U.S. v. Jones

• Decision Date: 17 April 2006
• Docket Number: No. 05-5657.,05-5657.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne Morgan JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

445 F.3d 865

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Morgan JONES, Defendant-Appellant.

No. 05-5657.

United States Court of Appeals, Sixth Circuit.

Submitted: January 25, 2006.

Decided and Filed: April 17, 2006.

ON BRIEF: Adele Burt Brown, Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., Assistant United States Attorney, Lexington, Kentucky, for Appellee.

Before: MOORE and McKEAGUE, Circuit Judges; POLSTER, District Judge.^*

POLSTER, D. J., delivered the opinion of the court, in which McKEAGUE, J., joined.

MOORE, J. (pp. 871-874), delivered a separate dissenting opinion.

OPINION

POLSTER, District Judge.

Defendant-Appellant Wayne Morgan Jones ("Jones") was sentenced to twelve months of imprisonment for defrauding and attempting to defraud a financial institution in violation of 18 U.S.C. § 1344(1) and using another person's identity to commit this fraud in violation of 18 U.S.C. §§ 1028(a)(7) and (2). Jones appeals this sentence, arguing that the district court should have reduced his sentence pursuant to U.S. Sentencing Guidelines ("U.S.S.G") § 5K2.23 because he had already served a one-year state sentence for the same conduct. For the reasons stated below, we AFFIRM Jones' sentence.

I.

On November 12, 2002, Jones fraudulently assumed the identity, including the date of birth and social security number, of Orville Wayne Hudson, to secure a $21,995 loan from Bank of America to purchase a recreational vehicle. On June 2, 2003, Jones traded in the vehicle at a dealership, using the proceeds to purchase another motor vehicle. To finance the purchase of the second motor vehicle, Jones again assumed the identity of Orville Wayne Hudson to secure a second loan from Bank of America.¹

On December 10, 2003, Jones was sentenced for receiving stolen property in a Kentucky state court based on his illegally obtaining and possessing the second motor vehicle. Jones served 365 days in prison for this offense and was released from state custody on August 27, 2004.

On December 14, 2004, Jones was arrested on federal charges of bank fraud and identity theft based on his use of Orville Wayne Hudson's identity to finance the purchase of the two motor vehicles. Jones pled guilty to the charges without a written plea agreement. The presentence investigation report indicated that a § 5K2.23 downward departure² might be appropriate given that Jones had already served a state sentence for relevant conduct. At the sentencing hearing, Jones did not specifically request a downward departure pursuant to § 5K2.23. He did, however, request probation rather than a custodial sentence because, among other reasons, he had already served twelve months in state prison for the same conduct. The district court denied this request and sentenced Jones to twelve months of imprisonment, the high end of the 6-12 month advisory Guidelines range for offense level 10, Criminal History Category I.

II.

Jones argues that the trial court erred in failing to give him a below-Guidelines sentence under U.S.S.G. § 5K2.23 because of the one year he had already served in state prison for the same conduct. At the sentencing hearing, Jones' attorney did not specifically reference § 5K2.23 in his remarks to the district court, or specifically request a downward departure, but he did request a sentence of probation. Jones argues that his request for probation "would have required a downward departure because [Jones] was not eligible for probation according [to] the [G]uideline calculation."³ Appellant's Br. at 4.

Section 5K2.23 provides as follows:

A downward departure may be appropriate if the defendant (1) has completed serving a term of imprisonment; and (2) subsection (b) of § 5G1.3 (Imposition of a Sentence on a Defendant Subject to Undischarged Term of Imprisonment) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. Any such departure should be fashioned to achieve a reasonable punishment for the instant offense.

U.S.S.G. § 5G1.3(b) authorizes an adjustment in a defendant's sentence and the concurrent running of sentences where the defendant is currently serving a sentence that "resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments)."⁴

Prior to the U.S. Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it was well-established in this Circuit that a district court's decision to deny a request for a downward departure was not reviewable unless the district court judge "incorrectly believed that [he] lacked any authority to consider defendant's mitigating circumstances as well as the discretion to deviate from the guidelines." United States v. Clark, 385 F.3d 609, 623 (6th Cir.2004) (quoting United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994)); United States v. Stewart, 306 F.3d 295, 329 (6th Cir.2002). In United States v. Puckett, 422 F.3d 340, 344-45 (6th Cir.2005), this Court held that the pre-Booker standard foreclosing review of a district court's decision not to depart downward "unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure" survived Booker. Id. at 344 (citing Stewart, 306 F.3d at 329). The Court concluded that it did not have authority to review the district court's decision not to depart downward and affirmed the defendant's sentence. Id. at 346.

In United States v. McBride, 434 F.3d 470 (6th Cir.2006), this Court addressed the potential tension between Booker and Puckett and clarified the scope of our review of sentences post-Booker in light of Booker's mandate to review a district court's sentence for reasonableness. The Court limited the holding in Puckett to preclude the review of that narrow determination to deny a Guidelines-based departure within the context of the advisory Guidelines calculation. Since under Booker this would merely be one factor to be considered when imposing a sentence, McBride, 434 F.3d at 474 n. 1, 476, the Court held that Puckett did not alter our ability to review the overall reasonableness of a district court's sentence, and attributed the absence of this review in Puckett to the majority's belief that the defendant did not properly argue for reasonableness review on appeal. Id. at 474-75, 476 n. 4; see id. at 476-77 ("[Puckett] does not prevent our review of a defendant's claim that his sentence is excessive based on the district court's unreasonable analysis of the [18 U.S.C. §] 3553(a) factors in their totality.").

III.

We now review Jones' sentence for reasonableness. The district court must articulate the reasons for the particular sentence imposed in order to enable this Court to engage in a meaningful reasonableness review of the sentence. United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005) (finding reasonableness review impossible where the district court provided a list of characteristics of the defendant that it considered at sentencing, without any accompanying analysis, and did not reference the applicable Guidelines provisions); see also United States v. James Williams, 432 F.3d 621, 623-24 (6th Cir. 2005) (affirming the district court's decision to depart downward where the district court, in following the framework established in Jackson, considered the applicable Guidelines range and provided a detailed analysis in support of its decision to depart). This Court has determined that a reasonableness review contains both substantive and procedural components. McBride, 434 F.3d at 475 n. 3 (citing United States v. Webb, 403 F.3d 373, 383-85 (6th Cir.2005)). We must consider, therefore, the length of the sentence as well as "the factors evaluated and the procedures employed by the district court in reaching its sentencing determination." Webb, 403 F.3d at 383.

In determining the sentence to be imposed, the district court must consider the advisory Guidelines range and all relevant factors identified in 18 U.S.C. § 3553(a). Jackson, 408 F.3d at 305; McBride, 434 F.3d at 476. This Court recently held that sentences properly calculated under the advisory Guidelines are accorded a rebuttable presumption of reasonableness. United States v. Leonard Williams, 436 F.3d 706, 708 (6th Cir.2006). Here, the district court properly calculated and considered the appropriate Guidelines range. We must, however, review under the reasonableness standard the district court's consideration and analysis of the factors listed in § 3553(a). McBride, 434 F.3d at 476-77.

Jones argues that his sentence is unreasonable because the district court failed to consider the policy statement set forth in U.S.S.G. § 5K2.23 which authorizes courts to depart downward if the defendant has already served a term of imprisonment for relevant conduct. This Guidelines provision is a pertinent factor under § 3553(a)(5) which requires the district court to consider any relevant policy statements in determining the sentence to be imposed.⁵ Although the district judge did not explicitly refer to § 5K2.23 in his sentencing determination, he stated on the record that he considered the sentencing objectives set forth in § 3553 and determined that the sentence imposed would meet those objectives. J.A. at 27 (Tr. of Sentencing Hr'g at 7).

The district court need not explicitly reference each of the § 3553(a) factors in its sentencing determination. McBride, 434 F.3d at 475 n. 3; Leonard Williams, 436 F.3d at 708. However, there must be "sufficient evidence in the record to affirmatively demonstrate the court's consideration of [these factors]." McBride, 434 F.3d at 475 n. 3. Here, the district court...