U.S. v. Barton

Decision Date03 August 2006
Docket NumberNo. 05-1229.,05-1229.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Douglas Alan BARTON, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Richard D. Stroba, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Hagen W. Frank, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Daniel Y. Mekaru, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: KENNEDY and COLE, Circuit Judges; VARLAN, District Judge.*

KENNEDY, J., delivered the opinion of the court, in which VARLAN, D.J., joined. COLE, J. (p. 660), delivered a separate concurring opinion.

OPINION

KENNEDY, Circuit Judge.

Douglas Alan Barton ("defendant") appeals his post-Booker sentence. In his appeal, he alleges that Booker was applied in a manner inconsistent with his due process rights. He also argues that the district court imposed a sentence that was not reasonable. For the following reasons, we affirm defendant's sentence.

BACKGROUND

Defendant pled guilty on August 11, 2004, to three counts of bank robbery, in violation of 18 U.S.C. § 2113(a). A Presentence Investigation Report prepared for defendant's sentencing using the 2004 edition of the U.S. SENTENCING GUIDELINES MANUAL ("Guidelines") calculated defendant's combined adjusted offense level as 24 and assigned him a criminal history category of VI. These scores resulted in a recommended sentencing range of between 100 and 125 months' imprisonment. The sentence was imposed on February 8, 2005, after the United States Supreme Court released its opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).1

Prior to his sentencing hearing, the government filed a motion requesting an upward departure from the recommended Guidelines range. The government argued that, in 1999, defendant was convicted of six bank robberies charged in a single indictment, and thus defendant's criminal history score understated the extent of his previous criminal history. It asserted that defendant was a de facto career offender and should be sentenced as a career offender would be under the Guidelines. Id. The government pointed out that the Guidelines allowed for upward departures, and Booker did not significantly change the analysis governing whether an upward departure was appropriate.

Defendant filed two objections to the presentence report. The district court characterized one objection as "a general objection to the entirety of the [presentence] report and the whole project of sentencing a person using a guideline[s] score." Defendant also specifically objected to the imposition of a "two level enhancement for the making of a threat of death in connection with some of the bank robberies."

The district court overruled both of defendant's objections. The district court relied on pre-Booker case law in determining that the phrase "I have a gun" is an implicit threat of death. It then found, by a preponderance of the evidence, that defendant had used an implicit threat of death in connection with the bank robberies, and the two-level enhancement was appropriate. It also rejected defendant's general objection to the use of the Guidelines, holding that to consult the Guidelines, it had to accurately calculate the Guidelines range including enhancements, just as it would have done prior to Booker, but that it would then treat the resulting range as an advisory range to be considered in addition to the factors under 18 U.S.C. § 3553(a).

The district court also rejected the government's motion for an upward departure under the Guidelines. It recognized that the Guidelines give judges flexibility to treat certain defendants as de facto career criminals but asserted that "the technical aspects of the guidelines, as part of the lawyer's art, often times serve[ ] ... important purpose[s] by making valid legal distinctions which should have or ought to have some effect. In this case, the distinctions count for more than naught." The district court noted that the Guidelines do attempt to account for the fact that, in general, when a defendant goes on a spree, that defendant is less dangerous than a defendant that commits three separate crimes. The six bank robberies included more than one in the same day and were closely related in time. The court ruled that defendant's criminal history was accurately reflected by the Guidelines criminal history score, and an upward departure on that ground was inappropriate in this case.

At sentencing, the government argued for a sentence above the calculated Guidelines range. Counsel for defendant argued that a sentence within the advisory Guidelines would be appropriate and asked the court to consider defendant's mental health and substance abuse problems in determining an appropriate sentence. Defendant also requested being assigned to a facility where he could get appropriate psychiatric counseling.

When sentencing the defendant, the court listed the factors that it was required to consult under 18 U.S.C. § 3553(a). The district court noted that defendant had robbed nine banks but that his history suggested "defendant has had profound difficulties adjusting to societal legal expectations caused in no small measure by his mental health problems." It also described the level of threats used in the bank robberies as mild compared to other armed robbery crimes but expressed that it did not believe "that anybody['s statement to] a bank teller ...I have a gun I want money can be considered a mild threat." By way of comparison, the court considered a previous bank robbery where, although the perpetrator had not intended to harm the teller, the robber had used a gun, mistakenly fired it, killing the teller, and subsequently received a life sentence. It noted that defendant's crimes were committed as a spree but that, in the court's estimate, defendant was a dangerous person. The district court also focused on the need to rehabilitate defendant and get him the psychiatric and substance abuse treatment that he needed, but it also indicated that selecting an appropriate amount of time to achieve all of those aims was difficult. The district court sentenced defendant to 168 months, three years of supervised release, a $300 special assessment, and restitution to the financial institutions. Additionally, in light of defendant's history of severe depression and substance abuse, the court expressed its intention to strongly recommend that defendant be incarcerated at Butner Federal Correctional Institution, per defendant's request, or at another medical prison facility that could help him with both of those issues.

On appeal, defendant continues to press his objections to the use of enhancements in determining the advisory Guidelines range. For the first time on appeal, defendant also argues that the Due Process Clause prohibits "retroactive application of the detrimental aspects of the Booker decision," because the judicial construction in Booker was "unexpected" and "indefensible by reference to law which had been expressed prior to the conduct in issue." Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). Defendant also argues that "[t]he Due Process clause [of the Fifth Amendment] requires that facts which increase the advisory Guideline[s] range be found beyond a reasonable doubt." Finally, defendant argues that his sentence is not reasonable because it is greater than necessary to comply with the sentencing factors under 18 U.S.C. § 3553(a). Defendant asserts that the district court held that he was not a de facto career offender under the Guidelines but then sentenced him as if he was one. He argues that this result also makes his sentence unreasonable.

ANALYSIS
A. Retroactive application of Booker in a fashion that negatively impacts defendant does not violate the Due Process Clause of the United States Constitution.

Defendant pled guilty after the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). He was sentenced after the Supreme Court decided Booker. For the first time on appeal, defendant argues that because he pled guilty after Blakely and prior to Booker, the Due Process Clause prohibits "retroactive application of the detrimental aspects of the Booker decision," asserting that the judicial construction in Booker was "unexpected" and "indefensible by reference to the law which had been expressed prior to the conduct in issue." Rogers, 532 U.S. at 457, 121 S.Ct. 1693. This court reviews constitutional challenges de novo, United States v. Copeland, 321 F.3d 582, 601 (6th Cir. 2003), however, because this argument was not raised below, Sixth Circuit precedent requires application of the plain error standard. See id. See also United States v. Hayes, 218 F.3d 615, 619-20, 622 (6th Cir.2000). Since we conclude that no due process violation occurred, and, thus, there was no error, any ambiguity in the appropriate standard of review need not be resolved.

Defendant relies primarily on Rogers to support his arguments. In Rogers, the Supreme Court addressed whether the Ex Post Facto Clause of the United States Constitution as applied to judicial decisions through the Due Process Clause prohibited the retroactive application of the Tennessee Supreme Court's decision to abolish the common law "year and a day rule" in prosecutions for homicide. See Rogers, 532 U.S. at 453, 456-57, 121 S.Ct. 1693 (citing and discussing Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)2). The Rogers Court held that "a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is `unexpected and indefensible by...

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