U.S. v. Davis

• Decision Date: 15 August 2006
• Docket Number: No. 05-6259.,05-6259.
• Citation: U.S. v. Davis, 458 F.3d 505 (6th Cir. 2006)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lonnie DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

458 F.3d 505

UNITED STATES of America, Plaintiff-Appellee, v.Lonnie DAVIS, Defendant-Appellant.

No. 05-6259.

United States Court of Appeals, Sixth Circuit.

Submitted: August 9, 2006.

Decided and Filed: August 15, 2006.

ON BRIEF:

April R. Goode, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant.Camille R. McMullen, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: MOORE and SUTTON, Circuit Judges; KATZ, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-AppellantLonnie Davis appeals his sentence for escaping from a community corrections center in violation of 18 U.S.C. § 751(a).Davis asserts that the district court erred by applying a reasonableness standard in determining his sentence rather than "impos[ing] a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [18 U.S.C. § 3553(a)(2)]" as prescribed by 18 U.S.C. § 3553(a).Davis also argues that in imposing his thirty-seven-month sentence, the lowest within the recommended U.S. Sentencing Guidelines ("U.S.S.G." or "Guidelines") range, the district court did not adequately consider "the nature and circumstances of the offense"— namely, its nonviolent character—under § 3553(a)(1).Because no specific magic words are necessary to render a sentence reasonable, and the district court imposed a reasonable sentence after thorough consideration of the § 3553(a) factors as required following United States v. Booker,543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), weAFFIRM Davis's sentence.

I.BACKGROUND

On May 28, 1993, Davis was sentenced to a 151-month prison term for bank robbery in violation of 18 U.S.C. § 2113.Joint Appendix ("J.A.")at 35(Presentence Investigation Report ("PSR")¶ 4).On April 30, 2004, Davis was transferred from the Federal Bureau of Prisons to Dismas Charities Community Corrections Center ("DCCCC") in Memphis, Tennessee.J.A.at 35(PSR ¶ 5).Despite his October 26, 2004 release date, Davis left DCCCC without authority on May 10, 2004.Id.The United States Marshals Service arrested Davis on May 21, 2004.J.A.at 35(PSR ¶ 6).

Davis pleaded guilty to one count of escape under 18 U.S.C. § 751(a).J.A.at 35(PSR ¶ 3).The PSR, relying on the 2004 Guidelines, noted a base offense level of thirteen under U.S.S.G. § 2P1.1(a)(1).J.A.at 36(PSR ¶ 11).This was decreased four levels pursuant to § 2P1.1(b)(3) because Davis "escaped from non-secure custody of a community corrections center."J.A.at 36(PSR ¶ 12).Because (1) Davis was over eighteen at the time of his escape, (2)the district court considered escape in violation of 18 U.S.C. § 751(a) to be a crime of violence,¹ and (3) Davis had three prior robbery felony convictions, Davis was sentenced as a career offender under § 4B1.1(b)(F), which raised his offense level to seventeen.²J.A.at 37(PSR ¶ 19).Davis's offense level was reduced by three levels for acceptance of responsibility under § 3E1.1, resulting in a final offense-level calculation of fourteen.J.A.at 37(PSR ¶¶ 20-21).

Davis objected to the recommended sentence because he believed that he should receive a below-Guidelines sentence on the basis of a non-Guidelines departure (i.e., variance) due to the nonviolent nature of his offense under 18 U.S.C. § 3553(a).J.A.at 24-26(Sentencing Tr.at 9-11).Specifically, Davis requested that the court exercise its discretion and not subject his sentence to the career-offender enhancement because, although the district court treated his escape as a crime of violence under the Guidelines, Davis's escape was nonviolent.J.A.at 24-26(Sentencing Tr.at 9-11).

The district court sentenced Davis to thirty-seven months of imprisonment, the lowest sentence within the recommended Guidelines range, followed by two years of supervised release.J.A.at 30(Sentencing Tr.at 20).The court explained:

So, is a Guideline sentence reasonable in this case?Is a non Guideline sentence reasonable?If so, what would a reasonable non Guideline sentence be?I've said what the Guideline sentence is for incarceration purposes, 37 to 46 months.For supervised release purposes, 2 to 5 years.What's the nature of this offense?The defendant is in the position where he has served a considerable period of time.A considerable period of time.He had a significant prior offense.He has a long criminal history, much of it minor, but some of it is significant.

In any event, he served his time of incarceration and he had been placed in a community placement.Originally sentenced to 151 months for bank robbery in 1993.In 2004he went to Dismas Charities Community Correction Center.That was on April the 30th.He was going to be released on October 26th of 2004.And on May 10, after he had been there a little over a week, he left, or escaped, as the report says in paragraph five, page three.Picked up his belongings and left at 10:40 a.m. Eleven days later on May 21, got picked up by the Marshal's Service in Nashville where he was with his money and his papers.Why he did that is unfathomable to me.But given his record and what he was in for originally, I don't have any problem at all with his being classified as a career offender.And I'm confident of my legal ruling on it.That's the way it is.But the question is, is that reasonable.I believe it is reasonable given the circumstances under which the defendant was serving.In looking over his criminal history, which is set out at length in the Presentence Report, particularly the fact that he had been sentenced for bank robbery.

What about the seriousness of the offense?The offense is not as serious as some offenses that one might see.But to escape from custody in that circumstance is still serious.He didn't escape violently.He didn't escape from a correctional institution, which is why his offense level is where it is.If he had escaped violently or if he had escaped from a correctional institution, he would have a much higher offense level.So that's already taken account of in the Guideline calculation.But the need to promote respect for the law here is great.One simply can't have people who decide on their own that they are going to ignore court orders and walk off from institutions to which they have been committed.

Is a Guideline range a just punishment?It seems to me it is.It seems to me that it affords adequate deterrence.

What about protecting the public from further crimes of this defendant?The defendant, one would have thought, after having been sentenced to a hundred and fifty one months, I believe it was, would have thought at some length — perhaps he did — before he simply walked off from the institution where he was confined.

Is this defendant likely to — is his offense conduct likely to recur, is there going to recidivism here?The criminal history suggests that there would be.The defendant's approach to today suggest[s] that there would be.The defendant's attitude is that he hasn't done anything very serious, all he did was, you know, violate the law, walk off and fail to complete his sentence.I consider that very serious.And I see nothing in this record that suggests to me that on release, the defendant would do anything other than what he has already done.

As far as sentencing disparities, I believe following the Guidelines in this case would be the best way to avoid unwarranted sentencing disparities.And there is no restitution issue here that I'm aware of.

So for all those reasons, I believe a Guideline sentence [in]this case is reasonable, and that's what I intend to impose.I do agree, however, with [Davis's counsel] and with the government that a low range sentence is appropriate in this case, because the defendant at one time, at least, acknowledged his guilt and entered a plea and accepted responsibility for his conduct.So he got a two level reduction for full acceptance and he got a three level — he is about to get a three level reduction if the government makes the motion....And I think it is also worth considering in acceptance of responsibility going to the low end of the Guideline Range, which is 37 months.

J.A.at 26-30(Sentencing Tr.at 16-20).

Davis then filed this timely appeal.

II.THE DISTRICT COURT'S REFERENCE TO REASONABLENESS

Davis argues that the district court erred in its sentencing procedure by applying a reasonableness standard rather than a sufficient-but-not-greater-than-necessary standard under § 3553(a).The record indicates that the district judge may have thought his obligation was to impose a reasonable sentence.For example, the district judge ponders: "So, is a Guideline sentence reasonable in this case?Is a non Guideline sentence reasonable?If so, what would a reasonable non Guideline sentence be?"J.A.at 26(Sentencing Tr.at 16).He also asks, "But the question is, is that reasonable.I believe it is reasonable given the circumstances under which the defendant was serving."J.A.at 27(Sentencing Tr.at 17).Finally, he concludes that "for all those reasons, I believe a Guideline sentence [in]this case is reasonable, and that's what I intend to impose."J.A.at 29(Sentencing Tr.at 19).

We have made clear

that a district court's job is not to impose a "reasonable" sentence.Rather, 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);accordUnited States v. Yopp,453 F.3d 770, 774(6th Cir.2006);United States v. Vonner,452 F.3d 560, 565 n. 2(6th Cir.2006).Therefore, at points during the sentencing the district court stated the wrong standard to describe the task before it — "impos[ing] a sentence sufficient but not greater...