U.S. v. Liou

• Decision Date: 20 July 2007
• Docket Number: No. 06-4405.,06-4405.
• Citation: 491 F.3d 334
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ming LIOU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

491 F.3d 334

UNITED STATES of America, Plaintiff-Appellee, v. Ming LIOU, Defendant-Appellant.

No. 06-4405.

United States Court of Appeals, Sixth Circuit.

Submitted: July 18, 2007.

Decided and Filed: July 20, 2007.

ON BRIEF: Richard A. Cline, Richard Cline & Co., LLC, Columbus, Ohio, David C. Young, Sunbury & Young, Columbus, Ohio, for Appellant. Douglas W. Squires, United States Attorney, Columbus, Ohio, for Appellee.

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

OPINION

KAREN NELSON MOORE, Circuit Judge.

Ming Liou appeals the twelve-month sentence imposed after he pleaded guilty to a single count of bribing a public official, in violation of 18 U.S.C. § 201(b)(1)(A). In light of the United States Supreme Court's recent decision in Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), we AFFIRM the district court's sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

Liou was the owner and operator of Beta Electronics, Inc. ("Beta"). Beta sold electronics, (primarily, laser pointers and USB fast drives), and Liou operated the company from his home. The IRS assigned Agent Beth Cox to audit Beta's 2003 income tax return, as well as the 2003 personal income tax return of Liou and his wife.

On July 11, 2005, during a meeting with Cox, Liou offered her a designer handbag as a gift, claiming it was worth $400. Cox declined. In the same meeting, Liou divulged that he would have to pay his accountant $5000 to handle the audit, but said that he would rather pay the $5000 to Cox if she would expedite the audit and "not be too hard on him." Joint Appendix ("J.A.") at 77 (Plea Hr'g Tr. at 20). Cox did not accept or reject the offer. After the meeting, however, she did relay this conversation to her superiors.

The following day, Cox made an electronically monitored telephone call to Liou to schedule their next meeting. Liou referred to the $5000 offer and asked Cox to let him know whether she was willing to accept it. On July 25, 2005, Cox made another electronically monitored phone call to confirm with Liou that they would meet the next day. During this conversation, Liou stated, "You know the one thing you say you would get back to me, I have it prepared." J.A. at 77 (Plea Hr'g Tr. at 20). Cox understood that Liou was referring to the $5000.

On July 26, 2005, Cox wore a wire to her meeting with Liou at his home, which was also his place of business. Liou gave Cox the $5000 in cash and the designer purse. He asked that she terminate the audit quickly and favorably to him, that she not let anyone else know that she had given him a break, and that she not deposit the cash in the bank.

On June 26, 2006, the government filed an Information charging Liou with one count of bribing a public official in violation of 18 U.S.C. § 201(b)(1)(A). On July 13, 2006, Liou pleaded guilty.

A U.S. Probation Officer prepared a Presentence Investigation Report ("PSR") for Liou. The PSR revealed that Liou was fifty years old, had no prior criminal history, and was the sole source of support for his wife and twenty-one-year-old son. The PSR calculated Liou's total offense level to be 12, and his criminal history to be category I; the Guidelines called for a sentence of ten to sixteen months. On October 5, 2006, Liou filed a Sentencing Memorandum. Liou objected to the PSR, arguing that his offense was the result of aberrant behavior, and accordingly he should receive a downward departure under Guideline § 5K2.20. Separately from this objection, Liou argued that home confinement would be a "reasonable sentence" to accomplish the sentencing goals listed at 18 U.S.C. § 3553(a). In support of this argument, Liou noted, among other things, that (1) if he were to go to prison, his business would fail, and (2) his wife was completely dependent upon him, could not speak English, and would have to return to Taiwan. These problems were exacerbated by his son Alan's young age and history of mental disorders, which prevented Alan from caring for his mother or the business in Liou's absence.

The district court held a sentencing hearing on October 12, 2006, and rejected Liou's request for a downward departure based on aberrant behavior. Additionally, after listing the § 3553(a) sentencing factors, the district court concluded that the most important factors were "the need for the sentence to reflect the seriousness of the offense and to promote respect for the law." J.A. at 90 (Sentencing Hr'g Tr. at 8). The district court concluded that the sentence must "be sufficient to deter other individuals who may be similarly situated," J.A. at 91 (Sentencing Hr'g Tr. at 9), and more specifically that such a sentence must "include[] a significant term of incarceration," J.A. at 92 (Sentencing Hr'g Tr. at 10). Consequently, the district court sentenced Liou to twelve months and one day of incarceration.¹ Noting Liou's family and business obligations, the district court permitted him to self-report within sixty days of the sentencing hearing.

Liou timely filed a notice of appeal on October 19, 2006.

II. ANALYSIS

On appeal, Liou argues that the district court erred by (1) failing to discuss explicitly his familial circumstances, and (2) imposing a sentence that included jail time. (Liou concedes that the district court aptly addressed his request for a downward departure under Guideline § 5K2.20, and does not appeal the district court's rejection of this request.) Liou requests that the district court's sentence be vacated and that he be resentenced.

A. Standard of Review

After Liou appealed, the Supreme Court issued its decision in Rita. To determine the appropriate standard of review in this case, we must first consider the effect of Rita.

1. Our Post-Booker Jurisprudence

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court "transformed the Sentencing Guidelines from a mandatory scheme to an advisory resource." United States v. Richardson, 437 F.3d 550, 553 (6th Cir.2006). The Court further held that in reviewing a district court's sentence, we are to apply "a practical standard of review ... familiar to appellate courts: review for `unreasonable[ness].'" Booker, 543 U.S. at 261, 125 S.Ct. 738 (alteration in original). In our post-Booker jurisprudence we determined that "[r]easonableness has both substantive and procedural components." United States v. Jones, 489 F.3d 243, 250 (6th Cir.2007).

As to procedural reasonableness, we have held that "[a] sentence may be procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration." Id. (internal citations and quotation marks omitted). Additionally, we have suggested that when "a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it." Id. (quoting Richardson, 437 F.3d at 554).

In considering substantive reasonableness, we have held that "[a] sentence may [be] substantively unreasonable where the district court `select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors, or giv[es] an unreasonable amount of weight to any pertinent factor.'" Id. at 252 (quoting United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006)) (second through fifth alterations in original). Although we have noted that the border between factors properly considered "substantive" and those properly considered "procedural" is blurry if not porous, see id. at 252 n. 3, our post-Booker jurisprudence requires us to consider each of these factors in determining whether a sentence is reasonable.

Further, with regard to the substantive reasonableness inquiry, we have applied a "rebuttable presumption of reasonableness" to sentences falling within the applicable Guidelines range. United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 3043, ___ L.Ed.2d ___ (2007).² However, we have also rejected the notions that a within-Guidelines sentence is "per-se reasonable," Richardson, 437 F.3d at 554 n. 2 (quoting Webb, 403 F.3d at 385 n. 9), and that a sentence falling outside the Guidelines range is presumptively un reasonable, Ferguson, 456 F.3d at 664-65. Some of our precedents might be read to indicate that the presumption of reasonableness implies an enhanced burden on the party challenging the district court's sentence. See, e.g., United States v. Shoup, 188 Fed.Appx. 418, 425 (6th Cir.2006) (unpublished) ("Ultimately, Shoup has failed to overcome the rebuttable presumption of reasonableness that we must apply to this case."); United States v. Crenshaw, 182 Fed.Appx. 440, 442 (6th Cir.2006) (unpublished) ("Crenshaw has not pointed to anything which overcomes th[e] presumption [of reasonableness] here."). We have not, however, clearly identified the contours of this presumption or its ultimate effect.

Other circuits disagreed with our holding in Williams and held that a sentence falling within the applicable Guidelines range is not entitled to a presumption of reasonableness. See Rita, 127 S.Ct. at 2462 (citing United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir.2006) (en banc), cert. denied, ___ U.S. ___, 127 S.Ct. 928, 166 L.Ed.2d 715 (2007); United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 192, 166 L.Ed.2d 143 (2006); United States v. Cooper, 437 F.3d 324, 331-32 (3d Cir. 2006); United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005)). The Supreme Court granted certiorari in Rita "to decide whether a circuit court may afford a `presumption of reasonableness' to a `within Guidelines' sentence." Id.

2. The...