United States v. Wallace

America, UNITED STATES of

Plaintiff-Appellee,

v. WALLACE, Defendant-

Barbara J.

Appellant.

No. 07-2230. Appeals,

United States Court of

Sixth Circuit.

Argued: Nov. 2009.

Decided and Filed: March 2010.

OPINION CLAY, Judge. Circuit appeals Defendant Barbara Wallace following conviction and sentence her con- perjury viction for in violation of 18 U.S.C. § conspiracy possess with intent oxycodone (OxyContin) in distribute vio- 841(a)(1), § lation 21of U.S.C. and use of a facility drug communication to facilitate a 843(b). § crime in violation of 21 U.S.C. appeals challenging She both her convic- tion the procedural and reasonableness of reasons, her sentence. For the following AFFIRMED, Wallace’s conviction is but VACATED, her sentence is and the case is REMANDED re-sentencing. for

BACKGROUND drug Wallace has been tried twice on the charges. A first trial ended in mistrial jury when the could not reach a unanimous A verdict. new indictment filed was add- ing perjury two counts of based on Wal- testimony lace’s at the first trial. The perjury drug charges and were tried to- gether at a second trial where Wallace was guilty charges. found of all Proschek, given E. She was ARGUED: Eric Law Of- sentences, fice, longest concurrent Bay City, Michigan, which Appellant. for Parker, seventy-eight was months. Janet L. Assistant United States Attorney, Bay City, Michigan, Appel- for Wallace came to the attention of authori- Proschek, lee. BRIEF: ON Eric E. Law following investigation began ties Office, Bay City, Michigan, Appellant. Saginaw, Michigan. in Federal authorities Parker, L. Janet Assistant United States suspicious were of a series of packages Attorney, Bay City, Michigan, Appel- a “Kim Saginaw sent to Smith” in lee. in addresses California that did not exist.

A package intercepted was in October MERRITT, CLAY, Before and drug picked and a detection dog McKEAGUE, Judges. Circuit package package up.” out of a “line

postal inspector opened package and CLAY, J., opinion sixty delivered the of the OxyContin. found tablets of In con- court, MERRITT, J., joined, in delivery which package, nection with the of this a separate also filed a concurring opinion (p. search warrant was executed which re- 808). McKEAGUE, 808-12), (pp. recipient J. vealed that the intended separate opinion delivered a in concurring Upon investigation, Wardell Amos. further part dissenting part. was determined the addressed re- OxyContin in violation of 21 Smith,” Amos distribute not exist. “Kim did cipient, 841(a)(1) and misuse of a commu- U.S.C. government with the cooperate agreed facility drug nications connection with home. call Wallace’s phone placed 843(b). of 21 offense violation U.S.C. Drug Enforce- investigation, During the previous was added to a indict- (“DEA”) agents copies found Agency ment Amos and ment that had included Wardell of similar packages Express Mail of six Superced- Dameon A Fifth White-Baber. “Kim from California weight sent Amos from the ing Indictment removed identified on packages One Smith.” indictment, following plea, his and added a of 435 address Jean Wallace the return of a against count Wallace for use second Place, Angeles, Los California. East 84th facility drug to communication commit was 433 East mother’s address Wallace’s 843(b). in violation of 21 crime U.S.C. Angeles. The defen- Place in Los 84th trial on Security cam- The first commenced December name is Jean. middle dant’s 5, 13, continued until December Angeles in Los 2006 and post at the office eras 2006, when a mistrial was declared because boyfriend her Da- and showed Wallace jury office the could not reach unanimous entering post meon White-Baber 28, 2007, mailing February out the verdict. On a Sixth filling and showed Wallace Superceding included a doll that Indictment was issued package The label. sending to a against drug claimed she was It included the five later Wallace. Wallace OxyContin previous from the indictment and charges relative of White-Baber. for the doll. The packaging perjury, counts of in of was inside added two violation completed 1621, stipulated that Wallace on testi- parties 18 U.S.C. based Wallace’s packages Mail label for trial. At a Express mony at her status conference 20, 28, 5, May 2004 and October April judge, mailed on on 2007 before the district 2004, the la- completed while White-Baber and her counsel stated Wallace packages sent to Amos’ ad- they making bels for other had discussed a motion at trial drug charges. testified her first and perjury dress. Wallace to sever family referred to her that she understood that White-Baber’s Wallace stated separate perjury as “Jean.” she could ask to and try to all drug charges, but she wanted Additionally, August on Wal- together. began The second trial counts to a and went Western lace White-Baber 15, 2007, drug perjury and May on and the to cash a five hundred dollar Union Office Defendant charges together. were tried At in name. her money order Wallace’s to acquittal pursuant filed a motion for trial, testified that she did initial Wallace of Federal Rules of Criminal Pro- Rule 29 At the any with of the cash. up not end jury that was denied. The convict- cedure trial, clerk tes- the Western Union second all counts. was sen- ed her of Wallace to policy office would have been tified that in seventy-eight prison. tenced to months Wallace, money since the wire hand the timely appeal She filed an of both name, it. At signed in and she for was her and the conviction sentence. trial, clarified that she the second Wallace money whether the was did not remember DISCUSSION to her but insisted that initially handed Perjury Drug eventually. I. and up with it Joinder ended White-Baber Charges. charged August Wallace was chal Defendant’s first conspiracy with a four-count indictment joinder lenging her conviction is intent to distribute and possess drug perjury charges improp- objections, was substantive such as a double briefing Abboud, er. It is unclear from Defendant’s jeopardy claim. this Court challenges whether she the indictment it- found that the defendant had failed to improper joinder self as or the actual any make objections, substantive and that trial, analysis nor is it clear that the would had, even if claim he his multiplicity be different based on which of those two indictment, based on separate counts things actually challenging. check, for each Certainly lacked merit. she is challenging, No matter what “plain error” is general appel- rule for stand because Defendant verdict must late review of a district court decision separate right her trials on the waived a party where failed object, but in this drug perjury counts and has suffered appeal would fail under harm no constitutional as a all result of standard. charges being together tried single While provides Abboud the framework trial. Defendant admits that she did not to analyze how challenge substantive object joinder to the of the drug perju- improper joinder trial, of counts for ry charges pursuant to Federal Rule of present Wallace fails to arguments Criminal Procedure 14. Under Federal that framework. primary chal- 12(b)(3), Rule of Criminal Procedure a lenge joinder is to the of perjury 14 charges Rule motion to sever must be drug charges, but goes beyond she 12(e), raised any before trial. Under Rule alleged defectiveness of the indictment to 12(b)(3) objection Rule is waived if not argue government improperly prior made the allotted time to trial. A shifted the burden and away took Wal- may court grant relief from the waiver “for lace’s Fifth right Amendment to silence on 12(e) (“A good cause.” Fed.R.Crim.P. par- the drug charges. To begin, Wallace 12(b)(3) ty any defense, waives Rule objec- makes a broad challenge joinder to the tion, or request by not raised the deadline perjury both the drug It counts. 12(c) the court sets under Rule by any uncontested that Defendant waived provides. extension the court good For right might she have had to contest the cause, may grant the court relief from the joinder charges fact, of these for trial. waiver.”). Defendant affirmatively, stated on the rec- argues Defendant that her failure to ob ord, preferred that she just to have one ject to the allegedly prejudicial joinder (J.A. 465-66). trial. The clear meaning means that the district court’s decision 12(b)(3) Rule indicates that Wallace waived subject should be considered to error right to make this argument before support, review. For she cites United Abboud, this Court. See 438 F.3d at 567 Abboud, States v. 438 F.3d 554 Cir. (finding Defendant who did not make 2006). Abboud is silent on the standard of objection 12 Rule could challenge not review for these claims. That case dealt indictment and could only challenge inde- awith defendant’s challenge to an indict pendent errors); also, “substantive” see charged ment that separate as counts each Sturman, United States v. 951 F.2d check in a kiting check scheme. The de (6th Cir.1991) 1476 (finding severance fendant had not a proper objection, made argument waived when it was not renewed and the analyzed Court argu whether the trial). during ment was therefore waived. The principal holding relevant is that even if a explains defendant Wallace never the basis for her object procedural fails to to the violation of that she has not waived her indictment, an improper she can still right issue, make to contest this nor does she grant points. argues improper relief She that this Court should indict- argue cause.” The “good prosecutor impermis- waiver for ment allowed the from the that of a defendant cites include sibly cases she shift the burden to Wallace and that moved under Rule properly who the indictment denied Wallace her Fifth charges, unrelated allegedly sever right Amendment to remain regard- silent Graham, v. United States 275 F.3d ing drug charges.2 (6th Cir.2001), and that of defendant appears Wallace to contend that the bur- separate trials for who moved create proof improperly in a den shifted v. defendants, United States multiple prosecu- series of statements made (6th Cir.1995). Breinig, tor. The statements about which she com- dealing with the deferential These cases plains appear problematic. do to be accorded a district court’s standard be instance, complains For a Rule 14 motion have no decision on prosecutor argued “expects that Wallace in which no Rule 14 relevance you testimony to believe” the at the first made, was ever and which the motion just trial and that “she did not know and specifically stated on the record Defendant did not care.” It is unclear what burden only one trial. Defen- that she desired allegedly shifting. this is Prosecutors are explicit precludes waiver this Court dant’s out point jury allowed to what evi- addressing any solely claim based testimony support dence and their case so joinder drug perjury long they as do not exceed the bounds of counts.1 It propriety. shifting is not the burden of right to chal- Since Wallace waived proof nothing to state “there is improper joinder on its own lenge the testimony. substantiate” Wallace’s These terms, “question then becomes wheth- merely statements are comments on the any substantive er made ob- ] Defendant! evidence, and any Wallace fails to offer joinder. jections” allegedly improper in support argument. case citations of her Abboud, 438 F.3d at 567. Wallace sets Fifth terms, challenge Her Amendment no in these and it is forth equally argues flawed. Wallace that she likely right that she has waived her to right lost her Fifth Amendment to remain Id. object. (finding waiver where defen- regarding drug a charges never claimed violation of a substan- silent as dant joinder right). tive brief can be read result of the district court’s of the favorably drug perjury charges. to raise several substantive and She chose to issue, us, argument, 1. Defendant makes no and there is this but on the before record record, support suggest no in the would appears knowing voluntary. waiver to be knowing that the not and volun- waiver was tary. The waiver at an occurred on-the-rec- argues 2. She also that "other unfairness" oc- conference, pre-trial At that ord conference. during curred the trial "which will be not attorney agreed and Wallace Wallace's separate subject of issues this case but they having had discussed two trials or one pointed should be out to the court." trial, right request that Wallace to had (Def.Br.15). govern- She mentions the then trials, separate and that her waiver meant alleged ment's accusation that Defendant's perjury drug charges would be perjury tried to and a counsel suborn Federal together. specifically tried Wallace stated 404(B) Rule of Evidence issue about Wal- (J.A. choice was to have "one trial.'' her previous lace's use of alias. Because De- 465-66). knowing Without the context of are fendant asserts these not previous communications between Wallace Court, issues for this we decline to consider attorney, express opinion and her we no them. provided whether he ineffective assistance on 800 trial, evidence, charges reviewing sufficiency tried in one of the

have both “ testify ‘whether, chose to at the second trial. inquiry she the relevant after government The did not force her to re reviewing light the evidence in the most try charges single to in a trial or quest prosecution, any favorable to the rational testify at trial. the second Because trier of fact have could found the essential person is entitled to waive a constitutional beyond elements of the crime a reasonable ” right as a matter of trial strategy, see (quoting doubt.’ Id. United States v. Kassulke, 138, Watkins v. 90 F.3d 142-43 (6th Cir.2004)); Meyer, 359 F.3d (6th Cir.1996), Wallace cannot now com 307, 319, Virginia, Jackson v. 443 U.S. perceives harm she plain about have (1979). S.Ct. 61 L.Ed.2d 560 explicit resulted her waiver The first perjury count dealt with Wal- right separate to move for trials. Wal testimony lace’s from the first trial that lace’s Fifth Amendment claim is different family referred to White-Baber’s rights from the at in the substantive issue the name testimony Jean. This was rele- instance, cases discussed in Abboud. For vant because Wallace used the name “Jean Rosenbarger, United States v. 536 F.2d Wallace” on mailing the return slip (6th Cir.1976), the defendant failed to package she mailed that Oxy- contained trial, lodge multiplicity objection but pills. mailing Contin address on that object he was still multiplici entitled label was a variant of her mother’s ad- imposed tous sentences in violation of the dress. The government contends that also, Jeopardy Double Clause. See Wallace used her middle name and the Adesida, States v. fake address to reduce her risk being Cir.1997) (holding object that a failure to drugs. connected to the appeal, On Wal- duplicitous to a indictment did not affect challenges lace both whether sufficient evi- right defendant’s to challenge possibili supports finding dence the state- ty aof less than unanimous verdict for ment was false and whether the statement offense). case, each In the instant was “material.” had a Fifth right Amendment to remain silent, but she chose exercise it. government came reasons, For strategy may she have decid forward with sufficient evidence that would having ed that all the elements tried to jury allow a reasonable beyond to find a gether was a better In any decision. reasonable doubt that Wallace’s statement event, she cannot escape consequences Budd, in the first trial was false. 496 F.3d of that decision it in because resulted her instance, government 530. For testifying about the drug transactions in points to evidence that White-Baber’s fa the context defending against of herself ther and aunt called Wallace “Barbara” perjury charges. and not “Jean.” White-Baber’s foster mother also referred to her as Barbara in Acquittal Perju- II. Motions for on the Amos, testimony. her Wardell who Wal ry Counts aunt, lace believed to be White-Baber’s appeals Wallace also the denial not called during Wallace “Barbara” of her Rule 29 motion for acquittal on the testimony but also called her “Barbara” perjury counts. Because Wilson made phoned when she Wallace at the behest of such a motion at the close of all proofs, we the DEA on day of Amos’ arrest. review the district deny court’s decision to evidence, Wilson’s motion novo. provided de United States v. Wallace no other Budd, Cir.2007). 496 F.3d than testimony, anybody her own ever Jean, intentionally with an false package stated her a name. her and Wallace called package “Barbara Wallace.” She also Wallace asserted was a full name as White-Baber’s, ap- on her gift include “Jean Wallace” to a relative of so no did not employment when explanation explain for federal reasonable exists to plication had ever list other names she a why asked to she would use fake name. The use appeal certainly used. Wallace’s of a false name and address is specifically testified that no witness jury’s inquiry relevant to the central at the family call they had heard White-Baber’s first trial concerning whether Wallace was Nonetheless, name. a any particular knowing drug conspiracy. a member relatives re- number of White-Baber’s normally go of a name The use she did not “Barbara,” they if to her as even ferred by her claim that thought undermines she addressing ques- not were innocently a mailing she was doll. tion. perjury charge The second deals Furthermore, surrounding the the facts with Wallace’s statement at the first trial out two address labels filled Wallace signed that while she from West $500 that “Jean Wallace” was support finding a Union, ern she did not know how much her real name. On the being not used as was, money money actually and the was name where she listed her as package handed to White-Baber. does not Wallace “Jean,” a real address. she did not use challenge sufficiency of the evidence claim that she was This undermines her alleges but that the false statement was thought name because she using her own material, that: “It arguing mattered a loved one. package gift was a not one bit to the issues December of slip out a later that included Wallace filled testifying 2006 when she was about stand name and a variation of White-Baber’s ing right next to White-Baber in front of Based on slightly also a altered address. the clerk at Western and after hav Union evidence, jury could find reasonable ing pur filled out some documents for the beyond reasonable doubt Wallace receiving money pose whether not called “Jean Wallace.” was handed to her or to money White (Def.Br.22). materiality This ar that the Baber.” argues addition gument must fail because one of the counts alleged misstatement was not material. against using false declaration satisfies the materi Wallace was Western Union “[A] proceeds drug if truthful ality requirement statement to receive sales. ... intentionally have assisted or influenced the Whether she cashed and re might States v. money ceived Union or un jury investigation.” its Western (6th Cir.1987). Swift, knowingly certainly aided White-Baber charge use that she used a Had admitted that she did not relevant Wallace Wallace,” jury facility would communications to receive funds the name “Jean mailing drug that transaction.3 have understood Wallace was jury argues Count was then refers to the fact that the instruc- 3. Wallace also that VII making perjury alleg- what ambiguous, impossible to know ex- tions do not state date the edly happened they that did actly alleged perjury what she committed. and the fact dispute perjury that count reference cash when the whole was Wallace states when the gov- receipt $500 The regarding the Western Union statements was about the of in cash. instructions, closing argument apparently incorporated jury in nev- into the it sim- ernment falsely "regarding exact ply er referred to the false said she testified allegedly receipt that made. This of the Western Union Wire Transfer statements Wallace 8, argument merit. Wallace Money 2006.” She entire is without Order on December III. Procedural Reasonableness of lace’s two level increase for obstruction of Second, justice, swing. Sentence there is a five level anemia, White-Baber has sickle-cell which appeals must re “[C]ourts all parties agree led the district in ... view all sentences under deferential vary that case downward from the sen- abuse-of-discretion standard.” Gall v. tencing guidelines. problem The with the States, 38, 41, 552 U.S. 128 S.Ct. government’s argument justi- that is these (2007). 169 L.Ed.2d 445 Where fications, government while offered party object procedural has failed to to a sentencing hearing, at were never defect, procedural un we review claims adopted acknowledged by or even the dis- plain reasonableness for error. United judge. trict (6th States v. 516 F.3d 385-86 Cir.2008) (en banc). The judge, district The judge’s discussion of the government the behest of the reference 3553(a) very factors was abbreviated. He Bostic, v. United States F.3d 865 sentencing pursu- stated that he was (6th Cir.2004), inquired as to whether Wal ant to “careful consideration of the factors “any specific objections you lace had that give we are also to consideration to imposed.” would make to the sentence under Title the United States Code respond any objec Wallace did not 3553(a).” Section In United v. States tions, appeal subject plain so her Chandler, Cir.2005), error, error review. To show a de this Court noted that require- “there is no (1) (2) fendant must show error that was ment that the district court ... engage (3) clear, or obvious affected defen 3553(a) a ritualistic incantation of the (4) rights dant’s substantial that af factors [but that] district court’s sen- fairness, fected integrity, public tence should nonetheless reflect the con- reputation judicial of the proceedings. 3553(a).” (citations siderations listed in Vonner, 516 F.3d at 386. omitted). quotations The district challenges procedural Wallace judge’s sentencing colloquy noted that reasonableness of her sentence based on Wallace, through profession, pro- the district court’s failure to consider her viding community. service to the It noted longer that she received a sen that her association with White-Baber was White-Baber, tence than even though he a mistake that has led to the “tragedy” played a larger part much in the conspira her conviction. The noted cy. government responds with sever “significant would have a sen- al arguably explain factors that the sen tence to serve” expressed but also tencing disparity point but can part to no confidence that she still had “a full life to sentencing transcript that shows live and a your contribution to make to the district court ever considered (J.A. 826-27.) children’s lives.” government these issues. The first notes the fact that pled White-Baber guilty Nowhere in the hearing did corresponding received the reduction his the district judge why sentencing discuss sentence. drop Between the three level long Wallace to twice as as White-Baber acceptance responsibility appropriate. During Wal- was the sentencing support, cites case clearly no law for and the indict- instructions refer to Western Un- the

ment, transaction, given jury, jury which was is unquestionably clear ion and the testimony alleg- about allegedly which at the first trial understood what false statements Further, edly perjury. jury constituted the were at issue.

803 disparities criminal conduct—not be as fol- lar argued counsel hearing, Wallace’s v. co[conspirators].” United States tween lows: (6th Cir.2008). Conatser, 508, 521 514 F.3d unique in the this is point this Court At required not to consider judge A district I think it’s clear perspective of co- disparity the main ac- between sentences White-Baber Damien however, OxyContin. judge, “A It was his district of all this. defendants. tor money orders most of or her discretion and Obviously may exercise his Damien White-Baber. coming to in light were sentence determine a defendant’s that —that oc- transactions It was his sentence.” United of a co-defendant’s ship- again on the and over (6th curred over Simmons, 501 F.3d v. States It all everything. of this and ping Cir.2007). In instant Wallace is 100 per- Baber is White goes procedural challenging reasonableness —Damien that’s everything, involved cent based on the district of her sentence everything he was guilty to why pled he ar failure to consider non-frivolous court’s with. charged for a lower sentence. Whether guments Wallace, in- who was Barbara now So judge argu decides to consider packages two preparing volved with discretionary, argument ment is but the packages label on two mailing putting See, certainly e.g., non-frivolous. order, is now money signing for one Presley, v. 547 F.3d States that are sentencing guidelines facing Cir.2008) the district court (noting Mr. Baber was triple what double or “need to avoid an unwar considered the actually to. sentenced the defendant’s disparity” ranted between recognize I would ask the Court —we sentence and a co-defendant’s sentence as are, ask the but we guidelines what the consideration”). important “the most sentencing its wisdom Court to use light of the ones—Mr. Barbara to—in a par a defendant raises ‘When a lesser sentence. Baber received ticular[, seeking nonfrivolous] (J.A. 820). judge sentence, was com- The district reflect a lower the record must argument. non-responsive to this pletely that the district considered both in issu- of White-Baber His mention argument and defendant’s acknowledge ing a sentence was rejecting it.” Unit explained basis error, important “made one F.3d Gapinski, ed States v. Damien, and she’s here with association (6th Cir.2009) v. (quoting United States that, trage- and it’s a today a result of as (6th Cir.2007)). Lalonde, 750, 770 (J.A.826). dy.” record, failure judge’s the district On properly apparent address this issue is sentencing considering the sim we are unable to answer because to address judge’s obligation judge de question why the district ple 3553(a)(6), under this Court disparities than impose a sentence more cided that, “the need to avoid been clear has The dis long twice as as White-Baber’s. among disparities unwarranted sentence proposed in the sentences was parity have records who defendants similar argument for a point central of Wallace’s conduct,” does guilty been found of similar sentence, way of but we have no lower co-conspirators. 18 U.S.C. apply dispari extent the 3553(a)(6). knowing how or to what factor concerns na “[T]his judge’s ty argument influenced the district defendants with disparities between tional eventual sentence. convicted of simi- criminal histories similar 2456). facially Vonner, government provided legiti U.S. at 127 S.Ct. In why disparity appro mate reasons the is judge extremely the district was brief in namely obstruction of priate, did, analysis, cursory his but he albeit in a justice, acceptance of re manner, White-Baber’s consider or show understand- his sickle cell anemia. sponsibility, and ing arguments of all of the defendant’s for Nonetheless, this Court cannot determine leniency. The district court in this case why thought ap the district court it was sentencing disparity was silent on the is- propriate that and Wallace White-Baber sue and did not even mention disparate should receive such sentences. 3553(a) of the factors. prosecutor pres “Where the defendant or It is uncontested that Wallace was not imposing ents nonfrivolous reasons for conspiracy the mastermind of the and that sentence, however, judge different the will White-Baber was more involved. While normally go explain why further and he government the offered a reasonable ex- rejected arguments.” has those Rita v. planation sentences, disparity the States, 338, 357, 551 U.S. 127 S.Ct. the district court should not be allowed to (2007). Rita, In 168 L.Ed.2d 203 delegate obligation its in open “state unlike this the “record makes clear court the imposition reasons for its sentencing judge listened to each particular prosecutor sentence” to the argument.” Id. at 127 S.Ct. 2456. 3553(c). the defendant. A U.S.C. judge The district in this case did not adequately explain “must cursory make even a mention of the dis chosen meaningful sentence to allow for parity in sentences between White-Baber appellate promote and to per- review and Wallace. Gall, ception of fair sentencing.” 552 U.S. The question that remains 50,128 at S.Ct. 586. whether this error satisfy is sufficient to every From it perspective, preferable stringent standard of error re for district explicitly courts to address view. This opinion Court’s in Vonner every by nonfrivolous raised shows that plain error review should be Expressly defendant. articulating the extremely sentencing deferential grounds rejecting particular Nonetheless, judge. even under this more defendant, by claims raised at least standard, deferential this case must be respect to a defendant’s nonfrivo- remanded for It re-sentencing. is well- arguments, promotes lous several criti- settled that a district “give need not (1) goals: provides cal it the defendant rejecting any the reasons for and all argu with a clear understanding of the basis parties ments for alternative sen (2) sentence; for his or her it tences,” allows the give nor must she specific “the public to understand the rationale un- reason” for a within-guidelines sentence. sentence; (3) Vonner, derlying the chosen In F.3d 387. how ever, helps this Court avoid the majority difficulties acknowledged that the parsing question transcript crucial when is “whether ‘the record determining makes clear that whether the district sentencing judge court lis tened to each fact argument,’ argu- ‘considered considered the defendant’s evidence,’ fact, supporting ‘fully ments. if fully district courts aware’ of complied obligation, many defendant’s circumstances and took with this friv- ‘them into account’ in sentencing appeals him.” olous and clarification remands States, (quoting Id. Rita v. United could be avoided.

805 Petrus, 347, court where 353 from the district issue is “con v. 588 F.3d States United Cir.2009) (citation straightforward such that (6th ceptually we quotation and omit assume, ted). may express analysis even absent by the that the sentence judge, reflects emphasize both and Vonner Rita argument,” consideration of the and the clear that “make[] must the record factual) argument purely legal, was not judge considered the evidence sentencing (citation omitted); quotation and United at 387 516 F.3d arguments.” and (6th Duane, 441, States v. 533 F.3d 453 Rita, 359, at 127 S.Ct. 551 U.S. (quoting Cir.2008) (affirming sentence where dis 2456). transcript sentencing On the respond trict court to a nonfrivo did hearing, simply we cannot determine “the argument lous because district court judge considered the whether the district sentence, imposed a within-Guidelines ad and White- disparity between Wallace’s relevant, dressed the factors it found and This failure to even sentences.4 Baber’s majority addressed [Defendant’s] argument man- acknowledge Defendant’s arguments”); Lapsins, United States v. Petrus, in this 588 dates remand case. See (6th Cir.2009) 758, 774 (affirming 570 F.3d (affirming where “the F.3d at 355 sentence sentence where the district court did not that the district court con- discloses record specifically respond argu to Defendant’s rejected posi- the Defendant’s sidered and ments because it stated “that it had ac tion”). right to have the Wallace has counted for the ‘nature and circumstances’ arguments consider her sentencing judge history of the offense and and the disparity The be- for a lower sentence. [Defendant]); characteristics of but see is a tween her sentence White-Baber’s Blackie, 395, States v. 548 F.3d 401 United requires the sentenc- argument valid (6th Cir.2008) (finding district court why to consider the less-involved ing judge “plainly erred when it did not refer to the long be sentenced to twice as party should applicable range Guidelines and failed to was, of incarceration. The error period provide specific upward its reasons for an therefore, be plain, and the case should departure or variance at the time of sen judge the district to consider remanded for tencing); States v. BarahonaM United disparity about the be- argument Wallace’s (6th ontenegro, 565 F.3d 984 Cir. tween her sentence and White-Baber’s. 2009) (remanding resentencing where is fre acknowledge issue We sentence the “district court’s oral fail[ed] reject litigated, and we have often quently clearly appropriate to calculate Guide challenges. general A sense of ed similar range, adequately not] lines but also [did courts on deference to district sentence”); explain the chosen us to affirm sentences where leads Thomas, (6th F.3d 341 States v. fully explain has failed to Cir.2007) (remanding resentencing See, Petrus, e.g., the sentence. reason for for reasonableness where Court review (affirming sentence where 588 F.3d “unsure as to whether the district was arguments “in a bare- rejected addressed adequately court considered fashion.”); v. regarding United States Sim arguments proper bone [Defendant’s] Cir.2009) 3553(a) mons, factors or application misconstrued, ignored, forgot comment whether (affirming sentence with little acknowledged argument, and the dissent 4. dissent's contention that "it is clear” The inten- rely argument the district court considered is left to on the fact rejected unsup- tionally straightforward.” "conceptually remotely portable. district court never arguments); parties’ arguments United States considered the [Defendant’s] and has (6th Johnson, 690, 700 exercising v. 488 F.3d Cir. a reasoned basis for his own 2007) ”) (remanding when was “unable legal decisionmaking authority’ (quoting, Court Rita, in point anything 2456); to the record to con 551 U.S. at 127 S.Ct. firm” the Court’s view that district court Lapsins, (noting 570 F.3d at 774 that “the and the need to understood its discretion record reveals that judge the district con- 3553(a) factors); § consider the sidered arguments and evi- [Defendant’s] Howell, 06-4306, States v. No. 2009 WL support dence in of a downward vari- Nov.12,2009) (finding ance”). Cir. plain error based the district court’s record, simply Based on this we cannot in explain part failure to its sentence be tell whether the district court considered explanation cause the district court’s left primary argument Wallace’s for a lesser re why Court unsure co-defendants argument sentence. The was Wallace’s sentences). substantially ceived different main reason for a lower sentence and was binding precedent These cases are all on clearly requesting made terms of a re- them, any this Court. None of nor other duced sentence. judge’s The district fail- find, case we can indicates that this Court ure to even so much as acknowledge the part should affirm a sentence when no argument constitutes error that was the record makes clear that the district clear, obvious or the first two prongs of judge argu- even understood Defendant’s plain error review. explain We below how Here, argument ment. primary Wallace’s the dissent misses its mark with its un- disparity lesser sentence was the founded contention that the district court’s between her sentence and White-Baber’s. error did not affect Defendant’s substan- assuredly This non-frivo- rights. tial government only point lous. The can error,” “plain To show Wallace needs to issues it raised itself explain dis- also demonstrate that the error “affected crepancy, nothing judge the trial said defendant’s rights” substantial and that it way responds to argu- fairness, integrity, “affected the public ment. reputation judicial proceedings.” Blackie,

Other than the district judge’s 516 F.3d at 386. presence courtroom, in the the entire sen district court had issued a sentence with- tencing transcript fails to make clear out calculating guidelines range whether the district given even considered had guidelines sentence outside the argument, and “our law range providing case and the without specific reasons. Federal Rules of Criminal Procedure indi The Court determined that proce- these that, matter, procedural cate as a implicated the dis dural right errors a defendant’s trict judge generally speak must to argu meaningful appellate review because the clearly ments that are presented requirement and in explain district court Simmons, dispute.” 3553(c), § 361. See its sentence in “facilitates such a Petrus, (acknowl also 588 F.3d at by requiring review the district court to edging that the district court specific “addressed state its imposing reasons for every Blackie, position advanced particular Defen sentence.” 548 F.3d at Duane, dant”); (ac 533 F.3d at 451-52 402. The Court Blackie held that a knowledging 3553(c)(2), § Rita’s instruction that “a sen violation of which deals with tencing court should enough ‘set forth sentences guidelines, outside the affected a satisfy appellate court has rights. logic [it] defendant’s substantial applies equal force to claims guidelines under side the range. In this 3553(c)(1), § and the other circuits permissive under the most reading of Blackie court relied on had made no differ 3553(c), failed to satis entiation subparts between fy requirements. those The substantial 3553(c). Lewis, See United States v. 424 right to meaningful appellate review is (2d. Cir.2005) F.3d (holding that 3553(c)(1) identical § under both and 3553(c) “Section bestows on defendants the 3553(c)(2). § Although at least two other right to argue effectively more ... a rejected circuits have the approach in sentence right is ‘reasonable.’ This seems Blackie, e.g., see United States v. White ”); to clearly us to be ‘substantial.’ In re law, (5th Cir.2009); 580 F.3d 256 Case, (D.C.Cir. Sealed 193 Mendoza, States v. 543 F.3d 1186 2008) (following the Second Circuit in hold Cir.2008), Blackie is nonetheless binding ing that provide “failure to a statement of Court, on our and no circuit of which we 3553(c) required § reasons as by plain is are aware has created a distinction be error, even length when the of the result 3553(c)(1) 3553(c)(2).6 § tween § and ing sentence would otherwise be reason able”) (citation omitted). Blackie also quotation compels and a finding that fail 3553(c) comply § ure to with also affects Therefore, logic we follow the of Blackie “fairness, the integrity, public or reputa 3553(c) § and find generally impli- judicial tion of Blackie, proceedings.” In cates a “substantial right.” The right at the Court noted that compliance with issue is right meaningful the appellate 3553(c) § “important is for the right equally review. That substantial defendant, but public also for the ‘to learn for someone who is sentenced to either a why the defendant received a particular guidelines or an above-guidelines sentence ” sentence.’ 548 F.3d at Rita, (quoting 403 In sentence. In re the Supreme Court Case, 191). Sealed 527 F.3d at specifically As noted that “when a stated judge de- Court, the simply Supreme cides apply compliance the Guidelines to a with 3553(c) § particular doing judicial “reflects practice so will not sound necessari- ... ly require lengthy in explanation.” judge’s Confidence 551 U.S. use of reason at public’s S.Ct. 2456. That underlies the in language judicial trust the expressly deals with whether institution. A public has statement of those 3553(c).5 complied § with require- helps provide The reasons public with the ments of satisfying the Rita, commands of assurance that creates that trust.” 3553(c) § are what separates a sentence 551 U.S. at 127 S.Ct. 2456. There within guidelines range fore, and one out- the district court’s failure to comply distinction, appears Blackie, 5. The dissent to miss this 6. In Court avoided quoting length finding comply Vonner's discussion failure of with 3553(c)(1) affected a opinion right. this section substantial arguing of the Rita The acknowledged Court unpublished opinion Wallace failed to demonstrate that the error holding contrary. United States v. Her implicated right. a substantial how- nandez, (6th Cir.2007). Fed.Appx. ever, explicitly never addresses the two Hernandez, however, approach The is irrec prongs plain error review that Hernandez, oncilable with Blackie. In argues satisfy, dissent Wallace failed to and it right Court never meaning considered the apparent that Vonner found the district review, appellate ful right the substantial rec explanation court's abbreviated was not a ognized in Blackie. pub Because Blackie is error, clear prong plain the second of error lished, unpublished, we are Hernandez review. required to follow Blackie. aWhere argument. “fairness, “disparity” 3553(c) in- Wallace’s affected §with a few point main is stated judicial pro- defendant’s reputation tegrity, public sentencing, it writes before minutes ceedings.” existence to statutory requirement out approach the dissent’s adopted If we the sen- to the statute —that say contrary — third failed to meet the found Wallace give reason court need not tencing review, we error prong fourth point. main regarding defendant’s 3553(c) re- to reduce begin would statutory required to follow are Courts irrelevancy re- almost quirements er- describe However we commands. sentences. guidelines within spect to intentional, unplain, plain, negligent, ror — world, a result such post-Booker I, obvious, was violated. etc.—the statute guide- highly problematic. be would therefore, opinion Judge Clay’s concur range mandatory, and not are lines the dissent. disagree and provides themselves guidelines within that, judicial discretion room for ample McKEAGUE, concurring Judge, Circuit exercised, explained be should when part. dissenting and in part in addition, im- effectively to In defendant. majority’s in the conclusion I concur 3553(c)(1) appellate from § errors munize convic- Barbara Wallace’s that more defendant even incentive provide would review I also concur in be affirmed. tion must mindlessly apply the to courts to district that defendant because the determination them ex- utilizing own without guidelines objection her in properly preserve did not is arrive at a sentence pertise court, claim that her present “sufficient, than neces- greater but not unreasonable procedurally is 3553(a). the sentence By finding § sary.” 18 U.S.C. I only plain error. subject to review for is of for the commands disregard blatant majority’s formulation of the in the 3553(c) error, concur its “help we maintain plain our governs four-part standard mandatory, not some requirements as Yet, majority’s despite the analysis. con- error ignored formality that can be without efforts, unpersuaded I Blackie, remain at 403. considerable sequence.” sentencing procedural er- court’s proce- therefore sentence was Wallace’s ror, failing explain its adequately unreasonable, plain er- even under durally decision, affected defen- either review. ror affected the rights or dant’s substantial CONCLUSION fairness, reputation integrity, public or Hence, although judicial proceedings. reason, con- foregoing For the with Wallace’s unsympathetic I am not AFFIRMED, is but her sentence viction leniency, it is evident that she for request VACATED, and case is REMANDED meeting carried her burden has not re-sentencing. for relief prerequisites third fourth dissent, respectfully I there- plain error. MERRITT, Judge, concurring. Circuit fore, vacating the sen- the decision 3553(c), sentencing Under U.S.C. remanding re-sentencing. tence and “rea- required give its expressly court recognized expressly sentence; require- is a Defendant for its sons” court had sentencing that the district branch must legislative we ment advisory correctly applicable calculated the and it did occur maintaining insist to 97 months. range to be 78 mis- Guidelines court below simply case. The in this allocution, her attor- both Wallace acknowledge to mention or takenly failed ney “mercy,” asked the court to have cit- sickle cell anemia condition. The AUSA ing such considerations as: her lack of a concluded her observing remarks record; prior steady employ- criminal her really “there is no reason not to impose a history “serving person” ment as a guideline sentence” and arguing that Wal- (nurse’s assistant at a VA medical center lace should therefore be sentenced within California); single motherhood of i.e., range, Guidelines on par with simi- children; relatively two small and her in- larly nationwide, situated offenders be- significant drug trafficking role of- cause such consistency very is the purpose (in comparison culpable fense to her more of the federal Sentencing Guidelines. White-Baber, boyfriend, Damien who re- Immediately remarks, after the AUSA’s months). ceived a sentence of the district court declared its sentencing Wallace did not ask for a depar- downward judgment and very rationale succinctly: any type ture of and did not expressly request propose a downward variance It tragedy is a that Barbara Wallace from the range. Guidelines Neither she inis court to be sentenced this after- attorney suggested nor her a specific pris- noon. The—she walked the wrong road “sufficient, on term that would be but not but corrected it and accomplished some- greater than necessary, comply with the thing in her life maybe not all mem- purposes sentencing].” [of 18 U.S.C. family bers of her had. She was active 3553(a). Their unspecific request for in service as a part of her work to mercy reasonably could be construed as patients. clearly She made one impor- seeking either a downward variance or error, tant Damien, her association with a simply sentence at the low end of the and she’s today here as a that, result of advisory range, Guidelines the latter of tragedy. and it’s a which Wallace received. given every The —I’ve careful consid- government, For the the Assistant U.S. eration that I any can to objectively Attorney responded by emphasizing Wal- reasonable basis for a departure from persistent lace’s refusal acknowledge guideline the range, fully considering culpability her and accept responsibility the fact that we by are not bound the wrongdoing. for her The AUSA also not- guideline range, but nevertheless being ed additional indicating evidence that Wal- able [sic]1 determine objectively lace’s involvement in the drug trafficking predicate reasonable for departure be- scheme was not as limited as the conduct guideline low that range that also re- for which she was convicted. The AUSA spects the conclusions that jury identified three why obvious reasons co- My only reached. hope in imposing the defendant White-Baber’s sentence was sentence that I believe is appropriate is despite more lenient greater culpabili- his (1) Wallace, that you, here, Ms. ty: leave pled White-Baber under- guilty and re- standing you ceived credit for will have a acceptance responsibili- significant of (2) serve, ty; sentence guilty Wallace was found of with the—not perjury for giving testimony hope false but and her offense the confidence that once that’s level was done, therefore you increased for obstruc- still have a full life to live and (3) justice; tion of and White-Baber re- a contribution to your make to children’s departure ceived downward due to his lives. judge

1. Whether the misspoke district or the place obvious from context of error, reporter '‘able," transcription court made a it the district meant "unable.” 19-20, sentencing disparity.” Nonethe- plain JA The district tr. at 826-27. Sent. less, of 78 wholly unpersuasive, went on to announce sentence for reasons court end of at the low imprisonment, jettisons months’ majority due deference advisory range. Guidelines re-sentencing to conclude that strains warranted. hear sentencing conclusion At the counsel, court twice asked ing, the district agree I the district court While Bostic, per United States v. job explain- should have done better (6th Cir.2004), any addi if there were ing reasoning, its Wallace has not demon- imposed. objections tional the sentence rights her were strated how substantial an counsel defendant Wallace Twice by judge’s failure to prejudiced “No, swered, your appeal, honor.” On rejected explain why disparity he ar- procedur contends the sentence is Wallace by gument. The issues presented the district ally unreasonable because quite simple. were The above ref sufficiently explain, court did not summary parties’ fairly positions 3553(a) factors, why it was erence to arguments present- the relevant embodies pris to a appropriate sentence Wallace parties’ ed to the district court. Both long than as that on term more twice as positions and court’s assessment and govern received White-Baber. occupy transcript less than eleven decision that, correctly ment contends because min- pages likely took less than ten expressly pro did not assert this Although time. the district utes’ at the objection cedural unreasonableness explain why sympathet- did not he was not sentencing, objection is deemed time disparity argument-apart ic with Wallace’s appeal only and is forfeited reviewable saying represent did error. United States v. objectively departure reasonable basis for Cir.2008) (en 385-86 range-it hardly from the Guidelines can be banc). that argued argu- he oblivious to the majority opinion fairly explains why The it, inadvertently ment or overlooked such explicitly the district court’s failure to ad- likely impose that he would different argument for dress Wallace’s non-frivolous if he were on required explain sentence to a shorter sentence could be deemed to There is suggestion remand. no procedurally render the sentence unrea- bench, the asleep, district left fell or Yet, the majority sonable. observes that hearing was otherwise the distracted question the real whether there was argument. simplicity and Considering the plain acknowledges plain error that argu- straightforwardness of Wallace’s is extremely error review deferential. ment, it is clear that the district court deference, majori- Consistent with this the intentionally rejected considered it and it. that ty recognizes plain error is remedia- considering justifica- And the three to upon showing prejudice ble by for the the disparity tions identified rights defendant’s substantial and a show- undisputed are and were stated on AUSA fairness, ing that the error “affected the immediately the record before the district integrity, public judi- or the reputation of sentence, the court announced the conclu- proceedings.” majority goes cial The practically that the dis- sion unavoidable acknowledge justifica- to the three rejected trict court Wallace’s tions for the identified sentencing disparity very just at had by sentencing hearing the AUSA reasons that the AUSA “facially legitimate” “arguably are ex- recited. Here, too, to is no manifest reason believe Id. at 387. im

There sentence (as fact, posed was within—in at the opposed to low end rights substantial range. of—the pre Guidelines It was were af- procedural rights) her technical sumptively reasonable. Under cir such failure to by the district fected court’s cumstances, Vonner, recognized as obviously im- explicit what was so make States, Rita v. reference to attorney and her did plicit Wallace U.S. 127 S.Ct. 168 L.Ed.2d 203 object, having despite not even bother (2007), gives greater leeway the law given to do so. opportunities been two court: Moreover, has not inasmuch as Wallace statute, with the also Consistent Rita rights that her substantial were shown suggests a distinction between within- affected, it follows that also failed she has outside-guidelines sentences, saying im- explanation that the lack of to show that, a judge imposes where a within- “fairness, public pugned integrity sentence, guidelines he “will normally reputation” sentencing proceeding. explain why ... he ... rejected has having thus faded to meet two of arguments” sentence, for a different but requirements essential the four that, insisting “[w]here the impos- relief, I district uphold error would outside Guidelines, es sentence judgment of sentence. court’s explain why judge will he has so.” done Rita, (emphases 127 S.Ct. add- supported conclusion is the en This ed). At the same time that the Court Vonner, reasoning banc court’s where encourages judges give court we the district court did not noted explanations “reasoned” for all sentenc- all argu- address of Vonner’s (as ing we), indeed decisions do it con- and thus failed to ments ensure Von- much, “[t]he firms that law leaves this ner, public, appeals and the court respect, judge’s professional own why picked it understood sentence Id. judgment.” appropriateness did. 516 F.3d at 386. Neverthe- length, detail, brevity or conciseness or less, was held not to constitute reme- write, say, when to what depends “plain explained: error.” The court diable upon circumstances. judi- Sometimes a explanation the court’s brief Whether responds opinion every argument; cial not, any for this sentence sufficed or it does not.” “sometimes Id. Al- potential “plain.” error was not flexibility particularly That relevant though Congress requires a court agrees when the district court with sentence, give “the reasons” for its Sentencing Commission’s recommenda- 3553(c), say that U.S.C. does not a judge simply tions. “[W]hen decides give reject- must courts reasons the Guidelines to a apply particular arguments parties and all ing by so will not doing necessarily re- for alternative sentences. The statute lengthy quire explanation” because distinguishes within-guide- also between “[cjireumstances may well make clear sentences like outside- lines this one and upon rests his decision sentences, guidelines judges to requiring own reasoning the Commission’s specific imposing “the give reason” for proper the Guidelines sentence is a sen- sentence, outside-guidelines (in 3553(a) §of tence terms and other 3553(c)(2), mandates) imposing U.S.C. but no congressional typical (“Where requirement within-guide- Id.; similar case.” see also id. at 2469 ... ... conceptually simple lines sentences. a matter is range at the low end of the sentencing her makes clear the record explaining why her dis- without the evi- judge considered sentencing I objection unavailing. was would parity not believe arguments, we do dence and judg- affirm the district court’s therefore to write more requires the law ment of sentence over defendant setting, ques- In this extensively.”)- challenge. procedural unreasonableness record makes “[t]he tion is whether sentencing judge listened clear sup- “considered argument,”

to each evidence,” “fully aware”

porting circumstances and took

the defendant’s him. into account”

“them

Id. at 2469. 387. equal reasoning applies

The above Nahzy BUCK, Plaintiff-Appellant, im- The district court force this case. v. within the Guidelines a sentence posed SCHOOL, M. THOMAS COOLEY LAW it had been range. By observing Defendant-Appellee. objectively reasonable presented with no from the Guidelines departing basis for No. 09-1508. implied agree- its range, the district court Appeals, United States Court Sentencing Commission’s ment with the Sixth Circuit. sentence. appropriate determination of the objection asserted Wal- disparity Argued: Jan. 2010. simple. The record conceptually lace was Filed: March 2010. Decided and argu- that the court shows listened supporting evi- ment and considered

dence, fully and was aware of Wallace’s them

history and characteristics and took circumstances, a

into account. Under such required. was not

lengthy explanation finally, explanation

And even if the were so meaningful as to frustrate review

deficient error, procedural constitute

and therefore carrying has fallen far short of demonstrating the error

burden ren- rights her substantial

prejudiced funda- sentencing proceeding

dered the

mentally unfair. judges though appellate we as

Even reasonably in-

might very have been well advisory vary

clined to downward from the range if we had the task

Guidelines in the first

sentencing Barbara Wallace

instance, reason to hold this is insufficient

that the district court abused its discretion

and committed remediable error

Case Details

Case Name: United States v. Wallace

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 16, 2010

Citation: 597 F.3d 794

Docket Number: 07-2230

Court Abbreviation: 6th Cir.