U.S. v. Tate

• Decision Date: 14 January 2011
• Docket Number: Nos. 09–3052,09–3055.,s. 09–3052
• Parties: UNITED STATES of America, Appelleev.Rashaad G. TATE, also known as Rah, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

630 F.3d 194

394 U.S.App.D.C. 50

UNITED STATES of America, Appellee

v.Rashaad G. TATE, also known as Rah, Appellant.

Nos. 09–3052

09–3055.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 7, 2010.Decided Jan. 14, 2011.

Appeals from the United States District Court for the District of Columbia (No. 1:08–cr–00312).Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant Rashaad G. Tate. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.Kavita Kumar Puri argued the cause for appellant Richard E. Young. With her on the brief were Justin S. Antonipillai, appointed by the court, and Wells C. Bennett.Benjamin L. Eisman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and Gregory G. Marshall, Assistant U.S. Attorneys. Roy W. McLeese III, Assistant U.S. Attorney, entered an appearance.Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.Opinion for the Court by Circuit Judge ROGERS.ROGERS, Circuit Judge:

Appellants Rashaad G. Tate and Richard E. Young challenge their sentences and seek remands for resentencing. Upon reviewing the requirements of Rule 51 of the Federal Rules of Criminal Procedure for preserving error and 18 U.S.C. § 3553(a) for sentencing defendants, and of 18 U.S.C. § 3553(f)(5) for eligibility for safety-valve sentencing, we affirm.

I.

Tate and Young were indicted on a single count of unlawful distribution of five grams or more of cocaine base on May 6, 2008, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and 18 U.S.C. § 2. Tate was also indicted for the same offense committed on May 14, 2008.

The government's evidentiary proffers stated that on May 6, 2008, a confidential informant had called Tate about purchasing 62 grams of crack cocaine. Tate said he would contact Young, and later told the informant where and when to meet Young. When the meeting occurred Young told the confidential informant that he did not have 62 grams at that time and sold 34.3 grams to the informant for $1,200. On May 14, 2008, Tate sold the confidential informant an additional 29.1 grams of cocaine base for $1,000. The proffer regarding Tate also referred to the May 14, 2008 sale and to 178 cell-phone conversations between Tate and Young between April 25, and May 7, 2008. Each proffer stated that it was “not intended to constitute a complete statement of all facts known by [each] defendant or the Government, but is a minimum statement of facts intended to provide the necessary factual predicate for the guilty plea [s].”

Tate pleaded guilty to a single count and was sentenced to 100 months' imprisonment and 48 months' supervised release, and was ordered to pay a $100 special assessment. Young also pleaded guilty and was sentenced to the mandatory minimum of 60 months' imprisonment and 60 months' supervised release, and was ordered to pay a $100 special assessment.

II.

Tate contends that he is entitled to a remand for resentencing on three grounds of procedural error, because the district court: (1) mistakenly believed that the 2007 amendment to the crack guideline in the United States Sentencing Guidelines (“U.S.S.G.”) had reduced the crack-to-powder disparity from 100 to 1 to a disparity “in the neighborhood” of 20 to 1 when the amendment brought the disparity to 70 to 1 as applied to Tate's offense level ¹; (2) believed it lacked discretion to impose a non-guideline sentence based solely on its policy disagreement with the crack-to-powder disparity; and (3) imposed a greater sentence than was necessary on the assumption that the crack guideline would change in the future and that the court would have the opportunity to “redo” the sentence. Tate does not contend his sentence was substantively unreasonable, and he acknowledges that his third claim is raised for the first time on appeal and reviewable only for plain error. The government maintains that all of Tate's challenges are advanced “for the first time on appeal,” Appellee's Br. 24, and therefore subject to plain error review, see Fed.R.Crim.P. 52(b); United States v. Coles, 403 F.3d 764, 767 (D.C.Cir.2005), which he fails to show.

Rule 51 of the Federal Rules of Criminal Procedure provides, in relevant part, that exceptions to the district court's rulings or orders are unnecessary, and that claims of error are preserved when a party informs the district court of the requested action, or of the objection and the grounds therefor.² United States v. Wilson, 605 F.3d 985, 1022 (D.C.Cir.2010). The point of requiring objections to be made at the time of sentencing is to afford the district court the opportunity to consider them, not to clutter the proceedings with needless objections after the district court has ruled. In re Sealed Case, 349 F.3d 685, 690 n. 2 (D.C.Cir.2003). Indeed, Rule 51(b) was adopted in part to eliminate the necessity of redundant exceptions to rulings. 3B Charles A. Wright, Nancy J. King & Susan R. Klein, Federal Practice & Procedure § 841 (3d ed. 2004). Thus, in United States v. Rashad, 396 F.3d 398, 401 (D.C.Cir.2005), the court stated that “[a]ll a defendant need do to preserve a claim of error ... is inform the [district] court and opposing counsel of the ruling he wants the court to make and the ground for so doing.” Other circuits have adopted similar approaches to this longstanding rule. In United States v. Ortiz, 431 F.3d 1035, 1039 (7th Cir.2005), the court stated that “when a defendant consistently disputes an issue, and the district court does not specifically elicit objections to the adequacy of the findings, the defendant is not required to interpose a further objection to the adequacy of the district court's findings after the district court has ruled.” So too in United States v. Castillo, 430 F.3d 230, 243 (5th Cir.2005), the court held that where the prosecutor had repeatedly made his position known but never objected to the sentence imposed and the district court had made clear its disagreement with the prosecutor's position, “requiring a formal objection by the prosecutor ... would have been futile, would not have served the purposes behind requiring contemporaneous objections, and would have clearly ‘exalt[ed] form over substance.’ ”

Tate's counsel informed the district court that he believed the crack-to-powder cocaine disparity was between 60 and 80 to 1, not 20 to 1, and counsel requested imposition of a sentence for Tate no higher than the mandatory minimum pursuant to the district court's discretion to vary from the Guidelines, citing Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009). Having stated the facts and the law regarding the disparity and having requested that the district court exercise its discretion to sentence Tate based on a different crack-to-powder ratio, counsel preserved Tate's first two claims of error and counsel was not obligated to object when the district court rejected his request for a sentence at the mandatory minimum. Our review of these claims, therefore, is for abuse of discretion. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Our review of purely legal questions is de novo, see United States v. Bridges, 175 F.3d 1062, 1065 (D.C.Cir.1999), for “[a] district court by definition abuses its discretion when it makes an error of law,” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We review the district court's findings of fact for clear error and accord “due deference” to the district court's application of the Guidelines to found facts. See United States v. Erazo, No. 10–3012, slip op. at 5 (D.C.Cir. circulated to the full court December 22, 2010) (internal citations and quotation marks omitted).

Although Tate's first two challenges were properly preserved, he fails to show legal error by the district court on either.

First, prior to accepting his guilty plea, the district court advised Tate that the Guidelines were “just recommendations,” and that it would first look to the Guidelines and then proceed to analyze the factors in 18 U.S.C. § 3553(a) to impose a sentence “sufficient but not greater than necessary” to accomplish the goals of sentencing. Tr. 5 (Feb. 27, 2009). When Tate's counsel argued at the sentencing hearing for imposition of the mandatory minimum sentence, the district court challenged counsel's assumption that the disparity between crack and powder cocaine was 100 to 1, noting the Sentencing Commission's amendment to the Guidelines in 2007 and inquiring whether, in view of the two-level reduction in the offense level, the disparity was 20 to 1. Tate's counsel informed the district court that the recalibration had not brought the disparity down to 20 to 1 but “more like between 60 to 80 to 1.” Tr. 10 (May 7, 2009). The district court responded, “it's not exactly 20 to 1 as you point out. But it is in that neighborhood.” Id.

On the latter sentence, and specifically on the last word, hangs Tate's first claim of error. He contends this statement indicates that the district court misunderstood the applicable law and such a procedural error requires resentencing because at 20 to 1, the applicable guideline range would have been 70 to 87 months' imprisonment, not 100 to 125 months'. Because a 20 to 1 disparity (70–87 months) cannot reasonably be said to be “in the neighborhood of” either 60 or 80 to 1, Tate maintains that the district court erred as a matter of law, and that his sentence is procedurally unreasonable, in violation of due process and the requirement of section 3553(a) that a sentence be no greater than necessary.

The ensuing sentencing proceedings, however, show that unlike in King v. Hoke, 825 F.2d 720 (2d Cir.1987), on which Tate relies, where there was clear evidence that the district court's...