U.S. v. Franklin

• Decision Date: 28 August 2007
• Docket Number: No. 05-2680.,No. 05-2693.,No. 05-2539.,05-2539.,05-2680.,05-2693.
• Citation: 499 F.3d 578
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Marcus FRANKLIN, Defendant-Appellant/Cross-Appellee. United States of America, Plaintiff-Appellant, v. Jamaal Clarke, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

499 F.3d 578

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Marcus FRANKLIN, Defendant-Appellant/Cross-Appellee.

United States of America, Plaintiff-Appellant, v. Jamaal Clarke, Defendant-Appellee.

No. 05-2539.

No. 05-2680.

No. 05-2693.

United States Court of Appeals, Sixth Circuit.

Argued: July 18, 2007.

Decided and Filed: August 28, 2007.

ARGUED: Sarah Resnick Cohen, United States Attorney, Detroit, Michigan, for Plaintiff. Douglas R. Mullkoff, Ann Arbor, Michigan, Robert M. Jensen, Laufman, Jensen & Napolitano, Cincinnati, Ohio, for Defendants. ON BRIEF: Sarah Resnick Cohen, United States Attorney, Detroit, Michigan, for Plaintiff. Douglas R. Mullkoff, Ann Arbor, Michigan, Robert M. Jensen, Laufman, Jensen & Napolitano, Cincinnati, Ohio, for Defendants.

Before: MOORE and GILMAN, Circuit Judges; FORESTER, District Judge.^*

FORESTER, D. J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. ___-___), delivered a separate opinion concurring in the judgment.

OPINION

KARL S. FORESTER, District Judge.

Marcus Franklin ("Franklin") and Jamaal Clarke ("Clarke") were convicted of various bank robbery charges in 2003. We affirmed their convictions in United States v. Franklin, 415 F.3d 537 (6th Cir. 2005), but remanded for re-sentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Following re-sentencing, Franklin again appealed, arguing that his re-sentencing violated his Sixth Amendment right to fact finding by a jury. We disagree based on Sixth Circuit precedents. The United States has appealed the re-sentencings of both Franklin and Clarke, arguing that the new sentences are unreasonable on two grounds. First, the United States claims that the district court improperly considered the impact of a mandatory, consecutive sentence when determining the reasonableness of the sentences under Booker. Second, it claims that the district court imposed substantively unreasonable sentences based upon its misinterpretation of this Court's prior opinion in the case. We agree with the United States, VACATE the sentences, and REMAND for re-sentencing.

I. BACKGROUND

For one year, Franklin was an employee of Guardian Armored Services, which operated ATM machines and armored trucks in Detroit, Michigan. He left to enter the Detroit Police Academy. While with the Academy, he enlisted the help of other Guardian employees to rob two ATM machines and attempted to rob a third one. While with the Detroit Police Department, Franklin joined with Clarke to rob a Guardian armored truck at gunpoint and take away $754,968. During the robbery, Franklin pointed a gun at the driver's head, Clarke hit the driver over the head with a gun, and they both locked the driver in the cage area of the truck. Franklin, 415 F.3d at 541-542.

Following a ten-day trial, a jury convicted Franklin of attempted bank larceny, two counts of bank larceny, conspiracy to commit bank robbery, bank robbery, and brandishing a firearm during and in relation to a crime of violence. In the same trial, the jury convicted Clarke of conspiracy to commit bank robbery, bank robbery, and brandishing a firearm during and in relation to a crime of violence. At the first sentencing, the court calculated Franklin's guideline range at 97 to 121 months and Clarke's range at 70 to 87 months. The court sentenced Franklin to 97 months, plus a mandatory consecutive 84-month sentence, and Clarke to 70 months, plus a mandatory consecutive 84-month sentence.

On appeal, Franklin and Clarke challenged the upward adjustments to their sentences under the Guidelines. This court affirmed their convictions, but remanded the cases for re-sentencing under Booker. Franklin, 415 F.3d at 537. In remanding, the opinion specifically identified and criticized the enhancements applied to determine the guideline ranges for Franklin and Clarke. Regarding Franklin's enhancements, the opinion said:

The upward adjustments were plainly erroneous under United States v. Oliver, 397 F.3d 369 (6th Cir. 2005). Solely on the basis of its own fact-finding, the district court added 2 points for physically restraining a victim during the armed robbery, 2 points for being an organizer or leader, and 3 points for causing a loss in excess of $250,000. Having applied these adjustments, the district court concluded it was required to sentence Franklin to at least 97 months. But the maximum offense level authorized by the jury's verdict is 26, which, because of Franklin's criminal history category of I, would support a sentence of no more than 78 months.... In any event, even if we did not think the upward adjustments conflicted with the Sixth Amendment as interpreted in Booker, we would still be required to remand Franklin's case for re-sentencing under United States v. Barnett, 398 F.3d 516 (6th Cir. 2005).

Id. at 557-558. Similarly, the opinion identified the enhancements for Clarke and said:

Consequently, Clarke's final offense level was 27, which placed him in a sentencing range of 70 to 87 months since his criminal history category was I. The district court sentenced him to 70 months, the minimum under the range, to precede the mandatory 7 year sentence for this conviction under 18 U.S.C. § 924(c)(1)(A)(ii). Without the upward adjustments, which were based solely on judge-found facts and which resulted in a sentencing range the judge thought was required, Clarke's sentencing range would have been 41 to 51 months.

Id. The opinion concluded: "Clarke is entitled to re-sentencing for the same reasons that Franklin is." Id.

Following remand, Franklin and Clarke were scheduled to be re-sentenced on September 21, 2005. At that hearing, the district court said it intended to strike all enhancements, except the enhancement for theft of property belonging to a financial institution, because it understood under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that the facts supporting the enhancements must be proven and found beyond a reasonable doubt by a jury. J.A. at 268-270.

When the government objected, the court said: "You would agree, however, that the Court of Appeals has directed me not to include those items that you are addressing, that is the enhancements." J.A. at 272. When the government said that the first step in a post-Booker analysis is to calculate the Guidelines under a preponderance of the evidence standard, and then determine whether that range is appropriate, the court said: "I don't disagree with you that that's the way it should be. I just have a problem with this opinion." J.A. at 273. "So it's telling me that they thought the upward adjustments did in fact conflict with the Sixth Amendment, as interpreted in Booker." J.A. at 274. The court continued: "And I do think that the Sixth Circuit in this particular case sent it back to me with the idea that I ... probably should not use these enhancements unless they've been found beyond a reasonable doubt. That is the direct implication I get from the reading of this case." J.A. at 279. The court further said: "I'm going to tell you that I will consider the lower 51 to 63 guidelines because of the mandatory seven years." J.A. at 280. The government requested an adjournment to allow time to brief the issues, and Franklin's re-sentencing was rescheduled for October 26, 2005. Because Clarke's counsel had a conflict, Clarke's re-sentencing was rescheduled for Monday, October 31.

At Franklin's second re-sentencing hearing, the district court calculated the guideline range as it had previously, resulting in a range of 97 to 121 months. J.A. at 302. The court considered defense counsel's request for a downward variance because Franklin was a police officer, which might cause problems in prison, and because of his alleged rehabilitation while in prison. The court noted that the fact he was a police officer could support an upward variance. The court also said his rehabilitation in prison is what the court expects, and that it was not a basis for a downward variance. J.A. at 303. After reviewing the § 3553(a) factors, the court said:

The Court is going to grant a downward departure, not because of the reasons that you have given me, because I don't believe in those reasons. But I'm going to grant a downward departure to some extent because I feel that adding on a mandatory seven years truly inflates the sentence that would adequately serve the social purpose, and therefore I am going to reduce it to a sentence which I think is sufficient but not greater than necessary to achieve the broad social, societal purposes that we have as we've gone over in sentencing.

J.A. at 306. The court then sentenced Franklin to 63 months, based on a four-level decrease, and said: "I note the Court of Appeals had come up with a 26, and when I was looking at the amount of time, I thought it was appropriate. I thought this coincidentally had coincided with that and that would be sufficient to use those numbers." J.A. at 306-307. The 84-month sentence was imposed consecutively.

At Clarke's second re-sentencing hearing a few days later, the court arrived at an offense level of 27 and criminal history of I, for a guideline range of 70 to 87 months. J.A. at 324. In considering the statutory factors, the district court noted that the offense "is a very serious crime. It's particularly serious because in this case, Mr. Clarke, you assaulted somebody and an individual was put in harm's way and he now has to live with that for the rest of his life." Id. The court noted that Clarke had "a wonderful background," but also noted that "[t]his was a planned crime." J.A. at 325. The court said it was not using Clarke's success in prison programs to decrease his sentence "because I expect people who go to prison to do well." Id. Regarding the seriousness of the offense, the court said "this...