U.S. v. Collington

• Decision Date: 31 August 2006
• Docket Number: No. 05-4054.,05-4054.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Samuel F. COLLINGTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

461 F.3d 805

UNITED STATES of America, Plaintiff-Appellant, v. Samuel F. COLLINGTON, Defendant-Appellee.

No. 05-4054.

United States Court of Appeals, Sixth Circuit.

Argued: June 26, 2006.

Decided and Filed: August 31, 2006.

ARGUED: Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for Appellant. Douglas G. Smith, Kirkland & Ellis, Chicago, Illinois, for Appellee. ON BRIEF: Robert J. Becker, Assistant United States Attorney, Akron, Ohio, for Appellant. Douglas G. Smith, Kirkland & Ellis, Chicago, Illinois, for Appellee.

Before: MARTIN and GILMAN, Circuit Judges; SARGUS, District Judge.^*

MARTIN, J., delivered the opinion of the court, in which SARGUS, D. J., joined.

GILMAN, J. (pp. 811-817), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Samuel Collington pled guilty to possession with intent to distribute more than fifty grams of crack cocaine, 21 U.S.C. § 841(a)(1), felon in possession of a firearm, 18 U.S.C. § 922(g), and possession of a machine gun, 18 U.S.C. § 922(o). At sentencing, the district court calculated an advisory guideline range of 188 to 235 months of imprisonment, but determined that a variance was appropriate and sentenced Collington to 120 months, the statutory mandatory minimum for the charges he pled guilty to. The government now appeals Collington's sentence for reasonableness. Based on the following discussion, we affirm the sentence imposed by the district court.

I.

On August 10, 2004, Collington was pulled over for speeding in Canton, Ohio. As a result of the traffic stop, Collington was arrested for driving without a valid driver's license. A search of Collington's person incident to his arrest revealed fifty-three grams of crack cocaine hidden in his waistband. Officers obtained a search warrant for Collington's residence and found 200 grams of crack cocaine, a pipe bomb, ammunition, and four firearms, including a loaded machine gun.

Collington pled guilty to possession of over fifty grams of crack cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm, 18 U.S.C. § 922(g), and unlawful possession of a machine gun, 18 U.S.C. § 922(o). The plea agreement anticipated that Collington's offense level would be thirty-three and his criminal history to be a III, yielding an advisory guidelines range of 168 to 210 months. Upon review of the presentence report, the district court decided that Collington's offense level was thirty-three and his criminal history was a IV, resulting in an advisory guidelines range of 188 to 235 months.

At Collington's sentencing hearing, the district court undertook what it described as a "three-step process." The first step was to calculate the appropriate advisory guideline range, which the district court did with no objection from either side to the resulting range of 188 to 235 months. The district court then proceeded to the second and third steps of its analysis: determining whether a variance from the guidelines range would be appropriate in this case and considering the section 3553(a) factors and the guidelines range to determine what sentence would be a "reasonable sentencing option[ ] for this Defendant."

To aid the court in its decision-making process, it heard from Collington's counsel and then questioned Collington regarding his personal history and the severity of the crimes in question. The court then decided to vary downward from the sentencing guidelines and impose a 120 month sentence with the full five-year period of supervised release. The court felt that a downward variance was justified given Collington's personal history, his criminal history, and his age. The government now appeals that sentence as being unreasonably low.

II.

We review sentences for reasonableness. United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). At the outset, it is worth noting that the district court in this case and the government in its brief to this Court confused the statutory mandate with the appellate standard of review. "[A] district court's mandate is to impose `a sentence sufficient, but not greater than necessary, to comply with the purposes' of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task." United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006) (emphasis in original).

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court invalidated the mandatory use of the Sentencing Guidelines and held they are now "effectively advisory." We have held that "[o]nce the appropriate advisory Guideline range is calculated, the district court throws this ingredient into the section 3553(a) mix." United States v. McBride, 434 F.3d 470, 476 (6th Cir.2006). Section 3553(a) instructs a district court to impose "a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [section 3553(a)(2)]." 18 U.S.C. § 3553(a). The 3553(a)(2) factors which are to be considered when sentencing are the seriousness of the offense, deterrence of future crimes, protection of the public from future crimes of the defendant, and providing the defendant with needed training or correctional treatment.¹ 18 U.S.C. § 3553(a)(2).

Because the Sentencing Guidelines are now advisory, a district court is permitted to vary from those guidelines in order to impose a sentence which fits the mandate of section 3553(a). See McBride, 434 F.3d at 476. Although we have held that a sentence within the guidelines is presumptively reasonable, see United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), this says nothing about sentences outside the advisory range. As we said in Foreman, "Williams does not mean that a sentence outside of the Guidelines range — either higher or lower — is presumptively un reasonable. It is not." 436 F.3d at 644. Rather, our reasonableness review is in light of the 3553(a) factors which the district court felt justified such a variance.

We have now split our reasonableness review into two inquiries: procedural reasonableness and substantive reasonableness. A sentence may be procedurally unreasonable if "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 required consideration." Webb, 403 F.3d at 383. A sentence may be considered substantively unreasonable when the district court "select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor." Id. at 385. It is in this light that we review Collington's sentence, specifically the district court's downward variance from the advisory guidelines range.

The district court, in this case, varied downward from the guideline range of 188 to 235 months to give Collington a sentence of 120 months.² The district court explained at the sentencing hearing that such a variance was justified in this case because of a number of factors which made Collington's case an outlier and which the guidelines did not account for. The district court found that, despite Collington's criminal history being at a IV, Collington "has never been in custody for any substantial period of time," having only been imprisoned for seven months before this crime. The district court also noted that the criminal history did not reflect that this incident was the first time that this quantity of drugs and guns had been found in Collington's possession.

As we have explained before, "[p]rior to Booker, sentences outside of the Guideline range were severely limited; now, `with greater latitude' a `district court need only consider [the Guideline range] along with its analysis of the section 3553(a) factors.'" United States v. Martin, 438 F.3d 621, 641 (6th Cir.2006) (Martin, J., concurring) (quoting McBride, 434 F.3d at 476). Additionally,

[i]n appropriate cases . . . a district court may conclude that the criminal history category overstates the severity of the defendant's criminal history or that a lower sentence would still comply with and serve the mandates of section 3553(a). That is, a district court may look beneath the specific criminal history score

and advisory guideline calculation to reach the appropriate sentence. Id. at 642.

Finally, the district court noted Collington's family history, which included his father being murdered in their home when Collington was nine and losing his mother to cancer two years later. As a result, the district court ordered Collington to undergo mental health counseling. Also, the district court required that after Collington's imprisonment, he be under supervised release for five years, including aggressive drug testing during that time.

We find this sentence to be reasonable. The district court took the time to consider arguments from defense counsel, the government, and questioned Collington himself about the current charges, his history, and his desire to reform. The district court's explanation for this variance from the guideline range is a reasonable one. First, the district court felt that the Sentencing Guidelines did not accurately reflect Collington's actual criminal history. Additionally, the district court appeared to be persuaded by the fact that Collington had only previously served seven months in prison before these charges and was an ideal candidate for reform.

While the district court did not explicitly name each of the 3553(a) factors that it was using to arrive at Collington's sentence, a reasonable sentence based on consideration of the factors does not require a rote listing. United States v. Vonner, 452 F.3d 560 (6th Cir.2006) (citing United States v. Williams, 436 F.3d 706, 708-09 (6th Cir.2006) in...