U.S. v. Graham

• Citation: 327 F.3d 460
• Decision Date: 28 April 2003
• Docket Number: No. 02-1575.,02-1575.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randy GRAHAM, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 460

327 F.3d 460

UNITED STATES of America, Plaintiff-Appellee, v. Randy GRAHAM, Defendant-Appellant.

No. 02-1575.

United States Court of Appeals, Sixth Circuit.

Argued: March 26, 2003.

Decided and Filed: April 28, 2003.

Joan E. Meyer (argued and briefed), United States Attorney's Office, Grand Rapids, MI, for Plaintiff-Appellee.

Jeffrey J. O'Hara (argued and briefed), Grand Rapids, MI, for Defendant-Appellant.

Before BOGGS and MOORE, Circuit Judges; COHN, Senior District Judge.^*

MOORE, J., delivered the opinion of the court, in which BOGGS, J., joined. COHN, D.J. (p. 466), delivered a separate opinion concurring in the result.

OPINION

MOORE, Circuit Judge.

Section 5G1.2(d) of the U.S. Sentencing Guidelines requires that when the sentence imposed on the count with the greatest statutory maximum is less than the total punishment provided under the guidelines, sentences must be imposed consecutively to the extent necessary to reach the total punishment. U.S. Sentencing Guidelines Manual § 5G1.2(d). Section 5G1.2(a) provides that when a statute specifies a mandatory sentence for an offense and specifies that the sentence is to run consecutively to any other sentence, the sentence on that count is to be "imposed independently." Id. at § 5G1.2(a). The question presented in this appeal is whether a sentence that is "imposed independently" under § 5G1.2(a) counts toward the total punishment when stacking consecutive sentences under § 5G1.2(d). Because a sentence to be imposed independently does not count toward the total punishment for purposes of § 5G1.2(d), the district court correctly imposed all sentences consecutively in the present case.

This is the second time we have seen this case. See United States v. Graham, 275 F.3d 490 (6th Cir.2001), cert. denied, 535 U.S. 1026, 122 S.Ct. 1625, 152 L.Ed.2d 636 (2002). The first time we saw it, we affirmed Randy Graham's conviction and remanded for reconsideration of his sentence in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Graham now appeals his new sentence, which we AFFIRM.

I. BACKGROUND

Randy Graham was a marijuana farmer, cultivating crops of marijuana that ranged up to forty pounds per year. Graham, 275 F.3d at 497. Graham and his partner sold their harvest, and Graham, who was known to carry a firearm from time to time while tending his fields, used the proceeds of this enterprise to buy weapons for his other hobby, plotting the overthrow of the United States Government. Id. Graham was an active member of the North American Militia, a paramilitary organization that planned a "first strike" in which they would attack and destroy various transportation, communication, and energy sources, kill certain federal officials, and "hold on" for a number of days while other militias took the rest of the country. Id. at 497-98. The militia had stockpiled various assault rifles, explosive materials, and body armor for their attack. Id. at 498-99.

Along with other members of the North American Militia, Graham was arrested, and he was ultimately convicted on six counts. The counts included a conspiracy to commit offenses against the United States in violation of 18 U.S.C. § 371 (Count 1); being an unlawful user of marijuana in possession of firearms in violation of 18 U.S.C. § 922(g)(3) (Count 9); an unlawful attempt to manufacture marijuana in violation of 21 U.S.C. § 841(a)(1) (Count 10); a conspiracy to manufacture marijuana in violation of 21 U.S.C. § 846 and § 841(a)(1) (Count 11); carrying a semi-automatic assault weapon during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1) (Count 13); and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count 14). At sentencing, the district court made clear that it considered Graham "a dangerous man, capable of killing people." J.A. at 229. "You are a scary guy," the district court stated, "and the guys you hang around with are scary and your interpretation of the Constitution is scarier yet." J.A. at 237.

The court sentenced Graham to fifty-five years, a punishment it called "a long sentence" but one that "may reflect the crime's seriousness." J.A. at 233. The court calculated Graham's sentence as follows: including a terrorism-related enhancement pursuant to § 3A1.4(a) of the U.S. Sentencing Guidelines, Graham was deemed to have committed a Level 41 offense with a Level VI Criminal History; under § 5A, these levels produced a guideline range of 360 months to life.

The district court then applied § 5G1.2, which governs sentences involving convictions on multiple counts. Two provisions were especially relevant. First, § 5G1.2(a) provides that, except for an exception not relevant here, if the statute that governs sentences for a particular crime of conviction identifies a specific sentence and requires that the sentence for that offense run consecutively with any other sentence, then the court should impose the sentence for that sentence as the statute requires. See U.S. Sentencing Guidelines' Manual ("U.S.S.G.") § 5G1.2(a). This affected Graham's sentences on Counts 13 and 14, because 18 U.S.C. § 924(c)(1) provides that Graham's convictions for carrying a firearm during and in relation to his violent crime and his drug crime carry mandatory consecutive sentences of twenty years and five years, respectively.

Second, § 5G1.2(d) provides that when the sentence for the count with the highest statutory maximum is less than the total punishment, then sentences shall run consecutively, but only to the extent necessary to produce a combined sentence that equals the total punishment. U.S.S.G. § 5G1.2(d). Once the combined sentences reach the total punishment, however, then sentences are to run concurrently. Id. This principle affected Graham's sentences on Counts 1, 9, 10, and 11. Counts 10 and 11, which involved Graham's unlawful attempt to manufacture marijuana and his conspiracy to manufacture marijuana, respectively, each had a statutory maximum of five to forty years. See 18 U.S.C. § 841(b). Having determined that Graham was responsible for over one hundred marijuana plants, the court sentenced Graham to thirty years on each of those counts. The district court also sentenced Graham to the maximum five years on Count 1, involving the conspiracy to commit offenses against the United States, and the maximum ten years on Count 9, for being an unlawful user of marijuana in possession of firearms. Applying § 5G1.2(d), the district court determined that the sentence on the charge involving the greatest statutory maximum, the thirty-year sentence imposed on Counts 10 and 11, equaled the total punishment of 360 months, and the court imposed the sentences on Counts 10 and 11 to run concurrently with each other and with Counts 1 and 9. The district court added the mandatory twenty-year and five-year sentences on Counts 13 and 14 for a total of fifty-five years, and Graham appealed.

In a decision issued on December 17, 2001, we affirmed in all respects, including the application of the terrorism enhancement of § 3A1.4(a), except for the ultimate calculation of the sentence. Because the quantity of marijuana involved in Counts 10 and 11 increased the sentence beyond the statutory maximum and had not been found beyond a reasonable doubt, we held that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which was decided after the sentence had been issued, required resentencing. The finding that Graham was responsible for one hundred marijuana plants had neither been alleged in the indictment nor found beyond a reasonable doubt, but because it increased his maximum penalty from five to forty years, compare 21 U.S.C. § 841(b)(1)(B)(vii), with id. § 841(b)(1)(D), his sentence violated Apprendi. See Graham, 275 F.3d at 521. This constituted plain error, affecting Graham's substantial rights by increasing his total sentence beyond the maximum permitted under the statute. Adding the statutory maximums of five years for Count 1, ten years for Count 9, five years for Count 10, five years for Count 11, twenty years for Count 13, and five years for Count 14, we noted that "[t]he combined maximum prison sentences of all counts of conviction if served consecutively would be fifty years. Because Graham's [fifty-five-year] sentence exceeded this limit, the plain error test ha[d] been satisfied," and we remanded for resentencing. Id. at 524.

On remand, the district court simply followed the logic we laid out in the passage quoted above and imposed a fifty-year sentence. In resentencing Graham, the district court stated, "The guideline scoring except as to Counts 10 and 11 should not, as I read the opinion, be changed." J.A. at 247. Accordingly, the court imposed "identical sentences with the exception that the terms for Counts 10 and 11 shall each be reduced to 60 months, and the sentences on all counts shall run consecutive in order to conform to the guideline purposes of fully punishing criminal conduct calculated under the guidelines and consistent with the Court of Appeals' analysis." J.A. at 248-49. The district court referred to § 5G1.2 of the Guidelines and the language from this court's decision that is cited above.

Graham appeals, arguing that he should have been given a thirty-five year sentence. He argues that after imposing the mandatory sentences on Counts 13 and 14, which added to twenty-five years, § 5G1.2 of the Guidelines required the district court to impose all remaining sentences to run concurrently with each other. On Graham's theory, those sentences would have been subsumed under the ten-year sentence on Count 9, which when added to the mandatory sentences on Counts 13 and 14 would result in a total sentence of thirty-five years. We review de novo pure questions of law regarding sentencing, United States v. Canestraro, 282 F.3d 427, 431 (6th Cir.2002), and the...