U.S. v. Petrus

Decision Date23 November 2009
Docket NumberNo. 08-1706.,08-1706.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wasem PETRUS, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Before: GILMAN and McKEAGUE, Circuit Judges; SARGUS, District Judge.*

SARGUS, D.J., delivered the opinion of the court, in which McKEAGUE, J., joined. GILMAN, J. (pp. 357-60), delivered a separate dissenting opinion.

OPINION

EDMUND A. SARGUS, JR., District Judge.

Defendant-Appellant Wasem Petrus ("Defendant") challenges the 70-month sentenced imposed by the district court following his guilty plea to a charge of conspiring to possess with intent to distribute and to distribute methylenedioxymethamphetamine ("MDMA"). Defendant contends that his sentence is procedurally unreasonable because the district judge failed to adequately explain her apparent rejection of Defendant's arguments for leniency, failed to adequately explain how she selected the sentence imposed, and failed to give proper weight to facts and circumstances suggesting a lesser penalty. For the reasons that follow, we hereby AFFIRM the sentence imposed by the district court.

I. BACKGROUND

Defendant was charged in a one-count indictment returned July 20, 2007 in the U.S. District Court for the Eastern District of Michigan for conspiring to possess with intent to distribute and distribute MDMA in violation of 21 U.S.C. §§ 841(a)(1) and 846. Defendant pleaded guilty to the charge on November 13, 2007, and a sentencing hearing was held on May 20, 2008.

At the sentencing hearing, Defendant's counsel urged the district court to consider the fact that Defendant had been born in Iraq and that his family fled as refugees when Defendant was a young child. According to Defendant's counsel, due to his parents' poor health, Defendant has "been the man of his family" since a very young age, having dropped out of school after the tenth grade to help support his family. (Sentencing Tr. at 4.) Defendant's counsel asked the Court to "take into account [Defendant's] personal circumstances, including the fact that he takes care of his family." (Id. at 6.) He pointed out that Defendant is "not a person [who has] supported himself as a drug dealer" or who has "ever been successful as a drug dealer," but rather "took advantage of an economic opportunity" presented by a coworker. (Id. at 6.)

In his sentencing memorandum, Defendant also asserted that "[his] family was forced to flee Iraq. He has no family there and there is no society or government which will embrace him or protect him." (Def.'s Sentencing Mem., ROA V.1 at 16.) Defendant contended that "[t]he profound immigration consequences he faces take his case very far from the heartland of cases anticipated by the ... Guidelines and warrant a sentence greatly below the recommended sentence." (Id. at 16.)

Counsel also suggested that, due to Defendant's non-citizen status, his conviction may subject him to possible deportation to Iraq, "a war zone" and "someplace that is [no longer the] country his family had to flee as refugees." (Sentencing Tr. 7.) Counsel for the government responded that the government currently is "not deporting to Iraq ... and probably won't for some years in the future." (Id. at 8.)

After listening to the above statements, the district court calculated the applicable Guideline range to be 70-87 months based on an Offense Level of 27 and Criminal History Category of one. The court listed several factors under 18 U.S.C. § 3553(a) to which Defendant's counsel had directed the court: Defendant's background as an Iraqi refugee, the fact that he dropped out of school and has worked since a young age to care for disabled parents, the fact that Defendant's legal problems stem from relationships developed while he was working, his recent marriage, and the risk of "severely adverse immigration action." (Sentencing Tr. 10.) The court then listed the general statutory factors under § 3553(a) and acknowledged that the court must also "consider the kinds of sentences available, the Guideline range, the Guidelines generally, the need to avoid unwarranted ... disparities ... and the need to ... provide restitution to victims." (Id. at 10.)

The court stated that as it "consider[s] generally those factors or those facts about [Defendant's] life that he wishes the Court to take into account, the Court also takes into account that in arriving at these Guidelines, [Defendant's] lack of criminal history was taken into account because he received the benefit of a reduction under what we call the safety valve." (Sentencing Tr. 11.) The court noted that it had also considered the fact that Defendant was involved in a "very serious offense" and that credible evidence documented his role as a distributor. (Id. at 11.) The relevant conduct attributed to Defendant included 8,125 MDMA pills, equivalent under Sentencing Guideline 2D 1.1(c) to over one million kilograms of marijuana.

The court acknowledged that an otherwise similar offender in the conspiracy, Jeny Maqi, had received an "extremely lenient" sentence partly due to the "vast" extent of her cooperation with the government and the "extraordinary and exceptional" amount of information she had provided. (Sentencing Tr. 11.) The court stated that it understood Defendant's assertion that "by the time [Defendant] came in there wasn't any information that he had to provide," noted that the court did not know whether this was true, but found a "vast distinction between [Defendant] and Miss [Maqi] because of the nature of her cooperation." (Id. at 11.)

The court stated that it "certainly is mindful" that it could consider Defendant's immigration status. (Sentencing Tr. 12.) The district court then sentenced Defendant to serve a term of 70 months in custody followed by three years of supervised release.

On May 29, 2008, Defendant filed this timely appeal.

II. STANDARD OF REVIEW

We review a district court's sentencing determination for reasonableness under a "deferential abuse-of-discretion standard." United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007); Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007); United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). This standard has two components: procedural and substantive. Id., 511 F.3d at 578 (citing Gall, 128 S.Ct. at 597).

A. Procedural Reasonableness Review

Our procedural reasonableness review consists of three steps. We must ensure that the district court (1) properly calculated the applicable advisory Guidelines range; (2) considered the § 3553(a) factors as well as the parties' arguments for a sentence outside the Guidelines range; and (3) adequately articulated its reasoning for imposing the chosen sentence, including any rejection of the parties' arguments for an outside-Guidelines sentence and any decision to deviate from the advisory Guidelines range. Bolds, 511 F.3d at 581.

"First, we must ensure that the district court `correctly calculat[ed] the applicable Guidelines range' which are `the starting point and initial benchmark' of its sentencing analysis." Bolds, 511 F.3d at 579 (quoting Gall, 128 S.Ct. at 591). In reviewing the district court's calculation of the Guidelines, we still review the district court's factual findings for clear error and its legal conclusions de novo. Id., 511 F.3d at 579 (citing United States v. Lalonde, 509 F.3d 750, 763 (6th Cir.2007)).

Second, we must ensure that the district judge gave both parties an opportunity "`to argue for whatever sentence they deem appropriate' and then `considered all of the § 3553(a) factors to determine whether they support the sentence requested by [each] party.'" Bolds, 511 F.3d at 579-80 (quoting Gall, 128 S.Ct. at 596). "In evaluating the parties' arguments, the sentencing judge `may not presume that the Guidelines range is reasonable,'" but rather "`must make an individualized assessment based on the facts presented' and upon a thorough consideration of all of the § 3553(a) factors." Id., 511 F.3d at 580 (quoting Gall, 128 S.Ct. at 596-97; Rita, 127 S.Ct. at 2465).

Finally, we must "ensure that the district court has `adequately explain[ed] the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.'" Bolds, 511 F.3d at 580 (quoting Gall, 128 S.Ct. at 597). "Reversible procedural error occurs if the sentencing judge fails to `set forth enough [of a statement of reasons] to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision making authority.'" Id., 511 F.3d at 580 (emphasis added) (quoting Rita, 127 S.Ct. at 2468).

It is "not incumbent on the District Judge to raise every conceivably relevant issue on his own initiative." Gall, 128 S.Ct. at 599. However, if a defendant raises a particular argument in support of a lower sentence, the record must reflect that the district judge both considered the defendant's argument and explained the basis for rejecting it. Bolds, 511 F.3d at 580 (citing United States v. Jones, 489 F.3d 243, 251 (6th Cir.2007)). See also Rita, 127 S.Ct. at 2468 ("Where the defendant ... presents nonfrivolous reasons for imposing a different sentence ... the judge will normally go further and explain why he has rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation.").

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