587 F.3d 348 (6th Cir. 2009), 07-3449, United States v. Simmons

Docket Nº:07-3449.
Citation:587 F.3d 348
Opinion Judge:BOGGS, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Curtis A. SIMMONS, Defendant-Appellant.
Attorney:Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Kevin Winters Kelley, Assistant United Stat...
Judge Panel:Before: BOGGS and CLAY, Circuit Judges; BERTELSMAN, District Judge. [*] BOGGS, J., delivered the opinion of the court, in which BERTELSMAN, D.J., joined. CLAY, J. (pp. 367-400), delivered a separate dissenting opinion. CLAY, Circuit Judge, dissenting.
Case Date:November 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 348

587 F.3d 348 (6th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Curtis A. SIMMONS, Defendant-Appellant.

No. 07-3449.

United States Court of Appeals, Sixth Circuit.

November 23, 2009

Argued: Dec. 3, 2008.

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ARGUED:

Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant.

Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Steven S. Nolder, Federal Public Defender's Office, Columbus, Ohio, for Appellant.

Kevin Winters Kelley, Assistant United States Attorney, Columbus, Ohio, for Appellee.

Before: BOGGS and CLAY, Circuit Judges; BERTELSMAN, District Judge. [*]

BOGGS, J., delivered the opinion of the court, in which BERTELSMAN, D.J., joined.

CLAY, J. (pp. 367-400), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

On three separate occasions within an 18-month period, Simmons was arrested in possession of both crack cocaine and a firearm. He pled guilty to one count of

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possession of more than five grams of crack cocaine with intent to distribute and one count of being a previously convicted felon in possession of a firearm. The district court sentenced Simmons to 116 months of imprisonment and three years of supervised release, which is within the range supplied by the advisory Sentencing Guidelines. In this appeal, Simmons contends his sentence was procedurally and substantively unreasonable. While we hold that the district court's sentencing was adequate, the Guidelines have since been revised to lower the range for certain crack offenses and Simmons may be eligible for a sentencing reduction. Therefore we affirm and remand.

I

A federal grand jury indicted Simmons on six separate counts of firearms and narcotics offenses arising out of three separate arrests. The first arrest occurred on December 30, 2004. When officers approached his vehicle pursuant to a traffic stop, Simmons left the car, dropping a loaded handgun as he fled on foot. After arresting him, the police uncovered 3.5 grams of crack in his car. The next arrest took place roughly a year later. On February 19, 2006, police found Simmons unconscious behind the wheel of a car at an intersection. He did not have his driver's license, and he had 5.3 grams of crack in his possession. An inventory search of his car turned up yet another loaded handgun. Simmons was prohibited from possessing a firearm because he had previously been convicted of a felony.

On February 23, 2006, a federal grand jury returned an indictment charging Simmons with two counts of being a previously convicted felon in possession of a firearm, one count of possession of crack cocaine with the intent to distribute, and one count of possession of more than five grams of crack cocaine with intent to distribute. See 18 U.S.C. § 922(g)(1); 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). An arrest warrant was issued, but Simmons was not ultimately detained until May 12, 2006, in the course of still another traffic stop. On this occasion, officers found 2.9 grams of crack cocaine in his possession and retrieved a loaded 9-mm firearm from the backseat of his car. At this point, Simmons was arrested and taken into custody pursuant to the February indictment. On June 29, 2006, a federal grand jury returned a superseding indictment charging Simmons with two additional offenses in connection with his latest arrest. In total, Simmons was charged with three counts of being a convicted felon in possession of a firearm, two counts of possession with intent to distribute crack cocaine, and a single count of possession with intent to distribute more than five grams of crack cocaine.

Pursuant to a plea agreement, Simmons pled guilty to one count of being a previously convicted felon in possession of a firearm (Count 3) and one count of possession with intent to distribute over five grams of crack cocaine (Count 4). He entered this plea with full knowledge of the potential penalties. For Count 3, the statute provided for a maximum sentence of ten years of imprisonment, a fine of up to $250,000, and a three-year term of supervised release. For Count 4, the statute provided for a minimum sentence of five years of imprisonment, a maximum sentence of forty years, a maximum term of five years of supervised release, and a fine up to $2 million. At his change of plea hearing, Simmons indicated that he understood this sentence would be determined by the court, using both the Sentencing Guidelines and the factors enumerated in 18 U.S.C. § 3553(a).

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Simmons's plea agreement expressly stated that his conduct would be considered under § 2D1.1 and § 1B1.3 of the Sentencing Guidelines. The parties also agreed to a sentencing enhancement under § 2K2.1 (b)(5), which applies if a firearm was used in connection with another felony offense. The Assistant United States Attorney in turn agreed to recommend that Simmons had timely accepted responsibility for the offense. The Presentence Investigation Report found that Simmons had in his possession a total of 11.7 grams when the crack from all three drug counts was added together, which led to a base offense level of 26 for the offense in Count 4. With a two-level enhancement for the firearm and a three-level reduction for accepting responsibility, the adjusted offense level was 25. Finally, the probation officer found Simmons had 15 criminal history points, making him a Category VI offender. The advisory sentencing range was thus 110 to 137 months.

Prior to the sentencing hearing, Simmons filed a sentencing memorandum, arguing that he was entitled to a downward variance on the basis of § 3553(a). This memorandum argued that a downward variance was warranted because of the Guidelines' disparate treatment of similar quantities of crack and powder cocaine. The government chose not to file a response, and the sentencing hearing took place on March 7, 2007. At this time, the defense again argued that the disparity in penalties for crack and powder cocaine offenses made the Guidelines range excessive and entitled the defendant to a lower sentence.

The Probation Officer recommended a sentence of 110 months, and the sentencing judge ultimately sentenced Simmons to 116 months of imprisonment and three years of supervised release. This sentence was in the lower half of the Guidelines range and, in computing the sentence, the judge referenced several of the relevant § 3553(a) factors and discussed some of the individual circumstances of the crime. In explaining the sentence, the judge did not address the Guidelines' disparate treatment of crack and powder-cocaine offenses. At the conclusion of the proceedings, the court asked the parties whether they had any additional objections in accordance with United States v. Bostic, 371 F.3d 865 (6th Cir.2004). Defense counsel indicated that she objected to the sentence " on both procedural and substantive grounds." The defendant now appeals the district court's sentence, contending that it was procedurally and substantively unreasonable.

II

Before we can determine whether the defendant's sentence was procedurally or substantively objectionable, we must first determine what standard of review to apply to these claims. As a general proposition, the Federal Rules of Criminal Procedure distinguish between cases in which a party objects to a court's decision and those in which a party neglects to make an objection, despite an opportunity to do so. Fed.R.Crim.P. 51(b). This court reviews the former category of cases under a reasonableness standard and the latter category under a plain-error standard. Ibid. The application of this rule poses many difficulties in the context of sentencing proceedings because of the inherent difficulty of determining when a party has had " a meaningful opportunity to object." Bostic, 371 F.3d at 873 n. 6.

In Bostic, we sought to clarify matters by suggesting that, after pronouncing the defendant's sentence, the district court " ask the parties whether they have any objections to the sentence ... that have not previously been raised." Id. at 872.

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This approach not only ensures that parties may object to the court's reasoning or failure to address a particular argument, it also affords the district court an opportunity to correct errors right away and facilitates appellate review by identifying " precisely which objections have been preserved." Id. at 873. Indeed, it seems especially pertinent with respect to objections that concern the adequacy of the court's explanation precisely because such objections cannot be made until after the court states its reasoning in the course of sentencing the defendant.

In United States v. Vonner, this court determined the standard of review to apply when " a sentencing judge asks this question and ... the relevant party does not object." 516 F.3d 382, 385 (6th Cir.2008) (en banc). After pronouncing the defendant's sentence in that case, the district court asked both parties whether they " ha[d] any objection to the sentence just pronounced." Id. at 384. Vonner's counsel replied, " No, Your Honor." Ibid. On appeal, the defendant claimed for the first time that his sentence was procedurally inadequate because the district court's pronouncement of the sentence did not address specifically defendant's arguments for a downward variance. Vonner held that the more exacting " plain error" standard of review, not reasonableness, should apply to this objection. " No doubt, we could encourage district courts to ask the Bostic question without imposing any consequences on a party's failure to answer it. But that would undermine its effectiveness." Id. at 391. Vonner emphasized that substantive and procedural claims made by counsel prior to sentencing are reviewed for reasonableness,...

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