U.S. v. McComb

• Decision Date: 18 December 2007
• Docket Number: No. 07-5003.,07-5003.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Dewayne McCOMB, Jr., a/k/a "Buddy", Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

519 F.3d 1049

UNITED STATES of America, Plaintiff-Appellee, v. Gary Dewayne McCOMB, Jr., a/k/a "Buddy", Defendant-Appellant.

No. 07-5003.

United States Court of Appeals, Tenth Circuit.

December 18, 2007.

Stephen J. Knorr, Tulsa, OK, for Defendant-Appellant.

Neal B. Kirkpatrick, Assistant United States Attorney (David E. O'Meilia, United States Attorney, and Kevin Danielson, Assistant United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee.

Before HENRY, HOLLOWAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Before being sentenced on drug charges, Gary Dewayne McComb, Jr. suffered a stroke that left him with severe mental and physical impairments. At sentencing, Mr. McComb argued that his condition — including the medical attention he required and the unlikelihood he would prove a danger to others or repeat his criminal conduct — made him a candidate for a downward departure or a variance. The district court disagreed and sentenced Mr. McComb to 135 months in prison, at the bottom of the range suggested by the Sentencing Guidelines. Mr. McComb now appeals, challenging both the procedural and substantive reasonableness of his sentence. While the district court's choice of sentence was perhaps not the only one permissible in this case, we cannot say that the explanation it offered or the result it reached represent an abuse of its discretion. Accordingly, we affirm.

I

Together with six co-defendants, Mr. McComb participated in an extensive, multi-year conspiracy to distribute methamphetamine in Oklahoma. After being indicted in 2006 on eight counts of possession with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), Mr. McComb eventually agreed to plead guilty to a single count. At sentencing, Mr. McComb's offense level was calculated to be 33; together with his category I criminal history, this led to a recommended Guidelines sentence of 135 to 168 months' imprisonment. Mr. McComb did not challenge the calculation of his Guidelines' range as improper, but did file two motions seeking a lower sentence — one requesting a downward departure based on Sections 5K2.0, 5H1.3, and 5H 1.4 of the Guidelines themselves, and another seeking a variance from the Guidelines on the basis of the factors found in 18 U.S.C. § 3553(a).¹ While formally distinct motions, they rested on the same factual predicate. Mr. McComb argued that his failing physical and mental health, brought on by a severe stroke that he suffered after the criminal conduct in question but before his arrest, made a sentence of 135 to 168 months unreasonable, whether viewed through the prism of the Guidelines alone or in light of all the Section 3553(a) factors.

In addition to receiving and considering Mr. McComb's written motions, the court conducted an evidentiary hearing, at which Mr. McComb called four family members to testify on his behalf. Each witness discussed the stroke's effects on Mr. McComb, testifying that he was unable to think coherently; he had memory problems; his speech was slurred; the motor skills of the right side of his body were severely impaired; he had trouble performing simple tasks, such as shaving, dressing, or feeding himself; and, for purposes of Social Security, he had been deemed completely disabled. The witnesses also related that, by the time of sentencing, Mr. McComb had been drug-free for some time. Mr. McComb argued that the sum of these circumstances — suggesting his vulnerability in a prison setting, his near-constant need for care, and the fact that he presented little risk of recidivism — augured in favor of a below-Guidelines' sentence.

For its part, the government called as a witness an Alcohol, Tobacco, Firearms, and Explosives Agent and polygraph examiner, Michael Bryant, who had spent four or five hours interviewing and observing Mr. McComb. Agent Bryant testified that, while Mr. McComb was initially unfocused, inattentive, and not fully cognizant, he became more attentive and focused throughout the meeting, his speech cleared, and he was knowledgeable about and fully able to discuss his medical condition. At one point, Mr. McComb became agitated and left the room. Agent Bryant noted that, while Mr. McComb had appeared unsteady when he arrived and unable to use his right hand, he now walked quickly and steadily and opened the door with his right hand. Other officers also apparently saw Mr. McComb use his right hand to make a cell phone call.

After hearing testimony and considering the parties' written submissions, the district court rejected Mr. McComb's requests for a departure or variance and imposed a sentence of 135 months, at the low end of the Guidelines' suggested range. In doing so, the court related several factors that influenced its thinking.

First, the court stressed the seriousness of Mr. McComb's offense and its wish to avoid disparities in sentencing between Mr. McComb and his co-defendants in this case, as well as with others convicted of similar offenses.

Second, the court found that Mr. McComb's condition "is not nearly as extreme as he would lead this court to believe. Specifically, the defendant was able to drive himself from his home [in Oklahoma] to Arkansas where he lived for approximately nine months while dealing with his health conditions by himself as well as providing care for his ten-year-old son." Sent. Hr'g Tr. at 6.

Third, the court related that it had inquired of the Bureau of Prisons ("BOP") whether facilities existed to afford Mr. McComb appropriate medical care. The court reported that it had received a letter from the BOP medical director affirming that BOP could "appropriately provide for all of defendant's health-related needs." Id. at 5. On this basis, the court found that "defendant's condition [is not] so extraordinary that the Bureau of Prisons would be unable to provide the defendant with needed medical care and correctional treatment in the most effective manner." Id. at 6-7.

Finally, the court found that the evidence indicated that "the defendant lived in Arkansas with his ex-wife who, according to numerous witnesses, is a heavy drug user and addict. In order to prevent the defendant from associating with [a] drug user, this court finds it necessary to incarcerate the defendant. Such incarceration will promote respect for the law and deter future criminal conduct." Id. at 6.

While the court fully appreciated that it had "authority to depart or vary from the advisory guideline range" it nonetheless concluded that, "after considering all the factors in Section 3553(a), ... this court finds by a preponderance of the evidence that the factors suggested by the defendant do not sufficiently reflect mitigating circumstances which would warrant a sentence below the advisory guideline range in this case." Id. at 7 (emphasis added). The court then added that "the defendant's motion for downward departure from the advisory guideline range is denied." Id.

Though the court spoke of its authority to depart or vary and referenced all of the factors in Section 3553(a) pertinent to a variance request, because its final words formally addressed only the motion for a departure, Mr. McComb's attorney sought further clarity with respect to his motion for variance, stating that "I'm assuming the court's ruling would be the same but that motion has not been ruled upon." Id. at 9. The court immediately confirmed counsel's suspicion, responding that "the result and my thinking in this case is the same, that that would be denied." Id.

Mr. McComb now appeals, contending that his sentence is unreasonable in two respects. First, he complains that the court acted in a procedurally unreasonable manner at sentencing by failing to address his motion for variance more extensively. Second, Mr. McComb argues that the court's sentence is substantively unreasonableness in light of his mental and physical condition. We consider these points in turn.²

II

Our appellate review of sentencing challenges is circumscribed by a presumption that within-Guidelines sentences reflecting a correct determination of the applicable Guidelines' range are reasonable. Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007); United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir.2006). The Supreme Court recently explained that such a presumption on appeal is permissible because, among other things, in adopting a Guidelines-based sentence the district court necessarily will have come to the same conclusion as the Sentencing Commission about the proper sentence for the case at hand. This concurrence between the Sentencing Commission's "wholesale" judgment and the district court's independent "retail" judgment, the Court held, is strong evidence of the reasonableness of the ultimate sentence imposed. Rita, 127 S.Ct. at 2463; see also Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 574-75 169 L.Ed.2d 481 (2007).³

In Rita, the Supreme Court also indicated that, to overcome the presumption of reasonableness, an appellant must demonstrate that the district court abused the discretion afforded to it by Congress in sentencing under 18 U.S.C. § 3553. Rita, 127 S.Ct. at 2465; see also Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 591-92, 596-97, 169 L.Ed.2d 445 (2007) ("[T]he appellate court must review the sentence under an abuse-of-discretion standard."); Kristl, 437 F.3d at 1054. The Court's abuse of discretion formulation is in keeping with our pre-existing understanding of the appropriate level of deference afforded to the district court through the presumption of reasonableness; indeed, since Rita, we have emphasized the congruence between the "abuse of discretion" standard of review and our longstanding "reasonableness" test. See United States v. Angel-Guzman, 506 F.3d 1007, 1014-15 (10th Cir.2007).

Perhaps not unlike any other formulaic standard of review, the term "abuse of discretion" is not...