in that for an applicable Your after this from the ease is disposed guideline range imposi- of. and the

tion of the draconian impris- sentence onment. I opinion am of the that the district THE going COURT: Is he to receive a by court abused preempting its discretion the state sentence that is concurrent with the authority state court’s to sentence Little for federal being sentence? Is that what is underlying the Although sexual offense. the contemplated? explicitly court did not state that it course, Honor, MR. RONEY: Of Your I’m basing was imprisonment the sentence of life there, representing my not him but that’s (the on relevant conduct sexual assault that understanding. conjunction occurred in pos- with defendant’s Appendix Joint following at 49-51. The ex- gun), session of the the court’s statements in change indicates that at the root of the dis- that, regard essence, this make it clear in trict upwardly departing court’s rationale for this doing. is what the district court was In from guideline a maximum sentence of 235 imposing such a draconian sentence for imprisonment months to life for a federal (a weapons possession departure six-level weapons possession offense was the district applicable guideline from range), the the dis- court’s belief that the court state would not trict posed court determined that defendant impose adequate an sentence for the related permanent society, relying pri- a threat to conduct —the sexual offense. Defendant Lit- marily on the assessment contained in the tle’s counsel informed the court that: presentence report who, Gesky, of Tom con- pending charges ag- trary assertion, [Little]

He is majority’s the to the has no stat- gravated court, rape in state if qualifications professional Your Honor ed psycholo- please. my understanding gist It’s psychiatrist. or The record indicates —For record, representing I’m not Gesky him ... that through worked with defendant a there, my understanding twelve-step it’s Anonymous program that that Alcoholics guilty in plea, will result I Synergy, halfway and can tell and that he works at any the Court that rape charge nothing kind of house. There is to indicate that being Gesky to a defendant any professional released under has credentials. parole provisions Contrary Tennessee state majority, profes- would to the I find no require competent that psychologist opinion or in sional the record with sufficient psychiatrist finding reliability support enter a that he is no indicia of to the district ap Therefore, found to have been although I line maximum were be- court’s conclusion. in there was proved, there no case which case are suffi- was of this the circumstances lieve departure imprisonment, to life upward depar- upward an ciently unusual to warrant opinion uphold supports published I no ture, the evidence can find I not find that do in provided departure. for a In cases which justifications ing that were such a history category not There is is VI departure imprisonment. defendant’s criminal to (the by a presentence report history category under highest in the criminal one statement psy- Guidelines), depar Little’s qualified Sentencing upward to discuss professional supports the district pri that chological pursuant status to 4A1.3 are tures U.S.S.G. permanent poses a high conclusion that he marily court’s the basis of a criminal made on society.1 points to history greatly exceeding threat the 13 score placed Category in VI. United needed to be Furthermore, court’s six-level the district (6th Cir.) Thomas, 24 v. F.3d 829 States imprisonment of life to a sentence increase (criminal 43, triple history the 13- score conduct undermines of relevant on the basis VI, Category warrants point threshold for Sentencing Federal purpose of the months), cert. de upward departure of 30 in this court stated Guidelines. As — nied, —, U.S. 115 S.Ct. (6th Robison, States v. Eve, (1994); United States v. L.Ed.2d 362 denied, Cir.), 498 U.S. S.Ct. cert. (6th Cir.1993) (because defen 984 F.2d 701 (1990): 360, 112 L.Ed.2d 323 history only points in criminal dant scored designed Sentencing were [T]he Guidelines category, upward departure on district based uniformity provide more past with criminal conduct court’s concern appropriate to simi- by proscribing ranges Osborne, warranted); v. not United States judge agrees lar defendants. Whether Cir.1991) (criminal (6th history 948 F.2d 210 Guidelines, it is his disagrees with the or Category high, of 24 was so VI did not score depart ranges and duty to abide those conduct); past reflect seriousness of cases where the in the “unusual” Belanger, 892 F.2d 473 United States into ac- adequately take Guidelines do not Cir.1989) (29 short, history computa point criminal In it nature of the crime. count the tion, points Sentencing more than double the number Commis- the United Guidelines, judges, place Category sion not individual a defendant range VI, appropriate of sen- upward departure). now dictate con warrants trast, case, in a case. present tences crimi defendant’s history points nal score is two above violated this I believe the district court placed in points needed to be pres- in the criterion for federal Therefore, History Category Criminal VI. Although ent the court stated case. high not a case in which a criminal this is 4A1.3, pursuant the court was to U.S.S.G. score, objective history criterion which is an departing defendant’s crimi- upward because past crim of the seriousness of defendant’s adequately re- history category nal did not conduct, departure. dis inal warrants past flect of defendant’s seriousness guide departed trict court six-levels from a conduct, did not criminal the district court line maximum sentence of 235 months and the seriousness of base its assessment of imposed court did a life sentence because the objec- history on past defendant’s adequately pro system not trust the state standard, of defen- tive such as the number society There is no tect from defendant. history points, was dant’s criminal precedent for such a dramatic six-level de swayed conduct. by the nature of the related guideline range 1042, parture from the U.S.S.G. Doucette, F.2d United States v. Moreover, I on relevant conduct. be Cir.1992), based comprehensive- the court majority opinion dangerous lieve the sets ly depar- upward reviewed the occasions for floodgates to im precedent, opening the crimi- egregious, ture because of an serious position penalties based on rele of unlimited Although nal in Doucette sentences record. conduct, the federal of- greater guide- vant rather than on more than four times than the sentence, argue age, will be a defen- it is hard to that recidivism 1. Based on district court's if 90, he will still be in dant lives to be 80 or concern. prison. I reaches this believe that if defendant fense for which the defendant has been con-

victed. be, may

Horrific as defendant’s conduct

the criminal sexual conduct is not the offense on, court should federal have focused

particularly given the fact that defendant was

awaiting sentence state court for the relat- object I

ed sexual offense. that a federal effect, court, has taken on the role supervisor system through

of of the state

surreptitious imposing route of a life sen-

tence based on relevant conduct. The dis-

trict court indicated that it did not trust the adequately

state court to sentence defendant and,

for the criminal sexual conduct there- fore, the court decided to circumvent the

impact any possible state sentence

imposing imprisonment sentence weapons possession.

federal court for I be- principles

lieve this comity, offends usurped

the district court has the state of authority

Tennessee’s to sentence defendant forty years imprisonment for the criminal

sexual conduct.2 I Because find that support

record does not the conclusion that poses life-long society,

defendant threat to

I imprison- do not believe a sentence of life reasons,

ment is reasonable. For these I

dissent and recommend that this case be

remanded to the district court for resentenc-

ing. America,

UNITED STATES of

Plaintiff-Appellee,

Jerry GILLESPIE, Defendant-Appellant.

No. 94-3525. Appeals, States Court of

Sixth Circuit.

Argued March 1995. Aug.

Decided 1995.

Rehearing Suggestion Rehearing

En Banc Denied Oct. 1995. 26, 1994, August pled guilty 2. years imprisonment. On defendant was sentenced to 40 the criminal sexual conduct in state court and

Case Details

Case Name: United States v. Timothy L. Little

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 5, 1995

Citation: 61 F.3d 450

Docket Number: 94-6051

Court Abbreviation: 6th Cir.