U.S. v. Chandler

• Decision Date: 16 August 2005
• Docket Number: No. 04-6203.,04-6203.
• Citation: 419 F.3d 484
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Grady CHANDLER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

419 F.3d 484

UNITED STATES of America, Plaintiff-Appellee, v. Grady CHANDLER, Jr., Defendant-Appellant.

No. 04-6203.

United States Court of Appeals, Sixth Circuit.

Argued: July 21, 2005.

Decided and Filed: August 16, 2005.

ARGUED:

Paula R. Voss, Federal Defender Services, Knoxville, Tennessee, for Appellant. Steve H. Cook, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Paula R. Voss, Federal Defender Services, Knoxville, Tennessee, for Appellant. Steve H. Cook, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: KENNEDY, CLAY, and GILMAN, Circuit Judges.

KENNEDY, Circuit Judge.

On March 2, 2004, Defendant Grady Chandler pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court adopted the presentence report's recommendation and assigned the Defendant a base offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4), as the Defendant committed the instant offense subsequent to sustaining a felony conviction of a crime of violence. The prior conviction was for facilitation of aggravated assault, which the district court concluded constituted a crime of violence as defined in U.S.S.G. § 4B1.2(a)(1). The district court then decreased the base offense level by 2 pursuant to U.S.S.G. § 3E1.1(a) for acceptance of responsibility and granted the government's motion for an additional one level reduction pursuant to U.S.S.G. § 3E1.1(b), arriving at a total offense level of 17. Given Chandler's criminal history category of IV and a total offense level of 17, the Guidelines called for a sentence of between 37 and 46 months. The district court sentenced the Defendant to 37 months' imprisonment.

The Defendant appeals from his sentence, arguing that the district court 1) imposed his sentence under the erroneous belief that the Guidelines were mandatory, in violation of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and 2) erred in applying the Guidelines by concluding that the Defendant's prior conviction for facilitation of aggravated assault qualified as a crime of violence.

In interpreting Booker, this court has held that when a district court sentences a defendant under the presumption that the Guidelines are mandatory, we presume that the defendant's substantial rights were affected. United States v. Barnett, 398 F.3d 516, 529 (6th Cir.2005). In this case, however, the district court not only determined the Defendant's sentence pursuant to the Guidelines, but also treated the Guidelines as advisory and sentenced the Defendant pursuant to the sentencing factors outlined in 18 U.S.C. § 3553(a).¹ Thus, the imposition of the Defendant's sentence does not implicate the Sixth Amendment. United States v. Booker, 125 S.Ct. at 750 ("If the Guidelines ... could be read as merely advisory ... rather than required, their use would not implicate the Sixth Amendment.... For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.").

Although we need not remand this case for re-sentencing on account of Booker, we must still determine whether the sentence imposed by the district court was "reasonable." Booker, 125 S.Ct. at 766. A sentence may be unreasonable "when the district judge fails to `consider' the applicable guidelines range or neglects to `consider' the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such consideration." United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005).

The Defendant asserts that the district court erred in determining his Guidelines recommended range by assigning him a base offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4) on the improper conclusion that his Tennessee conviction for facilitation of aggravated assault constituted a crime of violence as defined in U.S.S.G. § 4B1.2(a)(1). "The term `crime of violence' means any offense under federal or state law punishable by imprisonment for a term exceeding one year, that has as an element the use, attempted use, or threatened use of physical force against the person of another." § 4B1.2(a)(1). The Defendant argues that the district court erred in finding that the Defendant's prior conviction for "facilitation of a felony" constituted a crime of violence. Although the underlying felony that the Defendant was found to have facilitated was aggravated assault, the Defendant asserts that the court may not look into the conduct underlying a facilitation conviction. Thus, the Defendant argues, since many felonies "could be facilitated without any risk of physical harm to any person, it cannot be said that the potential for bodily harm is an essential element of the crime of facilitation to commit a felony under Tennessee law."

The Tennessee facilitation of a felony statute provides that a "person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for [the offense] ..., the person knowingly furnishes substantial assistance in the commission of the felony." Tenn.Code Ann. § 39-11-403(a). Furthermore, it provides that "facilitation of the commission of a felony is an offense of the class next below the felony facilitated by the person so charged." Id. at § 39-11-403(b). A reading of this statute indicates, then, that the specific underlying felony that a defendant is found guilty of facilitating provides the substance of the criminal conviction, for to determine whether a defendant is guilty of facilitation and to determine the defendant's sentence, the court must look to the underlying specific felony. Under this statute, a defendant is never convicted of a generic "facilitation of a felony" charge. Rather, a defendant convicted for facilitation is always found to have facilitated a specific felony. See State v. Parker, 932 S.W.2d 945, 950-51 (Tenn.Crim.App.1996) (noting that before an accused can be convicted of facilitation of a felony, "the state must prove the commission of a specified felony and the assistance the accused gave to the person committing the specified felony."); see also United States v. Sawyers, 409 F.3d 732, 738 (6th Cir.2005) ("noting that, in determining whether facilitation of a felony under Tennessee law constitutes a crime of violence, a court must look to the crime actually facilitated."). In this case, the Defendant pled guilty to facilitation of aggravated assault.

The Defendant next argues that, even if we consider the prior conviction to be one for "facilitation of an aggravated assault" (rather than "facilitation of a felony"), the conviction still does not constitute a crime of violence. The Defendant notes that, under Tennessee law, to be guilty for facilitation of a specific felony, the defendant must not possess the requisite intent to be guilty of the...