U.S. v. McElheney, 1:06-CR-113.
| Decision Date | 14 November 2007 |
| Docket Number | No. 1:06-CR-113.,1:06-CR-113. |
| Citation | 524 F.Supp.2d 983 |
| Parties | UNITED STATES of America v. Earl McELHENEY. |
| Court | U.S. District Court — Eastern District of Tennessee |
On September 27, 2007, the Court held the sentencing hearing in this case (Court File No. 73). The Court considered Defendant Dr. Norman Earl McElheney's ("Defendant") Motion for Downward Departure/Variance and supporting memorandum (Court File Nos. 45 & 46), Objections to the Presentence Report (Court File No. 47), Sentencing Memorandum (Court File No. 48), Supplement to Objections to Presentence Report (Court File No. 54), Supplement to Defendant's Sentencing Memorandum (Court File No. 59), Second Objection to Presentence Report (Court File No. 63),1 and two additional Supplements to Defendant's Sentencing Memorandum (Court File Nos. 64 & 70). The United States ("Government") filed a Response to Defendant's Motion for Downward Departure/Variance (Court File No. 52) as well as a Response to Defendant's Second Objection to the Presentence Report (Court File No. 66).
At the hearing Defendant withdrew his factual objections to the Presentence Report. The Court determined the Sentencing Guidelines applicable to Defendant's case, decided Defendant's motions, and consistent with the Court's determinations as stated at the sentencing hearing, after carefully considering the arguments of counsel and the factors listed in 18 U.S.C. § 3553(a), imposed a sentence of 135 months (Court File No. 75).
The Court is required to explain the reasons for its sentence. 18 U.S.C. § 3553(c). This memorandum will elaborate upon the reasons stated at the time of the imposition of sentence.
After the United States Supreme Court's ("Supreme Court") decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the manner in which district courts imposed sentences changed. Prior to the Booker decision, sentencing judges followed the mandatory United States Sentencing Guidelines ("USSG"). In Booker the Supreme Court considered whether mandatory guidelines where judges were required to make factual determinations that could result in a defendant receiving an enhanced sentence violated the Sixth Amendment. Id. at 226, 125 S.Ct. 738. The Court held that the mandatory guidelines did run afoul of the Sixth Amendment. Id. at 245, 125 S.Ct. 738. To remedy the violation the Court severed and excised two parts of the statute authorizing the Guidelines, 18 U.S.C. § 3553(b)(1) () and 18 U.S.C. § 3742(e) (). Id. at 245-46, 125 S.Ct. 738. With these excisions the Guidelines were no longer mandatory and binding on sentencing coats. Instead the Guidelines became advisory. Id. The modified statute then "requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well." Id. (citations omitted). Sentencing courts were instructed to look to 18 U.S.C. § 3553(a) (" § 3553(a)") as a whole which requires the sentencing court to consider the applicable Guideline range in determining sentences. Id. at 259, 125 S.Ct. 738.
Following the Booker decision, this Court issued an opinion in United States v. Phelps, 366 F.Supp.2d 580 (E.D.Tenn. 2005), that explained in general terms the methodology it would employ in sentencing. Id. at 584-94. Complying with the holding in Booker the Court's methodology requires the Court to "determine the Guidelines range applicable to each case," id. at 584; "determine whether any departures from the advisory Guidelines range are appropriate," id. at 585; and "determine the appropriate sentence," id. at 586. In imposing an appropriate sentence the Court will be guided by § 3553(a)'s general parsimony provision and "will impose a sentence in each case which is sufficient, but not greater than necessary, to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate specific and general deterrence, and provide the defendant with needed training, care, or treatment in the most effective manner." Id. at 593.
Ultimately, in arriving at an appropriate sentence the Court must consider and comply with the factors set out in § 3553(a).2 After taking into account those factors the Court must arrive at a sentence that is tailored to the nature and circumstances of the offense and the unique history, background and characteristics of the defendant.
Since Phelps was issued, the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit") has decided a number of cases concerning the procedures that must be followed by district judges following the Booker decision. In one such case, United States v. Buchanan, 449 F.3d 731 (6th Cir.2006), Judge Sutton, in a concurring opinion, explained in detail the procedural requirements a district court should use:
(1) the judge must make all findings of fact necessary to apply the guidelines to the defendant, United States v. Orlando, 281 F.3d 586, 600-01 (6th Cir.2002); see United States v. Moreland, 437 F.3d 424, 432 (4th Cir.2006);
(2) the judge must calculate the guidelines sentencing range correctly, see 18 U.S.C. § 3742(f)(1); United States v. Gibson, 409 F.3d 325, 338-39 (6th Cir. 2005);
(3) the judge must determine whether to grant a downward departure or an upward departure from the guidelines, see, e.g., United States v. McBride, 434 F.3d 470, 474-75 (6th Cir.2006); United States v. Puckett, 422 F.3d 340 (6th Cir. 2005);
(4) the judge must recognize her discretion to issue a sentence that varies from the guidelines, see Booker, 543 U.S. at 245-46, 125 S.Ct. 738, 160 L.Ed.2d 621; (5) the judge must consider the § 3553(a) factors in exercising her independent judgment about what an appropriate sentence should be, id.;
(6) the judge must account for any relevant statutory minimum and maximum sentences, see, e.g., United States v. Van Hoosier; 442 F.3d 939, 946 (6th Cir. 2006); and
(7) the judge must give a reasoned explanation for the sentence, see, e.g., United States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005); United States v. Kirby, 418 F.3d 621, 626 (6th Cir.2005).
Buchanan, 449 F.3d at 738-39 (Sutton, J., concurring). Although more encompassing than the methodology described in Phelps, the guidance provided by Judge Sutton in Buchanan is entirely consistent with Phelps. Other recent Sixth Circuit case law is also consistent with Phelps. See, e.g., United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006) ().
The latest decision regarding the Sentencing Guidelines by the Supreme Court is Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). The question considered by the Court in Rita was whether it violated the Constitution for the courts of appeal to apply a presumption of reasonableness to sentences within the Sentencing Guidelines. Rita, 127 S.Ct. at 2459. The Supreme Court held that it was appropriate for the courts of appeal to apply a presumption of reasonableness to sentences by district courts that fall with the Sentencing Guidelines. Id. Although not the question considered by the Court, the Supreme Court provided instructive language regarding the responsibility of sentencing judges in imposing sentences. The Court stated:
The sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines. He may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the "heartland" to which the Commission intends individual Guidelines to apply, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps because the case warrants a different sentence regardless. Thus, the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure. In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.
Id. at 2465 (internal citations omitted).
From the Rita decision we see the Supreme Court again reiterating the obligation of sentencing judges to correctly calculate the applicable Sentencing Guideline range but to then impose a sentence based upon 18 U.S.C. § 3553(a).
This emphasis on the necessity of correctly calculating the applicable guidelines was recently commented on by the United States Court of Appeals for the Seventh Circuit ("Seventh Circuit") in a decision it issued following Rita. United States v. Sachsenmaier, 491 F.3d 680 (7th Cir.2007). In that case the Seventh Circuit explained:
[T]he Supreme Court has now expressly endorsed the rebuttable presumption of reasonableness for appellate review of a district court's sentencing decision. The Rita decision emphasized that this is a standard for appellate review only. The district courts must calculate the advisory sentencing guideline range accurately, so that they can derive whatever insight the guidelines have to offer, but ultimately they must sentence based on 18 U.S.C. § 3553(a) without any thumb on the scale favoring a guideline sentence. If, however, a district court freely decides that the guidelines suggest a reasonable sentence,...
To continue reading
Request your trial
-
U.S. v. C.R
...theDue Process Clause of the Fifth Amendment.445 F.3d at 252-53 (some citations omitted). The Eastern District of Tennessee, in United States v. McElheney, held that the disparity between possession and receipt of child pornography, in that only the latter carries a five-year mandatory mini......
-
U.S. v. C.R., 09–CR–155.
...the Due Process Clause of the Fifth Amendment. 445 F.3d at 252–53 (some citations omitted). The Eastern District of Tennessee, in United States v. McElheney, held that the disparity between possession and receipt of child pornography, in that only the latter carries a five-year mandatory mi......
-
U.S. v. Polizzi
...such material, because it is that person who is creating and/or perpetuating the market for such material."); United States v. McElheney, 524 F.Supp.2d 983, 1001 (E.D.Tenn.2007) ("Someone who merely possesses child pornography is not as active in the market as someone who receives child por......
-
United States v. Caparotta
...child pornography, so there is a rational basis for Congress's decision to impose different sentences for those offenses.524 F.Supp.2d 983, 1000–01 (E.D.Tenn.2007), vacated on other grounds by310 Fed.Appx. 857 (6th Cir.2009). Circuit courts outside the Second Circuit have also distinguished......