U.S. v. Cousins

• Decision Date: 30 November 2006
• Docket Number: No. 05-3228.,05-3228.
• Citation: 469 F.3d 572
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifton L. COUSINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

469 F.3d 572

UNITED STATES of America, Plaintiff-Appellee, v. Clifton L. COUSINS, Defendant-Appellant.

No. 05-3228.

United States Court of Appeals, Sixth Circuit.

Argued: April 19, 2006.

Decided and Filed: November 30, 2006.

ARGUED:

Dennis G. Terez, Assistant Public Defender, Cleveland, Ohio, for Appellant.

Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for Appellee.

ON BRIEF:

Dennis G. Terez, Assistant Public Defender, Cleveland Ohio, for Appellant.

Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for Appellee.

Before: MOORE and GIBBONS, Circuit Judges; SHADUR, District Judge.^*

MOORE, J., delivered the opinion of the court, in which SHADUR, D.J., joined. GIBBONS, J. (pp. 582-83), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MOORE, Circuit Judge.

Defendant-Appellant Clifton Cousins appeals his sentence for the crimes of threatening to harm the President of the United States and his family, arguing that the district judge violated the constitutional standard set forth in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by incorrectly calculating the applicable Sentencing Guidelines range and by imposing an unreasonable sentence; and contending that the district court committed plain error by failing to give advance notice, as required by Federal Rule of Criminal Procedure 32(h), of its intention to impose an upward variance. For the reasons set forth below, we VACATE Cousins's sentence and REMAND this case to the district court for resentencing consistent with this opinion.

I. BACKGROUND

On November 17, 2004, Cousins pleaded guilty to three counts of threatening the President of the United States, in violation of 18 U.S.C. § 871(a), and the President's family, in violation of 18 U.S.C. § 879(a)(2). The base offense level for each of these crimes is 12. U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 2A6.1(a)(1). In the pre-sentence investigation report ("PSR"), the probation officer suggested a three-level enhancement, under § 3A1.2 of the Guidelines, because of the official status of the victims. Id. § 3A1.2(a)(1)(C); Joint Appendix ("J.A.") at 96 (PSR at 6). The probation officer also suggested a two-level enhancement based upon the multiple counts to which Cousins pleaded guilty.¹ J.A. at 96 (PSR at 6); U.S.S.G. § 3D1.4. These calculations resulted in a total suggested adjusted offense level of 17. J.A. at 96 (PSR at 6). Finally, the PSR recommended that that level be reduced by three for Cousins's acceptance of responsibility, yielding a final total offense level of 14. J.A. at 97 (PSR at 7).

Cousins objected to the calculations in the PSR, arguing that the recommended two-level enhancement for multiple counts was impermissible and, therefore, that the correct adjusted offense level was 12, the level upon which the parties had agreed in plea negotiations. J.A. at 22 (Cousins Br. in Resp. to District Ct. Order of January 13, 2005 at 5); J.A. at 115 (Cousins Objections to PSR at 1). Cousins and the probation officer agreed that Cousins's criminal history score placed him in criminal history category VI. J.A. at 103 (PSR at 13); Cousins Br. at 7.

At sentencing, the district judge calculated an adjusted total offense level of 14² and a criminal history category of VI, which yielded a Guidelines range of 37 to 46 months' imprisonment. J.A. at 90 (District Ct.'s Statement of Reasons). The judge then imposed a sentence of 48 months, an upward variance of two months from the top of the Guidelines range. Id.

Cousins now appeals his sentence on the grounds that the district judge incorrectly calculated the Guidelines range and that the sentence is unreasonable in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He also argues that the district judge failed to give advance notice of his intention to impose an upward variance from the applicable Guidelines range, pursuant to Federal Rule of Criminal Procedure 32(h).

II. ANALYSIS

A. Double Counting

Cousins challenges the district court's calculation of the applicable Guidelines range, on the ground that the three-level enhancement for the official status of the victims constitutes double counting because the victims' identities are elements of the charged offenses. Cousins Br. at 17-20. Cousins properly preserved this objection for appeal by articulating it during the sentencing hearing. See United States v. Perkins, 89 F.3d 303, 306-07 (6th Cir. 1996). We review the district court's application of the Guidelines de novo. United States v. Jarman, 144 F.3d 912, 914 (6th Cir. 1998).

Cousins argues that, because he could not be found guilty of violating either § 871(a) or § 879(a)(2) were his victims ordinary citizens rather than a public official and his relatives, the Guidelines range applicable to those provisions already takes into account the victims' status. Cousins Br. at 17-20. Cousins is mistaken. The Guidelines provision applicable to §§ 871(a) and 879(a)(2), U.S.S.G. § 2A6.1, does not mention victim status. Rather, it applies to all threatening or harassing communications, irrespective of the identity of the victim. Thus, absent the enhancement, the sentencing provision makes no distinction between threats toward the First Family and threats toward ordinary citizens. Cf. United States v. Smith, 196 F.3d 676, 683-84 (6th Cir. 1999) (adopting the Fifth Circuit's holding in United States v. Kings, 981 F.2d 790, 793 (5th Cir. 1993), that a district court does not engage in double counting by applying an official-victim enhancement when the Guideline establishing the base offense level — as opposed to the statute establishing criminal liability — does not take the victim's status into account); compare United States v. Farrow, 198 F.3d 179, 191, 193 (6th Cir. 1999) (reversing the district court's "cumulative use of the same conduct to both establish a base offense level and apply an enhancement" and noting this Circuit's "well-established rule that impermissible `double counting' occurs when precisely the same aspect of a defendant's conduct factors into his sentence in two separate ways") (emphasis added). Accordingly, we hold that the district court correctly applied the three-level § 3A1.2 enhancement.

B. Reasonableness of the Variance

Cousins also contends that his sentence is unreasonable because the district judge failed adequately to explain why the upward variance of two months was "sufficient, but not greater than necessary," to comply with the purposes of 18 U.S.C. § 3553(a). In reviewing sentencing decisions, we apply "a practical standard of review . . . familiar to appellate courts: review for `unreasonable[ness].'" United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Guided by Booker's principle of meaningful appellate review for reasonableness and its respect for the sentencing goals articulated in § 3553(a), we "may conclude that a sentence is unreasonable when the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration."

United States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006) (internal citation and quotation marks omitted) (quoting United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)).

Section 3553(a) requires a sentencing court to consider the following factors: (1) "the nature and circumstances of the offense and the history and characteristics of the defendant"; (2) "the need for the sentence . . . to reflect the seriousness of the offense, to promote respect for the law, . . . to provide just punishment," to deter similar criminal conduct, "to protect the public from further crimes of the defendant," and to provide the defendant with training, medical care, or other treatment; (3) "the kinds of sentences available"; (4) the applicable advisory Guidelines range; (5) relevant policy statements by the Sentencing Commission; (6) "the need to avoid unwarranted sentenc[ing] disparities"; and (7) "the need to provide restitution to . . . victims." 18 U.S.C. § 3553(a).

A sentence within the Guidelines range triggers a rebuttable presumption of reasonableness, see Richardson, 437 F.3d at 553-54, but a court imposing such a sentence must nonetheless articulate its reasoning with sufficient specificity to permit meaningful appellate review. Id. at 554.

Perhaps most critically, the presumption [of reasonableness] does not excuse a sentencing court's failure to adhere to the procedural requirements of a reasonable sentence and indeed applies only to sentences that generally have satisfied these numerous requirements. In the Sixth Circuit, as in many other circuits, we distinguish between the substantive and procedural components of reasonableness review, and nothing about the presumption permits a sentencing court to ignore the procedural requirements of a reasonable sentence.

United States v. Buchanan, 449 F.3d 731, 738 (6th Cir. 2006) (Sutton, J., concurring) (internal quotation marks omitted). In Richardson, we emphasized "the obligation of the district court in each case to communicate clearly its rationale for imposing the specific sentence." Richardson, 437 F.3d at 554. In particular:

Where a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it. This assures not only that the defendant can understand the basis for the particular sentence but also that the reviewing court can intelligently determine whether the specific sentence is indeed reasonable.

Id. At the sentencing hearing in this case, Cousins requested that the sentences for all three counts run concurrently with each other and with Cousins's...