U.S.A v. Harmon, 09-5006.

Decision Date02 June 2010
Docket NumberNo. 09-5006.,09-5006.
PartiesUNITED STATES of America, Plaintiff-Appellee,v.Jeffrey Thomas HARMON, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: Paula R. Voss, Federal Defender Services of Eastern, TN., Inc., Knoxville, Tennessee, for Appellant. Cynthia F. Davidson, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: GIBBONS and GRIFFIN, Circuit Judges; DOWD, Senior District Judge.*

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Jeffrey Thomas Harmon appeals the district court's decision ordering that his 46-month sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) be served consecutively to an undischarged state sentence on an unrelated conviction for voluntary manslaughter. For the reasons that follow, we affirm the district court's decision.

I.

The Presentence Investigation Report (“PSR”), to which Harmon had no objection, summarized the offense conduct relevant to Harmon's state and federal convictions.

On April 7, 2006, Harmon pled guilty to voluntary manslaughter in the Criminal Court of Clairborne County, Tennessee, and was sentenced to nine years imprisonment. He was judicially released on June 2, 2007. On March 10, 2008, Harmon's parole officer received information that Harmon was outside his residence shooting a weapon. Harmon was arrested and admitted that he had been shooting a rifle. On the following day, the parole officer and law enforcement officers searched Harmon's residence and found three guns, more than 1,000 rounds of ammunition, and over an ounce of marijuana. Harmon was subsequently indicted on and pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). As a result of the discovery of the firearms at issue in the federal case, Harmon's state parole was revoked on April 21, 2008.

The PSR recounted Harmon's personal circumstances. Harmon graduated from high school and had been a certified welder in the past. He has been on disability since 1991 but reported a steady work history, including driving a truck and factory work, before his disability. He suffered from a number of physical ailments, including the amputation of his left leg due to diabetes, hypertension, chronic pain syndrome, cartilage damage in his right knee, and ulcers on his arms and legs. He was also treated for depression and had attempted to commit suicide in 2006 while in jail. Harmon smoked marijuana daily and used up to $200 of crack cocaine a month until his arrest. He indicated that he wished to enter a drug and alcohol treatment program while incarcerated.

Starting from a base offense level of 20, the PSR calculated an adjusted offense level of 19 after adjustments for the number of firearms involved and Harmon's acceptance of responsibility. The PSR also calculated that Harmon was in criminal history category IV. The applicable Guidelines range was 46 to 57 months. The parties did not object to the PSR.

Harmon appeared with appointed counsel for sentencing on December 16, 2008. The district court stated that “the sentence of this court shall be made pursuant to the factors set forth in [18 U.S.C. § 3553(a)], treating the sentencing commission guidelines as advisory only.” Harmon's counsel then requested that his sentence run concurrently with the state sentence. She first noted that Harmon was not in great health and suffered from diabetes and depression. She then stated that Harmon's state sentence ran until 2015 and his “first parole eligibility would be coming up probably in the spring of next year [with] no guarantee or even expectation I don't think that he is going to make parole the first time around.” She then pointed out that Harmon was not in a work training program while in state custody and was scheduled to enter a nine-month drug and alcohol treatment program with a component on anger management. She argued that state incarceration provided Harmon with medical care and drug and alcohol treatment and that he is receiving most of what he needs in the state system.” She asked the district court to order that Harmon's sentence run either concurrently or partially concurrently with his state sentence and contended that if Harmon made parole, he would be paroled directly to his federal sentence at that time.” Defense counsel concluded by remarking that Harmon's drug treatment could be provided during his supervised release. The government requested that Harmon be sentenced within the Guidelines range and did not take a position on the issue of concurrent or consecutive sentencing.

The district court first addressed Harmon's argument for a concurrent sentence. The district court ordered that Harmon's sentence be served consecutively to the state sentence, stating:

Well, I am not at all sure why the state placed Mr. Harmon on judicial release. It appears to me that it's inappropriate in this case to run the sentences concurrent. Ms. Voss, you can always seek to get the state of Tennessee to run part of its sentence concurrent with the federal sentence. In this case I don't believe, I just don't have the confidence in what the state is going to do that would allow me to allow these sentences to run concurrently with the state of Tennessee sentence.

It then pronounced a 46-month sentence, at the bottom of the applicable Guidelines range, having “considered the nature and circumstances of the offense, the history and characteristics of the defendant and the advisory guideline range, as well as the other factors listed in [18 U.S.C. § 3553(a)].”

Before explaining its reasoning, the district court asked counsel for any “objection to the sentence as previously read and stated by [the] court,” and defense counsel responded, “Only as to the concurrency, Your Honor.” Neither the court nor counsel addressed any further objection and the district court proceeded to explain that it was concerned by Harmon's possession of multiple firearms and ammunition, especially in light of his voluntary manslaughter conviction. The court was troubled by Harmon's continued use of firearms, significant history of substance abuse, and mental health issues. As a factor in Harmon's favor, the court pointed to Harmon's high school degree and certification as a welder and found that Harmon could enhance his skills while in custody. These factors led the court to find that a 46-month sentence was “sufficient but not greater than necessary, to reflect the seriousness of the offense, and, importantly, to protect the public from further crimes of this defendant.” At the end of the hearing, the court asked counsel if anything further needed to be taken up with the court, and both responded negatively.

Harmon timely appealed, arguing that the district court's failure to consider the factors set forth in U.S.S.G. § 5G1.3 rendered his sentence procedurally unsound and that the district court failed to fashion an incremental punishment that was sufficient but not greater than necessary to meet the mandate of 18 U.S.C. § 3553(a).

II.

We review a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Because defense counsel did not object to the district court's purported procedural error in failing to consider U.S.S.G. § 5G1.3 with enough specificity, a plain error standard of review applies. However, a reasonableness standard of review applies to Harmon's substantive argument because counsel clearly argued to the district court that he deserved a concurrent sentence based upon his health, parole status, and eligibility for drug and mental health treatment.

“A party ‘must object with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection.’ United States v. Bostic, 371 F.3d 865, 871 (6th Cir.2004) (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.1980) (citations omitted)). “A specific objection provides the district court with an opportunity to address the error in the first instance and allows this court to engage in more meaningful review.” Id. We require district courts to “ask the parties whether they have any objections to the sentence ... that have not previously been raised.” Id. at 872.

The so-called Bostic question is “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.” United States v. Simmons, 587 F.3d 348, 354 (6th Cir.2009). In Simmons, defense counsel argued at sentencing that the defendant deserved a downward variance because of the Guidelines' disparate treatment of crack and powder cocaine crimes. Id. at 355. In response to the Bostic question, counsel objected “just for the record for the procedural, substantive aspects.” Id. (quoting counsel). On appeal, the defendant argued that the district court failed to address his argument for a variance. We held that counsel's failure to object specifically that the sentencing judge did not address her policy argument required the application of plain-error review. Id. at 358. Although counsel responded to the Bostic question in the affirmative, she did so “at such a high degree of generality that the district court ha[d] no opportunity to correct its purported error and the court of appeals ha[d] been deprived of a more detailed record to review.” Id. Simmons emphasized that allowing counsel to omit any explanation of her objections would render the Bostic question “a meaningless formality whereby certain magic words are uttered and any new claim may be raised on appeal without consequence.” Id. at 357; see also United States v. Martin, No. 08-6426, 2010 WL 1324890, 371 Fed.Appx. 638, 2010 U.S.App. LEXIS 7058, at *3-4 (6th Cir. April 6, 2010)...

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