U.S. v. Cook, 05-2203.
Decision Date | 20 July 2006 |
Docket Number | No. 05-2203.,05-2203. |
Citation | 453 F.3d 775 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larone COOK, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Robert J. Dunn, Bay City, Michigan, for Appellant. Robert Cares, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Robert J. Dunn, Bay City, Michigan, for Appellant. Robert Cares, Assistant United States Attorney, Detroit, Michigan, for Appellee.
Before: DAUGHTREY and COOK, Circuit Judges; CARR, Chief District Judge.*
This is a sentencing appeal. Larone Cook was convicted of civil rights, racketeering, and drug violations in 2001. He appealed and the Sixth Circuit remanded his case for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
On remand, Cook contends that the District Court made errors similar to the ones it made at his first sentencing.
For the following reasons, Cook's sentence shall be AFFIRMED.
On April 27, 2001, Larone Cook, a former Detroit police officer, was convicted on charges of civil rights conspiracy, drug conspiracy, RICO violations, RICO conspiracy, and extortion conspiracy.
At Cook's sentencing, the District Court analyzed the evidence presented at trial as well as other evidence provided specifically for sentencing purposes. Using facts gleaned from the record, but not found by a jury or admitted by the defendant, it calculated a guideline range of 168-210 months and imposed a term of incarceration of 175 months.
Cook appealed. While his case was pending, the Supreme Court delivered its opinion in Booker. The Sixth Circuit affirmed his conviction, but remanded for resentencing in light of Booker.
At resentencing, the District Court made similar findings of fact as it had at the first sentencing and calculated his guidelines range the same way. The Court specifically stated the calculations themselves, were correct. The Court, however, imposed a lighter sentence of 151 months, to take account of Cook's family's medical circumstances.
At his resentencing, Cook contends the District Court improperly calculated his guideline range on the basis of facts other than those rendered in the verdict or which he had specifically admitted. His claim is without merit.
Cook's argument overstates the result in and the reach of Booker. It is true that, in sentencing, a court may not rely on facts other than those rendered in the verdict or which the defendant has specifically admitted to impose a mandatory enhancement. Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005) ( ). But that ruling has no bearing on advisory guideline calculations.
Because the guidelines are now advisory and not mandatory, a District Court may rely on extra-verdict facts or on those other than which the defendant has specifically admitted when it calculates his sentence. United States v. Stone, 432 F.3d 651, 654-55 (6th Cir.2005) .
District courts are obligated only to consider the guidelines range among other factors when making a final determination. Id. at 655 ( ). See United States v. Nguyen, 2006 WL 988272, *3 (6th Cir.2006) (); United States v. Green 2006 WL 1307999, *5 (6th. Cir.2006)("Since Booker, this court has consistently turned aside constitutional challenges to sentences premised on preponderance of the evidence judicial factfinding.").
Other circuits have treated judicial fact-finding as acceptable when used in conjunction with non-mandatory sentencing guidelines. United States v. Yeje-Cabrera, 430 F.3d 1, 17 (1st Cir.2005); United States v. Vaughn, 430 F.3d 518, 521 (2d Cir.2005); United States v. Cooper, 437 F.3d 324, 330 (3d Cir.2006); United States v. Sander, 2006 WL 1114038, at *1 (4th Cir.); United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005); ...
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