516 F.3d 382 (6th Cir. 2008), 05-5295, United States v. Vonner

Docket Nº:05-5295.
Citation:516 F.3d 382
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alvin VONNER, Defendant-Appellant.
Case Date:February 07, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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516 F.3d 382 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Alvin VONNER, Defendant-Appellant.

No. 05-5295.

United States Court of Appeals, Sixth Circuit.

Feb. 7, 2008

Argued: Sept. 12, 2007.

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 03-00154-Thomas A. Varlan, District Judge.

Page 383

ARGUED:

Stephen Ross Johnson, Ritchie, Dillard & Davies, Knoxville, Tennessee, for Appellant.

Charles E. Atchley, Jr., Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Stephen Ross Johnson, Ritchie, Dillard & Davies, Knoxville, Tennessee, for Appellant.

Charles E. Atchley, Jr., Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Ann C. Short-Bowers, The Bosch Law Firm, P.C., Knoxville, Tennessee, David M. Eldridge, Eldridge & Blakney, Knoxville, Tennessee, Henry A. Martin, Federal Public Defender's Office, Nashville, Tennessee, for Amici Curiae.

Before: BOGGS, Chief Judge; MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

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OPINION

SUTTON, Circuit Judge.

Alvin Vonner argues that his 117-month sentence violates the Sixth Amendment and is unreasonable. We disagree because (1) district courts may, consistent with the Sixth Amendment, find sentencing facts in applying the now-advisory sentencing guidelines, (2) Vonner forfeited his argument that the district court failed adequately to explain its rejection of his arguments for leniency and cannot show plain error and (3) his within-guidelines sentence is reasonable.

I.

Less than three months after completing a prison sentence for second-degree murder, Alvin Vonner sold crack cocaine to a government informant on two separate occasions. A grand jury indicted Vonner for distributing at least five grams of cocaine base, see 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), after which, consistent with the terms of a plea agreement between Vonner and the government, he pleaded guilty.

The presentence report calculated Vonner's criminal history category (III) and his offense level (29), which intersected at an advisory guidelines range of 108 to 135 months. Vonner did not object to the report.

At the sentencing hearing, which took place three weeks after the Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Vonner sought a downward variance based on (1) the mental and emotional trauma he suffered from a "neglect[ed]" and "abus[ive]" childhood, (2) "the nature and the length of [his] Pre-Sentence confinement," which lasted fourteen months, (3) his "assistance to the Government" and (4) the circumstances surrounding his cocaine sales. Vonner also argued that the court, by increasing the guidelines range based on a drug quantity never proved beyond a reasonable doubt to a jury or admitted by him, violated the Sixth Amendment.

After listening to these arguments and after hearing the government's response, the court told Vonner that it "appreciate[d] the apology [he] offered this morning," and it "encourage[d]" him to continue to cooperate with the government and to dedicate his prison time to learning "certain life skills and lifestyles that will be of benefit to [him] when [his] period of incarceration is over." "[C]onsider[ing] the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. §] 3553(a)," the court sentenced Vonner to 117 months. The court also recommended that Vonner receive substance-abuse treatment in prison, and it waived Vonner's fine due to his inability to pay it. After announcing the sentence, the court asked Vonner's counsel whether "the defendant [has] any objection to the sentence just pronounced not previously raised." Vonner's counsel responded, "No, Your Honor."

II.

Vonner first argues that his sentence violates the Sixth Amendment because it was based on facts he never admitted and no jury ever found beyond a reasonable doubt. He is wrong for two

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reasons: By failing to object to the pre-sentence report, Vonner accepted all of the factual allegations contained in it, United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir. 2005); and by finding sentencing facts in calculating Vonner's guidelines range, the district court did not violate the Sixth Amendment so long as it treated the guidelines as advisory, which it did in sentencing him, see Booker, 543 U.S. at 245-46, 125 S.Ct. 738.

III.

Vonner next argues that the district court failed to explain in sufficient detail why it rejected some of his arguments for a downward variance. At a sentencing hearing, as at every other phase of a criminal proceeding, each party has a duty to object to rulings by a court in order to preserve them for appeal. "A party," the Criminal Rules say, "may preserve a claim of error by informing the court--when the court ruling or order is made or sought--of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection." Fed. R. Crim. P. 51(b). "If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party." Id. A party who neglects to make an objection, even after being given "an opportunity" to do so, forfeits the argument and may obtain relief on appeal only if the error is "plain" and "affects substantial rights." Fed. R. Crim. P. 52(b).

In United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we wrestled with the difficulty of "parsing a [sentencing] transcript to determine whether ... a party had a meaningful opportunity to object" and of determining whether plain-error review should apply. Id. at 873 n.6. In an effort to bring some clarity to the matter and to ensure that plain-error review applied only when the parties fairly were given a chance to object to the sentencing procedure, Bostic suggested that district courts, after announcing a proposed sentence, "ask the parties whether they have any objections to the sentence . . . that have not previously been raised." Id. at 872. If a sentencing judge asks this question and if the relevant party does not object, then plain-error review applies on appeal to those arguments not preserved in the district court. Id. at 872-73. In adopting this approach, Bostic reasoned that it would give the prosecution and defense alike an opportunity to articulate "any objection and the grounds therefor"; it would "aid the district court in correcting any error" and allow it to do so "on the spot"; and it would facilitate the appellate process by highlighting "precisely which objections have been preserved." Id. at 873 (internal quotation marks omitted).

We have applied Bostic to sentencing appeals before Booker, and we have done so since Booker in numerous published and unpublished cases. See United States v. Brogdon, 503 F.3d 555, 562-63 (6th Cir. 2007); United States v. Brock, 501 F.3d 762, 773 (6th Cir. 2007); United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007); United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006); see also United States v. Key, No. 05-6277, --- Fed.Appx. ----, ---- , 2007 WL 4293456, at *5 (6th Cir. Dec.6, 2007); United States v. Darden, No. 06-1767, 253 Fed.Appx. 568, ---- , 2007 WL 3329454, at *2 (6th Cir. Nov.7, 2007); United States v. Muse, 250 Fed.Appx. 700, 702 (6th Cir.2007); United States v. Grant, 247 Fed.Appx. 749, 752-53 (6th Cir.2007); United States v. Scadin, 246 Fed.Appx. 319, 320-21 (6th Cir.2007); United States v. Bowden, 240 Fed.Appx. 56, 58-59 (6th Cir.2007); United States v. Wilson, 232 Fed.Appx. 540, 545 (6th Cir.2007);

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United States v. Duncan, 236 Fed.Appx. 168, 170 (6th Cir.2007); United States v. Ruiz-Chavez, 224 Fed.Appx. 467, 469-70 (6th Cir.2007); United States v. Saffore, 216 Fed.Appx. 531, 532 (6th Cir.2007); United States v. Harden, 195 Fed.Appx. 382, 385 (6th Cir.2006); United States v. Carroll, 189 Fed.Appx. 450, 454 (6th Cir.2006); United States v. Willis, 176 Fed.Appx. 653, 656-57 (6th Cir.2006); United States v. Parks, 155 Fed.Appx. 841, 842 (6th Cir.2005). Vonner did not argue either in his original appellate briefs or in his supplemental en banc briefs that Bostic should be overruled or that it otherwise should not apply to our review of post-Booker sentences.

Bostic governs Vonner's claim that the district court failed to explain fully why it rejected some of his requests for leniency. After announcing the proposed sentence, the court asked each party whether it "ha[d] any objection to the sentence just pronounced not previously raised." "No, Your Honor," Vonner's counsel responded. While this answer did not undermine Vonner's right to appeal issues he had "previously raised," it did undermine his right to challenge the adequacy of the court's explanation for the sentence--an issue that became apparent as soon as the court finished announcing its proposed sentence and that counsel nonetheless declined the court's invitation to address. Bostic, 371 F.3d at 872-73.

Under Bostic, we review this challenge for plain error, which requires Vonner to show (1) error (2) that "was obvious or clear," (3) that "affected defendant's substantial rights" and (4) that "affected the fairness, integrity, or public reputation of the judicial proceedings." United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (internal quotation marks omitted). "[O]nly in exceptional circumstances" will we find such error--only, we have said, "where the error is so plain that the trial judge . . . [was] derelict in countenancing it." Id. (internal quotation marks omitted).

At the sentencing hearing, Vonner asked for a downward variance on four grounds: (1) his "neglect[ed]" and "abus[ive]" childhood;...

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