U.S. v. Kathman

• Decision Date: 20 June 2007
• Docket Number: No. 06-5669.,06-5669.
• Citation: 490 F.3d 520
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Michael R. KATHMAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

490 F.3d 520

UNITED STATES of America, Plaintiff-Appellant, v. Michael R. KATHMAN, Defendant-Appellee.

No. 06-5669.

United States Court of Appeals, Sixth Circuit.

Argued: April 27, 2007.

Decided and Filed: June 20, 2007.

ARGUED:

Terry M. Cushing, Assistant United States Attorney, Louisville, Kentucky, for Appellant. Charles E. English, Jr., English, Lucas, Priest & Owsley, Bowling Green, Kentucky, for Appellee.

ON BRIEF:

Terry M. Cushing, Randy W. Ream, Monica Wheatley, Assistant United States Attorneys, Louisville, Kentucky, for Appellant. Charles E. English, Jr., English, Lucas, Priest & Owsley, Bowling Green, Kentucky, for Appellee.

Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

The United States appeals from the sentence imposed on defendant Michael R. Kathman on two counts of involuntary manslaughter resulting from an automobile accident in a national park that killed his two passengers. See 18 U.S.C. § 1112. Challenging the post-Booker sentence, the government argues that the district court erred in awarding a two-level reduction for acceptance of responsibility and that the downward variance from the advisory guideline range was substantively unreasonable. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). After review of the record and the arguments presented on appeal, we affirm.

I.

On August 13, 2004, at around 11:30 p.m., Kathman, age 22, lost control of his car and hit a tree, tragically killing Jeffrey Beck and Gregory Ackley. The crash occurred in Mammoth Cave National Park, not far from the campsite where they and several friends, all young men in their early 20s, were going to spend the weekend. A group of them had left Cincinnati, Ohio, early on August 13 to choose a campsite, but Kathman, Beck, and Ackley did not leave until after work. Caught in a traffic jam on the way, they started drinking beer they had packed for the trip. At about 11:00 p.m., Kathman stopped and called the friends at the campsite for directions.

According to the state trooper who reconstructed the accident, the car was traveling on Houchins Ferry Road, an asphalt road with several curves and moderate grades, when the front right tire dropped off the shoulder. The driver overcorrected, lost control of the car, and struck a tree in the center of the passenger door. Ackley, who was in the front passenger seat, and Beck, who was in the back, were killed by the impact. Kathman, who sustained broken ribs, a collapsed lung, and a head injury, was transported to a hospital. He underwent surgery and spent five days in the hospital.

The toxicology report indicated that Kathman's blood alcohol content was .071 when he arrived at the hospital. It was estimated that his blood alcohol content at the time of the accident was between .097 and .133, which would have been over the legal limit of .08. KY.REV.STAT. § 189A.010. From the marks on the road, the trooper determined that Kathman was traveling between 43.5 and 46.9 miles per hour (or an average of 45 miles per hour) on a road with a posted speed limit of 35 miles per hour.

Kathman told the EMTs at the scene and his parents in the emergency room that Ackley had been driving. The next day, Kathman could not remember the accident or talking to his parents. Although Kathman would not talk to investigators, his parents related that he had told them that he was not driving. The prosecutor retained an expert to determine who was driving, and a civil suit was filed against Kathman. Autopsies were performed, the results of which showed that neither Ackley nor Beck were driving at the time of the crash. Kathman's insurer settled with the families of the deceased.

Indicted in May 2005, defendant was charged with two counts of involuntary manslaughter within the territorial jurisdiction of the United States, namely, by unlawfully and without due caution and circumspection causing the death of another in the commission of the unlawful act of operating a motor vehicle in a grossly negligent manner. 18 U.S.C. § 1112(a). The statutory maximum for this offense is a six-year term of imprisonment. Kathman maintained that he had amnesia concerning the crash, and that the last thing he remembered before the crash was stopping to call for directions to the campsite. With the assistance of counsel, defendant moved to change his plea to a nolo contendere plea consistent with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).¹

When members of Ackley's family questioned his claim of amnesia, the district court ordered the submission of all the medical records, police and investigative reports, accident reconstruction reports, any statements of the defendant, and any other information that might be relevant to the claim of amnesia or the proposed plea. Having reviewed all the material and after confirming that the government did not want another medical evaluation performed, the district court found that Kathman, while not maintaining his innocence, had amnesia that prevented him from truthfully admitting the facts relevant to the offenses as would be required for a guilty plea. With the government's proffer of the facts supporting conviction, the district court accepted Kathman's Alford plea. The government does not appeal from either the finding of amnesia or the discretionary decision to accept the Alford plea.

The sentencing guidelines for involuntary manslaughter provide for a base offense level of 12 if the offense involved criminally negligent conduct, 18 if it involved reckless conduct, and 22 if the offense involved the reckless operation of a means of transportation. United States Sentencing Guidelines (USSG) § 2A1.4(a). Consistent with the application notes defining "reckless," the Presentence Report (PSR) recommended a base offense level of 22 because the deaths resulted from driving while under the influence of alcohol.² A multiple-count adjustment increased the offense level to 24, while a two-level reduction for acceptance of responsibility resulted in a total offense level of 22. With no prior criminal history, Kathman's recommended sentencing guideline range was 41 to 51 months' imprisonment.

At sentencing, the district court overruled the government's objection to the reduction for acceptance of responsibility (without which the guideline range would have been 51 to 63 months). The government argued for a sentence of 51 months, and defendant requested community confinement. Having received considerable input from those arguing for and against leniency, the district court analyzed the relevant sentencing factors from 18 U.S.C. § 3553(a) and sentenced Kathman to concurrent 20-month terms of imprisonment, to be followed by three years of supervised release.³ The United States appealed from the sentence.

II.

Sentences imposed post-Booker are reviewed for procedural and substantive reasonableness. United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1110, 163 L.Ed.2d 919 (2006). Once the appropriate advisory guideline range is calculated, it must be considered along with the other pertinent § 3553(a) sentencing factors. United States v. McBride, 434 F.3d 470, 476 (6th Cir.2006). The government's only challenge to the guideline calculation is to the determination that Kathman should receive the two-level reduction for acceptance of responsibility under USSG § 3E1.1.

A. Acceptance of Responsibility

As the government concedes, an Alford plea does not categorically disqualify a defendant from receiving a § 3E1.1 reduction for acceptance of responsibility. United States v. Tucker, 925 F.2d 990 (6th Cir.1991). In fact, a defendant who enters a guilty plea is not entitled to the reduction as a matter of right, while a defendant who goes to trial is not automatically ineligible. USSG § 3E1.1, cmt. n. 2-3. Rather, the district court must determine whether the defendant has demonstrated acceptance of responsibility by a preponderance of the evidence. United States v. Donathan, 65 F.3d 537, 541 (6th Cir.1995). We review the district court's determination on the issue for clear error. United States v. Paulette, 457 F.3d 601, 608 (6th Cir.2006).; see also USSG 3E1.1, cmt. n. 5 (sentencing judge's determination regarding acceptance of responsibility is entitled to great deference).

The government relies specifically on evidence that Kathman made statements the night of the crash denying that he was driving and casting blame on Ackley. Unable to remember after that—a fact no longer contested—Kathman refused to talk to investigators and did not contact the victims' families. The investigation showed that Kathman was driving and, in moving for a change of plea, Kathman also accepted that he had been driving over the speed limit and under the influence of alcohol at the time of the accident. Moreover, in accepting the plea, the district court found that Kathman was not maintaining his innocence, but was simply unable to truthfully admit a factual basis for a guilty plea due to his amnesia.

Kathman stated at sentencing that: "Though I do not know what happened, it has haunted me every day. Losing two fine gentlemen such as your sons, and I do take full responsibility for that. And I hope in the future you can somehow forgive me for what I have done to you and everyone associated." The district court reiterated that Kathman was not claiming innocence, and noted that the plea carried the risk that the government would oppose the reduction for acceptance of responsibility. Overruling the government's objection, the district court concluded that Kathman had owned up to his conduct as best he could. Whether or not we would have reached the same conclusion, we certainly cannot say that it was clear error for the district court to have found that Kathman demonstrated acceptance of responsibility under the circumstances. Finding that the guideline range...