503 F.3d 555 (6th Cir. 2007), 06-5548, United States v. Brogdon

Docket Nº06-5548.
Citation503 F.3d 555
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Jonathan Gregory BROGDON, Defendant-Appellant.
Case DateSeptember 27, 2007
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

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503 F.3d 555 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jonathan Gregory BROGDON, Defendant-Appellant.

No. 06-5548.

United States Court of Appeals, Sixth Circuit.

September 27, 2007

Argued: July 27, 2007.

Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 05-10045-James D. Todd, Chief District Judge.

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[Copyrighted Material Omitted]

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ARGUED:

M. Dianne Smothers, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant.

James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

ON BRIEF:

M. Dianne Smothers, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant.

James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

Before: SILER and COOK, Circuit Judges; REEVES, District Judge.[*]

OPINION

DANNY C. REEVES, District Judge.

Defendant-Appellant Jonathan Gregory Brogdon appeals the sentence and sex-offense-related conditions of supervised release imposed by the district court. Because the sentence is procedurally and substantively reasonable and because the conditions of supervised release are reasonably related to the rehabilitation of the defendant and the protection of the public, we affirm.

BACKGROUND

On November 28, 2005, Brogdon pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Following his guilty plea, the United States Probation Office ("USPO") prepared a presentence report dated January 31, 2006, indicating a total offense level of 13, a criminal history category of I, and a recommended sentencing range of 12 to 18 months.1 Neither party filed objections to this report.

However, on February 21, 2006, the USPO prepared a second report, indicating a total offense level of 23 and a criminal history category of VI, resulting in a recommended guideline range of 92 to 115 months.2 Brogdon objected to these calculations, and the district court addressed his objections at the sentencing hearing on April 13, 2006. Following a lengthy discussion and testimony from Brogdon and the probation officer, the court concluded that the USPO had correctly calculated Brogdon's base offense level and criminal history in the second report.3 Accordingly, the court noted that it would consider the applicable guideline range in imposing a sentence. In particular, the court stated that,

I think the misdemeanors are all correctly included, and I think that perhaps we get a piling-on effect of all these misdemeanors in this case, but it's my

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judgment that the probation officer has correctly calculated the criminal history and base offense level. So the probation officer's suggested guideline range is correctly calculated of 92 to 115 months.... The court will consider that as a substantial factor, but I am not, however, bound by that range. I can consider other factors.

Mr. Brogdon, your case is unusual to me because what makes it unusual is that you, I think, have more misdemeanor convictions than perhaps anybody I've ever seen of such a young age. You have been a one-man misdemeanor wave in Gibson County, and you've been giving officers reason to arrest you for a long time. Now it's true that some of these are not major deals, speeding, an occasional bad check violation; but I'm troubled by the numerous indecent exposure convictions, the aggravated assault conviction, the burglary conviction and the controlled substances offense. And the criminal history that you have, the background that you have, convinces me that you obviously have a difficult time in obeying the law.

Given that long criminal history, I'm of the opinion that the guidelines in your case are an appropriate range of sentences. That extremely high criminal history score would justify a sentence at the upper end of that guideline range, but I'm also going to take into account your limitations, your mental and academic limitations, and sentence you toward the low end of this guideline range.

(J. A. 62-64) In conclusion, the court noted that it had considered all the factors provided in 18 U.S.C. § 3553 and sentenced Brogdon to 92 months imprisonment and three years of supervised release.

In addition to the standard conditions of supervised release, the court imposed several sex-offense-related conditions, including: (1) the collection of DNA; (2) participation in a specialized sex offender treatment program which may include the use of a plethysmograph and a polygraph; (3) that the Defendant not possess pornography; (4) that he not engage in any direct or indirect contact with any child under the age of eighteen; (5) that he not loiter near schoolyards, playgrounds, swimming pools, arcades, theaters, or other places frequented by children; (6) that he not use any sexually-oriented telephone numbers or services; (7) that he not date any woman who has children under the age of eighteen in her custody; (8) that his place of residence not be located close to any childhood parks, schools, playgrounds, public pools or any other location frequented by children; and (9) that the probation officer may impose a curfew if it is deemed necessary. The district court denied Brogdon's objection to these conditions.

DISCUSSION

I. Reasonableness of Brogdon's sentence under Booker and Rita

Brogdon claims that the sentence imposed by the district court was both procedurally and substantively unreasonable. In particular, he asserts that the district court erred in calculating his criminal history points under U.S.S.G. § 4A1.2(e)(2), gave improper weight to the recommended guideline range, failed to adequately consider the pertinent § 3553(a) factors, and imposed a sentence that was greater than necessary.

After Booker, district courts have enhanced discretion in sentencing criminal defendants, and a sentence will be upheld on appeal as long as it is procedurally and substantively reasonable. United States v. Crowell, 493 F.3d 744, 751 (6th Cir. 2007); see also Rita v. United States, --- U.S. ----, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)

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(noting that the "appellate 'reasonableness' review merely asks whether the trial court abused its discretion"). A sentence that falls within a properly calculated guideline range is afforded a rebuttable presumption of reasonableness, and it is incumbent upon the defendant to demonstrate that his sentence is unreasonable. Crowell, 493 F.3d at 751; Rita, 127 S.Ct. at 2465.

"[A] district court's mandate is to impose 'a sentence sufficient, but not greater than necessary, to comply with the purposes' of section 3553(a)(2)." United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir. 2006). Because reasonableness encompasses both substantive and procedural components, an appellate court must consider the length of the sentence imposed as well as "the factors evaluated and the procedures employed by the district court in reaching its sentencing determination." United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007) (citing United States v. Webb, 403 F.3d 373, 383-85 (6th Cir. 2005)).

Procedurally, a district court must "explain[] its reasoning to a sufficient degree to allow for meaningful appellate review." United States v. Trejo-Martinez, 481 F.3d 409, 412-13 (6th Cir. 2007). The sentencing court must consider the applicable guideline range as well as the other relevant factors outlined in 18 U.S.C. § 3553(a). However, the court is not required to explicitly consider each of the factors or engage in a "ritualistic incantation." Trejo-Martinez, 481F.3d at 413. Rather, a "sentence is procedurally reasonable if the record demonstrates that the sentencing court addressed the relevant factors in reaching its conclusion." Id.

Substantively, a sentence that falls within "a correctly calculated guideline range" is "entitled to a rebuttable presumption of reasonableness." Id. (citing United States v. Cruz, 461 F.3d 752, 754 (6th Cir. 2006)); see also Rita, 127 S.Ct. at 2456. A sentence may be substantively unreasonable if the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any pertinent factor. United States v. Jones, 489 F.3d 243, 251 (6th Cir. 2007) (citing United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006)).

Here, Brogdon has failed to establish that his sentence was either procedurally or substantively unreasonable. First, it is clear that the district court properly determined the applicable guideline range based on Brogdon's criminal history and base offense level. Although Brogdon contends that his convictions prior to 1989 should not be considered in his criminal history, this argument is contrary to the Sentencing Guidelines and this Court's unpublished decision in United States v. Susewitt, 125 Fed.Appx. 681, 684 (6th Cir. 2005).

This Court reviews de novo a district court's interpretation of the Sentencing Guidelines. United States v. Williams, 411 F.3d 675, 677 (6th Cir. 2005). Section 4A1.2(e)(2) of the Sentencing Guidelines instructs district courts to count "[a]ny other prior sentence that was imposed within ten years of the defendant's commencement of the instant offense" in determining a defendant's criminal history. U.S.S.G. § 4A1.2(e)(2). The application notes to this section further explain that "[a]s used in § 4A1.2(d)(2) and (e), the term 'commencement of the instant offense' includes any relevant conduct." U.S.S.G. § 4A1.2, cmt. n. 8. Relevant conduct is defined, in pertinent part, as "all acts and omissions committed ... by the defendant. . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the

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course of attempting to avoid detection or responsibility for that offense." U.S.S.G. §...

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