U.S. v. Alexander
| Decision Date | 07 October 2008 |
| Docket Number | No. 07-1758.,07-1758. |
| Citation | 543 F.3d 819 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jermain Marvin ALEXANDER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: DAUGHTREY, GILMAN, and ALARCÓN, Circuit Judges.*
Jermain Marvin Alexander pled guilty to one count of possessing crack cocaine with the intent to distribute the drug. The district court sentenced him to 360 months in prison, to be followed by five years of supervised release. Alexander contends for the first time on appeal that the district court erred by adopting the Presentence Report's (PSR's) finding that he was a "career offender." He also argues that his sentence was both procedurally and substantively unreasonable. For the reasons set forth below, we AFFIRM the judgment of the district court.
In December 2006, Alexander was charged with possessing more than 50 grams of crack cocaine with the intent to distribute the drug. He pled guilty to that offense in late January 2007 before a magistrate judge and, approximately one month later, the district court accepted his plea. Alexander then requested that he be allowed to remain free on bond before his sentencing hearing. He argued that he was neither a danger to the community nor likely to flee, at least in part because he was receiving dialysis three times a week for an incurable, life-threatening condition called End-Stage Renal Disease. Alexander also noted that he suffers from congestive heart failure. The district court approved the recommendation of the magistrate judge to accept Alexander's request to remain free on bond. While Alexander was out on bond, however, he was arrested again for offenses involving the distribution of crack and the possession of marijuana. The government responded by filing a motion to revoke his bond. Alexander's sentencing hearing occurred before the district court had the opportunity to rule on the motion.
Before sentencing, Alexander filed a memorandum arguing that he should receive a lenient sentence under the factors set forth in 18 U.S.C. § 3553(a), and that he should receive a reduction in his offense level for having accepted responsibility for his actions by pleading guilty. At Alexander's sentencing hearing in June 2007, the district court imposed a 360-month term of imprisonment, five years of supervised release, and a $100 special assessment. The sentence reflects the PSR's determination that Alexander was a career offender. Alexander did not initially object to this determination. Indeed, his counsel conceded that he was in fact a career offender. The only objection expressly raised after the court imposed the sentence was that Alexander should have received credit for accepting responsibility for his crimes. This objection was overruled by the court on the basis that Alexander's arrest while he was free on bond indicated that he had not actually accepted such responsibility. Alexander timely appealed.
We review a district court's sentencing determination "under a deferential abuse-of-discretion standard" for reasonableness, which has both a procedural and a substantive component. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). This court must first ensure that the district court committed no procedural error. Id.; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). A district court necessarily abuses its sentencing discretion if it
commit[s][a] significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.
If, and only if, the district court's sentencing decision is procedurally sound, we will "then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard[,] ... tak[ing] into account the totality of the circumstances...." Id. District courts are charged with imposing "a sentence sufficient, but not greater than necessary, to comply with the purposes" of sentencing. 18 U.S.C. § 3553(a); United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir. 2006). This court also applies a rebuttable presumption of reasonableness for sentences within the Guidelines range. United States v. Heriot, 496 F.3d 601, 608 (6th Cir.2007); see also Gall, 128 S.Ct. at 597 () (citing Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007)).
Furthermore, "[i]f a party does not clearly articulate any objection and the grounds upon which the objection is based, when given [a] final opportunity [to] speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal." United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). To establish that a plain error has occurred,
a defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected [the] defendant's substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings.
United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.1998).
The Guidelines define a person as a career offender where (1) he or she is at least 18 years old at the time the instant offense was committed, (2) the offense is a felony that is either a crime of violence or a controlled-substance offense, and (3) the defendant has at least two such prior convictions. U.S.S.G. § 4B1.1(a).
Alexander does not contest that he is at least 18 years old, or that he was convicted for a controlled-substance offense in the present case. Nor does he contest that he has an earlier conviction for the delivery/manufacture of cocaine, which is a controlled-substance offense that establishes one of the two prior felony convictions required by the third prong of the career-offender Guideline. Alexander argues instead that the other predicate offense, which the PSR used to classify him as a career offender, is not properly classified as a crime of violence. The district court thus purportedly erred by relying on a faulty PSR in designating Alexander as a career offender. The government responds that the PSR is not faulty, and that Alexander has in fact been convicted of violating Mich. Comp. Laws Ann. § 750.81d(2) (West 2008), which in turn defines a crime of violence. We have concluded that the government is correct.
As a threshold matter, we note that Alexander did not bring this purported procedural error to the district court's attention during sentencing. Indeed, defense counsel conceded during the sentencing hearing that Alexander was a career offender. We will not, therefore, set aside the district court's sentence unless the court plainly erred in so designating Alexander. See Bostic, 371 F.3d at 872-73. This plain-error inquiry thus turns on whether Alexander has a prior conviction for committing a crime of violence.
Pursuant to U.S.S.G. § 4B1.2(a), a crime of violence is any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Under applicable Supreme Court precedent, we take a so-called "categorical approach" to determine whether a particular offense constitutes a crime of violence. United States v. Bartee, 529 F.3d 357, 359 (6th Cir.2008) (citing Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). This approach requires that we "look only to the fact of conviction and the statutory definition — not the facts underlying the offense — to determine whether that definition supports a conclusion that the conviction was for a crime of violence." Bartee, 529 F.3d at 359. If this initial inquiry is indeterminate, further inquiry "is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented." Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
The government contends that Alexander has been convicted of violating M.C.L.A. § 750.81d(2), which clearly defines a crime of violence. Under that statute,
[a]n individual who assaults, batters, wounds, resists, obstructs, opposes, or endangers a person who the individual knows or has reason to know is performing his or her duties causing a bodily injury requiring medical attention or medical care to that person is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $5,000.00, or both.
(Emphasis added.) Looking exclusively at the statutory definition of the offense, the plain language of this provision indicates that "causing bodily injury" is an element...
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