648 F.3d 417 (6th Cir. 2011), 09-1961, United States v. Taylor

Docket Nº:09-1961.
Citation:648 F.3d 417
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marious Delano TAYLOR, Defendant-Appellant.
Attorney:Clare E. Freeman, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. Clare E. Freeman, Richard D. Stroba, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Timot...
Judge Panel:Before: MOORE, COLE, and ROGERS, Circuit Judges.
Case Date:June 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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648 F.3d 417 (6th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marious Delano TAYLOR, Defendant-Appellant.

No. 09-1961.

United States Court of Appeals, Sixth Circuit.

June 7, 2011

Argued: March 2, 2011.

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ARGUED:

Clare E. Freeman, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant.

Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

ON BRIEF:

Clare E. Freeman, Richard D. Stroba, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant.

Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MOORE, COLE, and ROGERS, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Marious Delano Taylor pleaded guilty to one count of violating the federal felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g)(1). The district court sentenced him to 120 months of imprisonment, but the government appealed and we vacated the sentence and remanded the case to the district court for resentencing in accordance with the Armed Career Criminal Act (" ACCA" ). After a Michigan state court amended the judgment of one of Taylor's predicate convictions for the ACCA enhancement, the district court resentenced Taylor to the same 120-month term of imprisonment. Taylor now appeals the sentence, raising both procedural and substantive challenges. Because the district court at resentencing was without the guidance of the Supreme Court's recent decision in Pepper v. United States, __ U.S. __, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), we VACATE the sentence and REMAND the case to the district court for de novo resentencing consistent with this opinion.

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I. BACKGROUND & PROCEDURE

On December 5, 2006, Taylor was indicted on one count of violating the federal felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g)(1). After the district court denied Taylor's motion to suppress evidence seized at his home pursuant to a search warrant, Taylor entered a plea of guilty. Prior to sentencing, the U.S. Probation Office prepared a Presentence Investigation Report (" PSR" ) applying the May 1, 2007 edition of the United States Sentencing Guidelines (" U.S.S.G." or " Guidelines" ) Manual. The PSR concluded that Taylor had been convicted of two prior violent felonies and one serious drug offense and therefore qualified as an armed career criminal under the ACCA, 18 U.S.C. § 924(e). As an armed career criminal, Taylor faced a statutorily mandated minimum sentence of 15 years of imprisonment, and the PSR recommended a Guidelines range of 188 to 235 months based on a total offense level of 31 and a criminal history category of VI. The PSR also calculated Taylor's Guidelines range if the ACCA did not apply, which was 110 to 120 months based on a total offense level of 25 and a criminal history category of VI.

Taylor challenged the PSR's conclusion that he qualified as an armed career criminal. At the sentencing hearing held on June 28, 2007, the district court ruled that the ACCA did not apply to Taylor because it concluded that his 2002 Michigan conviction for attempted delivery of under 50 grams of cocaine did not qualify as a " serious drug offense." See 18 U.S.C. § 924(e)(2)(A) (defining " serious drug offense" ). The district court sentenced Taylor to 120 months of imprisonment— the statutory maximum under § 924(a)(2).

Taylor appealed the district court's denial of his motion to suppress, and the government cross-appealed the district court's determination that the ACCA did not apply to enhance Taylor's sentence. We affirmed the district court's denial of Taylor's motion to suppress but reversed the district court's decision not to apply the ACCA. United States v. Taylor, 301 Fed.Appx. 508 (6th Cir.2008) (unpublished decision), cert. denied, __ U.S. __, 129 S.Ct. 2886, 174 L.Ed.2d 594 (2009). We concluded that Taylor's 2002 Michigan " conviction for an offense involving distributing a controlled substance, enhanced by [a] prior conviction to a maximum term of incarceration of ten years, satisfies the definition of ‘ serious drug offense’ under the ACCA." Id. at 520. Therefore, we vacated the sentence and remanded " for re-sentencing in accordance with the ACCA." Id. at 522.

When the parties appeared before the district court for resentencing on June 4, 2009, defense counsel requested to delay resentencing because Taylor had asked the Michigan circuit court to amend the judgment of his 2002 attempted-delivery conviction. Under Michigan law, the maximum penalty for Taylor's attempt conviction was five years of imprisonment. Id. at 519 (citing MICH. COMP. LAWS §§ 333.7401(2)(a)(iv), 750.92). Taylor, however, had a prior conviction that triggered an enhanced penalty provision of ten years. Id. (citing MICH. COMP. LAWS § 333.7413(2)). Defense counsel told the district court that Taylor was challenging the application of the sentencing enhancement, and, if successful, his 2002 attempted-delivery conviction would not meet the ten-year-maximum-term-of-imprisonment requirement in the " serious drug offense" definition. The government opposed adjournment to wait for the state court's resolution of Taylor's request, but the district court reset the hearing.

On June 24, 2009, the Michigan circuit court granted Taylor's request, concluding that the sentence enhancement was improper.

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That court entered an Amended Judgment, which stated that the maximum sentence for Taylor's conviction was five years. Because the 2002 conviction no longer had a maximum term of imprisonment of ten years, Taylor submitted to the district court that he was not subject to the ACCA on resentencing. At a hearing on July 21, 2009, the district court adopted the Guidelines calculation from a Resentencing Report prepared by the U.S. Probation Office using the May 1, 2007 version of the Guidelines. The calculation resulted in an offense level of 25 and criminal history category VI, yielding a Guidelines range of 110 to 120 months. The district court again sentenced Taylor to the statutory-maximum sentence of 120 months of imprisonment, to run concurrent with a state sentence. Taylor timely appealed and now challenges the procedural and substantive reasonableness of his sentence.

II. ANALYSIS

A. Procedural Reasonableness

We review sentences for procedural reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Procedural unreasonableness includes when a sentencing court " fail[s] to calculate (or improperly calculat[es] ) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range." Id.

Taylor raises four arguments with respect to the procedural reasonableness of his sentence. He argues that the district court erred in (1) not considering amendments to the Guidelines adopted by the Sentencing Commission subsequent to his original sentencing, (2) relying on the Guidelines' cross-reference to the crack-cocaine guidelines, (3) stating that it was " varying" from the ACCA, and (4) applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for use or possession of a firearm in connection with another felony.

1. Postsentencing Amendments to the Guidelines

Taylor first argues that the district court erred by not considering amendments to the Guidelines adopted by the Sentencing Commission since his original sentencing, which— in his calculation— would have lowered his Guidelines range to 84 to 105 months (if the district court applied the drug guideline in § 2D1.1 based on the cross-reference in § 2K2. 1(c)(1)(A)) or 70 to 87 months (if it did not).1 See R.74 (Resent. Mem. Supp. at 4-7) (explaining calculations). Taylor argues that, under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the resentencing statute, 18 U.S.C. § 3742(g), which mandates that the district court apply the Guidelines in effect at the

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time of the original sentencing and limits when the district court can sentence outside the Guidelines range, " cannot bind a sentencing court to consider only the original guideline range or to impose a sentence within that range." Appellant Br. at 14.

In Pepper v. United States, __ U.S. __, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), decided on the same day that we held oral argument in this case, the Supreme Court expressly invalidated § 3742(g)(2), the subsection that prohibits the district court from resentencing a defendant outside the applicable Guidelines range except in two narrow circumstances. Id. at 1243-44. The Court concluded that, as with the sentencing provisions in 18 U.S.C. §§ 3553(b)(1) and 3742(e) that it invalidated in Booker, § 3742(g)(2) raises Sixth Amendment problems because it " requires district courts effectively to treat the Guidelines as mandatory in an entire set of cases." Id. at 1244. In a letter to this court pursuant to Federal Rule of Appellate Procedure 28(j), Taylor argues that § 3742(g)(1), which mandates that the district court apply the Guidelines " that were in effect on the date of the previous sentencing of the defendant prior to the appeal," should likewise be invalidated.

a. Validity of § 3742(g)(1) after Pepper

We first consider Taylor's argument that § 3742(g)(1) also should be invalidated as § 3742(g)(2) was in Pe...

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