U.S. v. Simmons

• Decision Date: 29 August 2007
• Docket Number: No. 06-6173.,06-6173.
• Citation: 501 F.3d 620
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kossie Lamon SIMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

501 F.3d 620

UNITED STATES of America, Plaintiff-Appellee, v. Kossie Lamon SIMMONS, Defendant-Appellant.

No. 06-6173.

United States Court of Appeals, Sixth Circuit.

Argued: August 8, 2007.

Decided and Filed: August 29, 2007.

Rehearing Denied September 28, 2007.

ARGUED:

Craig V. Morton II, Morton & Germany, Memphis, Tennessee, for Appellant. Cam Towers Jones, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

ON BRIEF:

Craig V. Morton II, Morton & Germany, Memphis, Tennessee, for Appellant. Cam Towers Jones, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: KENNEDY and COOK, Circuit Judges; ALDRICH, District Judge.^*

OPINION

KENNEDY, Circuit Judge.

Kossie Lamon Simmons ("defendant") appeals his sentence imposed after he pleaded guilty to health care fraud in violation of 18 U.S.C. § 1347. After granting an eight-level departure requested by the government, calculating a guideline range of twenty-seven to thirty-three months, and considering the 18 U.S.C. § 3553(a) factors, the district court imposed a sentence of twenty-three months in prison as well as restitution. Mr. Simmons claims that his sentence was unreasonable because the district court did not consider the disparity between his sentence and that of his co-defendant's, Mr. Anthony Ross's, as he asserts the district court is required to based on 18 U.S.C. § 3553(a)(6). Because we conclude that § 3553(a)(6) refers to national uniformity as opposed to uniformity of co-defendants' sentences, we affirm the district court.

BACKGROUND

On August 10, 2006 defendant was sentenced for health care fraud under 18 U.S.C. § 1347. The base offense level was six under § 2B1.1(a)(2) of the Sentencing Guidelines. The level was increased to sixteen under § 2B3.1(b)(1) because the loss was greater than one million dollars but less than two and a half million dollars. The level was again increased to twenty-six under § 3B1.1(a) because Mr. Simmons was considered a leader of the criminal activity. This level was reduced by three for Mr. Simmons's acceptance of responsibility. The government had filed a § 5K1.1 motion on Mr. Simmons's behalf, and it asked for a five-level reduction because Mr. Simmons had significantly assisted the government. The district judge granted the government's motion and considered the § 3553(a) sentencing factors, and he determined that the offense level should be reduced from twenty-three to eighteen, primarily because of Mr. Simmons's significant assistance to the government. Mr. Simmons's criminal history category was I, so his guidelines range was twenty-seven to thirty-three months. The district judge sentenced Mr. Simmons to twenty-three months in prison, as well as $1,858,467 in restitution, a $100 special assessment, and three years of supervised release. On appeal defendant asserts that the district judge failed to consider 18 U.S.C. § 3553(a)(6), which directs the sentencing judge to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Mr. Simmons argues this factor was not considered because he received a sentence nearly twice that of his co-defendant, Mr. Anthony Ross.

Mr. Ross had been sentenced for the same health care fraud on December 7, 2005, more than eight months before Mr. Simmons was sentenced. The calculation of the Guidelines offense level for Mr. Ross was the same as Mr. Simmons's; Mr. Ross had a base level of six, which was increased to sixteen for the amount of the loss and then increased again to twenty-six because Mr. Ross also was a leader of the criminal activity. He also received a three-level reduction for his acceptance of responsibility. The district court granted the government's § 5K1.1 motion, and gave a five-level reduction because Mr. Ross too had significantly helped the government through his cooperation. After considering the § 3553(a) sentencing factors, the district court determined that the offense level of twenty-three should be reduced to twelve, or almost 50%, primarily because of Mr. Ross's very significant assistance to the government; Mr. Ross was the first to come forward, he gave the government information it would not have been able to discover absent his cooperation, and he had also implicated Mr. Simmons, who only decided to cooperate after being so implicated. Because Mr. Ross's criminal history category was II, the guidelines range for his sentence was twelve to eighteen months. The court then sentenced Mr. Ross to twelve months and one day in prison, as well as $1,704,865 in restitution, a $100 special assessment, and two years of supervised release.

ANALYSIS

I. Standard of Review

Historically the failure to object at sentencing meant that the defendant waived the issue for appeal, United States v. Cullens, 67 F.3d 123, 124 (6th Cir.1995) (per curiam), and only plain error review under Rule 52(b) of the Federal Rules of Criminal Procedure would be available, United States v. Swanberg, 370 F.3d 622, 627 (6th Cir.2004) (citing United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The government asks that we apply the plain error review standard here because the defendant did not raise his grounds for appeal at the sentencing hearing.

United States v. Bostic, however, preserves the issue for appeal despite a party's failure to object. In Bostic, this Circuit promulgated a new procedural directive for district judges to follow when imposing sentences: after the judge has pronounced the sentence, the judge must "ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised." 371 F.3d 865, 872 (6th Cir. 2004). If the judge fails to "clearly ask[ ] for objections" at this time, then the objections will not be considered forfeited on appeal. Id.; accord United States v. Clark, 469 F.3d 568, 570 (6th Cir.2006). It is clear from the record that the district judge did not follow this procedural directive. J.A. 105-07.

To determine whether Bostic preserves the issue for appeal requires clarification of what the defendant is actually asserting in this case. He claims that the district court failed to consider the disparity between his sentence and that of a co-defendant's, and he points to § 3553(a)(6) as authority for the proposition that a district court is required to engage in such a consideration. Considering uniformity between co-defendants' sentences, however, is not required by the Sentencing Guidelines or the § 3553(a) factors.

Subsection 3553(a)(6) is concerned with national disparities among the many defendants with similar criminal backgrounds convicted of similar criminal conduct. See United States v. Poynter, 495 F.3d 349, 351-56 (6th Cir.2007); United States v. LaSalle, 948 F.2d 215, 218 (6th Cir.1991); United States v. Parker, 912 F.2d 156, 158 (6th Cir.1990). It is not concerned with disparities between one individual's sentence and another individual's sentence, despite the fact that the two are co-defendants. LaSalle, 948 F.2d at 218; United States v. Gessa, 944 F.2d 265, 270 (6th Cir.1991); Parker, 912 F.2d at 158. Instead, § 3553(a)(6) is there to ensure nationally uniform sentences among like offenders so as to leave room to depart downward for those defendants who are truly deserving of leniency. Poynter, 495 F.3d at 351-56; United States v. Borho, 485 F.3d 904, 910 (6th Cir.2007); United States v. Husein, 478 F.3d 318, 331, 333-34 (6th Cir.2007). Section 3553(a)(6)'s national concern has been noted by a great majority of the circuits. United States v. Dowdy, 216 Fed.Appx. 178, 180-81 (3d Cir. 2007) (citing United States v. Seligsohn, 981 F.2d 1418, 1428 (3d Cir.1992)); United States v. Saez, 444 F.3d 15, 18 (1st Cir. 2006); United States v. Newsom, 428 F.3d 685, 689 (7th Cir.2005); United States v. McMutuary, 217 F.3d 477, 489-90 (7th Cir.2000); United States v. McKnight, 186 F.3d 867, 869 (8th Cir.1999); United States v. Withers, 100 F.3d 1142, 1149 (4th Cir. 1996); United States v. Arlen, 947 F.2d 139, 147 (5th Cir.1991); United States v. Garza, 1 F.3d 1098, 1100 (10th Cir.1993); United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir.1991).

A district judge, however, may exercise his or her discretion and determine a defendant's sentence in light of a co-defendant's sentence. United States v. Nelson, 918 F.2d 1268, 1272-73 (6th Cir. 1990). That action, however, would be a discretionary one because the district court is not required to consider that type of disparity under § 3553(a)(6). See LaSalle, 948 F.2d at 218; accord United States v. Parker, 462 F.3d 273, 277 (3d Cir.2006) ("[A]lthough § 3553(a) does not require district courts to consider sentencing disparities among co-defendants, it does not prohibit them from doing so.").

In light of this analysis, we believe that Mr. Simmons is in effect raising two distinct claims: (1) the district court did not consider a discretionary factor, namely the disparity between the two sentences; and (2) the district court did not consider national uniformity as required by § 3553(a)(6). The first issue is not preserved by Bostic. There is no appealable issue saved by Bostic when a defendant wishes to appeal a discretionary factor and does not request the judge to exercise such discretion during the sentencing hearing, as Mr. Simmons did not so request. Bostic only preserves objections, not possible requests for discretion. The defendant must be claiming that the district court erred, and there is no claim that the district court erred when it did not consider an issue it was not required to consider unless raised by the defendant. Mr. Simmons is not claiming that the district court erred because he never asked the district court to exercise its discretion and consider co-defendant sentence disparity. Indeed, even if Mr. Simmons had requested that the district court consider this discretionary factor,...