U.S. v. Phinazee

• Decision Date: 07 February 2008
• Docket Number: No. 06-5730.,06-5730.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rafael L. PHINAZEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

515 F.3d 511

UNITED STATES of America, Plaintiff-Appellee, v. Rafael L. PHINAZEE, Defendant-Appellant.

No. 06-5730.

United States Court of Appeals, Sixth Circuit.

Argued: October 25, 2007.

Decided and Filed: February 7, 2008.

ARGUED: Hugh J. Moore, Jr., Chambliss, Bahner & Stophel, Chattanooga, Tennessee, for Appellant. Gregg L. Sullivan, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: Hugh J. Moore, Jr., Chambliss, Bahner & Stophel, Chattanooga, Tennessee, Thomas C. Greenholtz, Shumacker, Witt, Gaither & Whitaker, Chattanooga, Tennessee, for Appellant. Gregg L. Sullivan, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: MERRITT, ROGERS, and McKEAGUE, Circuit Judges.

McKEAGUE, J., delivered the opinion the court, in which ROGERS, J., joined. MERRITT, J. (pp. 521-28), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

Defendant-appellant Rafael Phinazee was convicted by a jury of conspiracy to distribute crack and powder cocaine. The presentence report ("PSR") calculated his total offense level at 38 and placed him in a criminal category of VI, which resulted in a Sentencing Guidelines range of 360 months' imprisonment to life.¹ The district court initially sentenced Phinazee to 360 months' imprisonment. After his appeal to this court and a subsequent remand in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), he was re-sentenced to 300 months' imprisonment. Phinazee again appealed, and now argues that his sentence is substantively unreasonable because the downward variance was not large enough. For the reasons stated below, we AFFIRM defendant's sentence.

I. BACKGROUND

In 1997, several federal and local law enforcement agencies were involved in a long-term investigation that targeted drug traffickers in the Chattanooga, Tennessee area that resulted in over fifty convictions. In 2003, as part of that investigation, a federal grand jury indicted Rafael Phinazee and various co-conspirators on one count of conspiracy to distribute fifty (50) grams or more of crack cocaine and 5,000 grams or more of powder cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). The jury found Phinazee guilty of the drug conspiracy as charged in the indictment.

On August 20, 2004, Phinazee was sentenced to a term of 360 months' imprisonment under the then-mandatory Sentencing Guidelines.² Phinazee filed a timely notice of appeal, and on January 6, 2006, we affirmed his conviction but remanded the case to the district court for re-sentencing in light of Booker. United States v. Hereford, 162 Fed.Appx. 439, 440-41 (6th Cir.2006).

On May 11, 2006, the district court resentenced Phinazee to a term of 300 months' imprisonment, five years below the bottom of the now-advisory Sentencing Guidelines range.³ The Amended Judgment was entered. Phinazee previously had filed a timely notice of appeal on May 16, 2006.

II. ANALYSIS

On appeal, Phinazee argues his sentence of 300 months is substantively unreasonable. In Booker, the Supreme Court declared the once mandatory Sentencing Guidelines to be advisory in nature. 543 U.S. at 245, 125 S.Ct. 738. The Booker Court further announced that the proper standard of appellate review for criminal sentencing appeals is reasonableness. Id. at 260-62, 125 S.Ct. 738. Our reasonableness review is two-fold, requiring that a sentence be both procedurally and substantively reasonable. United States v. Davis, 458 F.3d 491, 495 (6th Cir.2006). A sentence may be procedurally unreasonable if the district court "did not appreciate the non-mandatory nature of the guidelines, did not correctly calculate the sentencing range under the guidelines, or did not consider the § 3553(a) factors." Id. (citations omitted). "[A] sentence may be substantively unreasonable when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor." United States v. Borho, 485 F.3d 904, 908 (6th Cir.2007) (citation and quotation marks omitted).

We review the reasonableness of a sentence using the abuse-of-discretion standard of review. Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). If defendant's sentence is within the Sentencing Guidelines range, we may, but need not, apply a presumption of reasonableness. Id. at 597 (citation omitted). Where, as here, a defendant's sentence is outside the Sentencing Guidelines range, either above or below it, we cannot apply a presumption of unreasonableness. Id. Nonetheless, we "may consider the extent of the deviation, but must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Id. Indeed, "[t]tle fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court." Id. As we explained in Kirchhof:

This case is unusual because the appellant is a defendant who argues that the downward variance from the recommended guidelines range that he received is unreasonable because it is not large enough.

See United States v. Kirchhof 505 F.3d 409, 414 (6th Cir.2007) (citation omitted) (an analogous pre-Gall decision because the defendant argued the variance was not large enough and this court applied a nonrigid form of the proportionality analysis that does not run afoul of Gall's admonitions to determine the sentence was reasonable).

Phinazee does not contend that the district court selected his sentence arbitrarily, based its decision on impermissible factors, or failed to consider pertinent § 3553 factors. Rather he asserts the district court's sentence was substantively unreasonable inasmuch as it improperly deferred to the Sentencing Guidelines with respect to two of the factors, namely deterrence and retribution, and that the court improperly weighed those same factors over the others.

First, Phinazee argues that the district court should have made a specific finding that stated the reasons it rejected applying a ten year sentence as permitted for violators of 21 U.S.C. § 841(b)(1)(A). He cites no authority for the proposition that a district court must make a specific finding about why it imposed a sentence higher than the statutory minimum. As the government notes, the statutory minimum is not a sentencing factor. See 18 U.S.C. § 3553(a). In any event, the ten-year minimum sentence that appellant repeatedly relies on is not the appropriate benchmark. Here, as the government explains, it could have filed a notice of enhancement pursuant to 21 U.S.C. § 851 because Phinazee had at least two prior felony drug convictions. Such an enhancement would have subjected Phinazee to a statutory mandatory sentence of life imprisonment, not a ten-year sentence. See 21 U.S.C. § 841(b)(1)(A) ("If any person commits a violation of this subparagraph ... after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release."). Moreover, Congress has indicated that career offenders, like Phinazee, should be sentenced at or near the maximum term of imprisonment, which is life here. See 28 U.S.C. § 994(h). The district court explicitly recognized its obligation to impose a sentence sufficient but not greater than necessary to comply with the purposes set forth in § 3553(a) before it imposed defendant's sentence. That the district court did not' also explicitly reject the statutory minimum is of no consequence. See United States v. Gale, 468 F.3d 929, 940 (6th Cir.2006) (stating a district court is not required to explain "why an alternative sentence was not selected").

Second, Phinazee objects to the district court's reliance on general deterrence rather than specific deterrence. He argues the district court failed to "consider how deterrence would adequately be promoted on the circumstances of this case." Appellant's Br. at 23. We addressed an analogous argument in United States v. Turner, 173 Fed.Appx. 402, 407-438 (6th Cir.2006) (reviewing for plain error and finding that general deterrence is an acceptable basis for sentencing). Under § 3553, the district court may impose a sentence "to afford adequate deterrence to criminal conduct." 18 U.S.C. § 3553(a)(2)(B). The Turner court's analysis is persuasive in this respect:

The plain language of the statute-that courts may "afford adequate deterrence" in sentencing-also militates against limiting the authority of the court to specific deterrence. Nothing in the explicit language indicates a congressional intent to limit the court's authority. We note that this conclusion comports with the longstanding and uncontroversial practice of considering general deterrence in sentencing. See United States v. Barbara, 683 F.2d 164, 167 (6th Cir.1982) (noting traditional use of both specific and general deterrence).

Turner, 173 Fed.Appx. at 408; see also United States v. Blackwell, 459 F.3d 739, 774 (6th Cir.2006) (affirming a defendant's sentence where the district court in its § 3553(a) analysis stated that it doubted the defendant would ever engage in the conduct again, but that a primary sentencing factor was the need "to deter other similarly situated" individuals from engaging in the conduct). Here, the district court found that:

The reality is, here in Chattanooga and in most other cities in this nation, there are young men who grew up in circumstances such as Mr. Phinazee related. These young men are all tempted to involve themselves in selling drugs because it is easy to do. Drugs are plentiful, and you can make money from doing it. Many of these young men have drug habits themselves, and they use the proceeds from their trafficking activities to support their own drug habit....