U.S. v. McDonald

• Decision Date: 05 September 2006
• Docket Number: No. 05-1617.,05-1617.
• Citation: 461 F.3d 948
• Parties: UNITED STATES of America, Appellant, v. Jeffrey Allen McDONALD, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

461 F.3d 948

UNITED STATES of America, Appellant, v. Jeffrey Allen McDONALD, Appellee.

No. 05-1617.

United States Court of Appeals, Eighth Circuit.

Submitted: December 12, 2005.

Filed: September 5, 2006.

Andrew H. Kahl, Asst. U.S. Atty., argued, Des Moines, IA (Matthias D. Onderak, Special Asst. U.S. Atty., Rock Island, IL, on the brief), for appellant.

Kevin Cmelik, argued, Davenport, IA, for appellee.

Before BYE, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Jeffrey Allen McDonald ("McDonald") pled guilty to two counts of attempting to manufacture methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) and one count of creating a substantial risk of harm to human life while manufacturing a controlled substance in violation of 21 U.S.C. § 858. After calculating an advisory United States Sentencing Commission Sentencing Guidelines sentencing range of 262 to 327 months, the district court sentenced McDonald to 132 months' imprisonment — 12 months longer than the statutory mandatory minimum sentence and roughly 50 percent below the guidelines sentencing range. The Government appeals. We remand for resentencing.

I. BACKGROUND

On January 2, 2004, law enforcement officers arrested McDonald after discovering that he was operating a methamphetamine lab in a crowded residential trailer park. On April 19, 2004, McDonald was arrested again. This time, during a traffic stop, police found him in possession of drug paraphernalia and materials necessary to manufacture methamphetamine. A subsequent search of McDonald's residence yielded additional methamphetamine manufacturing materials. McDonald faced state charges in Iowa following each arrest.

The state charges against McDonald were dismissed when a federal grand jury indicted McDonald in connection with his January and April 2004 arrests. In the district court, McDonald admitted his January 2004 offense and pled guilty to one count of attempting to manufacture methamphetamine. Because his methamphetamine lab created a serious risk of explosion in the crowded trailer park, McDonald also pled guilty to one count of creating a substantial risk to human life while manufacturing a controlled substance. Related to his April 2004 arrest, McDonald pled guilty to a second count of attempting to manufacture methamphetamine.

Because McDonald had previously been convicted of a felony drug offense, the district court determined that the statutory mandatory minimum sentence for each count of attempting to manufacture methamphetamine was ten years. 21 U.S.C. § 841(b)(1)(B). The maximum available sentence was life imprisonment. Id. Because the district court determined that McDonald was a "career offender,"¹ McDonald's criminal history category was VI. Guidelines § 4B1.1. Because the statutory maximum sentence for his crime was life imprisonment, McDonald's adjusted base offense level was 37. Id. McDonald received a three-level adjustment for acceptance of responsibility. Accordingly, the district court determined that the total offense level was 34. As a result, the advisory guidelines sentencing range was 262 to 327 months.²

At McDonald's sentencing hearing, McDonald's brother, Rodney McDonald ("Rodney"), testified that after McDonald was paroled from prison in 1998, McDonald stayed off drugs, worked as a mechanic and won custody of his two daughters. According to Rodney, in 2001, one of McDonald's daughters was killed in an automobile accident, and McDonald's other daughter moved back in with her mother. Rodney testified that McDonald began drinking again, and he suggested that McDonald resumed his drug use. Rodney also stated that following McDonald's prison term for the instant offenses, McDonald's family would be supportive, and McDonald's most recent employer would be willing to rehire McDonald "if he's able to stay off drugs."

Following Rodney's testimony, the district court entertained McDonald's attorney's argument that: (i) the death of McDonald's daughter, though not "an excuse, . . . is clearly relevant as to how Mr. McDonald got back into using meth;" (ii) McDonald manufactured methamphetamine "primarily to feed his habit;" (iii) McDonald's criminal history was overstated due to the career offender enhancement; (iv) McDonald is only 38 years old, has a "pretty good work history" and has strong family support; and (v) McDonald began cooperating "very early on" after his arrest. McDonald's lawyer argued that McDonald should be sentenced to the statutory mandatory minimum sentence of 120 months.

McDonald testified that he had been "mistreated in the system," he had already served time when his probation had been revoked in 1997, and "he stayed clean" beginning with his imprisonment in 1997 and up until his daughter died in 2001.

After also hearing from the Government, the district court discussed factors that, in its view, were relevant to McDonald's sentence. The district court viewed positively McDonald's "employment for over a year's period of time as well as his skills as a welder," finding that "when [McDonald] is not feeding his addiction, he can compete in the private sector." The district court considered the statement of McDonald's previous employer, Ms. Schulte of Schulte Construction. Schulte Construction employed McDonald "as a mechanic and a laborer from March 17, '02 through June 28, '03." Ms. Schulte told the probation office that McDonald "was an excellent employee, he was very knowledgeable, hardworking and punctual." However, Ms. Schulte also "relate[d] how [McDonald's] productivity and attendance declined." The district court stated that it "assume[d] this is in conjunction with his addiction." Ms. Schulte indicated that she might reconsider McDonald for employment following his imprisonment, if he can stay off drugs.

On the other hand, the district court found that McDonald was appropriately considered a career offender, specifically disagreed with McDonald's "characterization of his past activity as being innocuous" and noted that McDonald's activities placed the public at serious risk.

The district court made several comments about McDonald's psychological health and drug addiction. For instance, the district court noted that McDonald had been diagnosed with depression and was taking medication. The district court also stated that "[s]pecific mention by me will be [made] of the Defendant's long-time drug dependency and psychiatric diagnoses that have been made both in the past and in the future" and that "[t]he Defendant's criminal history indicates that he has been addicted to methamphetamine." The district court concluded that it was "pretty well convinced that the Defendant is a drug addict and has a great dependency on drugs . . . ." Nevertheless, the district court stated that McDonald's addiction "does not forgive or relieve the serious implications of his drug manufacturing in this instance."

The district court also addressed the death of McDonald's daughter, stating that "[t]he personal tragedies of the Defendant have, according to the Defendant, been the triggering event. Whether or not that's true, and the Court is in no position to know that, the Defendant apparently has no insight into his mental health problems, nor apparently does his family."

Finally, the district court discussed an unpublished opinion from the Northern District of Indiana, United States v. Nellum, No. 2:04-CR-30-PS, 2005 WL 300073 (N.D.Ind. Feb.3, 2005). Citing a United States Sentencing Commission study regarding recidivism,³ the district court in Nellum varied downward from the guidelines sentencing range based in part upon that court's prediction that Nellum was unlikely to recidivate due to his advanced age. Relying upon Nellum's reproduction of a portion of a chart from the USSC Recidivism Study, the district court in the instant case stated that

[t]he likelihood of recidivism . . . recidivism rates decline consistently as age increases. Generally, the younger the offender, the more likely the offender recidivates. . . . [Quoting Nellum:] Among all offenders under the age of 21 recidivism rate is 35.5, while offenders over the age of 50 have a recidivism rate of 9.5 percent. . . . According to the [criminal] history category III Defendants like Defendant Nellum the recidivism rates are as follows, and the Court is going to specifically refer to Mr. McDonald's age as between 36 and 40, the recidivism rate is still 29.4 percent.

Based upon the district court's analysis of McDonald's age and its perceived relationship to the likelihood that McDonald would recidivate, the district court stated that "with the long sentence that is mandated by the Congress, hopefully the citizens will be protected from Mr. McDonald. He will be adequately deterred and the public won't have further crimes committed by this Defendant."

The district court then sentenced McDonald to 132 months' imprisonment on each count of attempting to manufacture methamphetamine, as well as 120 months' imprisonment for creating a substantial risk of harm to human life while manufacturing a controlled substance. McDonald's sentences for all counts were to run concurrently. The district court concluded by commenting that "[t]his . . . , I think, would be categorized by the Government as a very lenient sentence . . . ."

II. DISCUSSION

Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences to determine "whether the district court abused its discretion by imposing an unreasonable sentence on the defendant." United States v. Haack, 403 F.3d 997, 1003 (8th Cir.2005). The guidelines sentencing range remains the "critical starting point" of our analysis, United States v. Mashek, 406 F.3d 1012, 1016 n. 4 (8th Cir.2005), and "[b]ecause the Guidelines are fashioned taking the other § 3553(a) factors into account and are the product of years of careful study, the guidelines...