U.S. v. Pruitt, No. 06-3152.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Holloway
• Citation: 502 F.3d 1154
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terri PRUITT, Defendant-Appellant.
• Docket Number: No. 06-3152.
• Decision Date: 29 August 2007

502 F.3d 1154 UNITED STATES of America, Plaintiff-Appellee,
v.
Terri PRUITT, Defendant-Appellant. No. 06-3152. United States Court of Appeals, Tenth Circuit. August 29, 2007.

[502 F.3d 1155]

Leon Patton, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Kansas City, KS, for Plaintiff-Appellee.

Melissa Harrison, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with her on the briefs), Kansas City, KS, for Defendant-Appellant.

Before O'BRIEN, HOLLOWAY and McCONNELL, Circuit Judges.

ORDER ON PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC

This matter is before the court on the appellant's petition for panel rehearing, which also includes a request for en banc consideration. We also have a response from the government. Panel members Judge Holloway and Judge O'Brien have voted to grant the petition for panel rehearing for the limited purpose of correcting errors in the previously filed opinion. The panel petition is otherwise denied. Accordingly, it is hereby ordered that the decision filed herein on June 4, 2007, is withdrawn and the attached opinion is ordered filed in its place. Judge McConnell's original concurring opinion is re-filed with the new opinion.

The petition, including the en banc suggestion, was circulated to all of the members of the court who are in regular active service. No judge called for a poll. Accordingly, the request for rehearing en banc is denied.

HOLLOWAY, Circuit Judge.

Defendant-Appellant Terri Pruitt (Pruitt) pleaded guilty to distribution of five or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). She appeals the sentence that the district court imposed. We have

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jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we AFFIRM.

I. BACKGROUND A. Pruitt's Criminal History and the Instant Offense

Pruitt is a 42-year-old woman with three prior convictions for selling illegal drugs and a criminal history spanning two decades.

In 1985, Pruitt completed a one-year diversion¹ for a DUI charge, filed under Kansas law. In 1987, Pruitt was arrested and charged with possession of methamphetamine and conspiracy to possess or sell cocaine, both felonies under Kansas law. R., Vol. IV, at 7; R. Vol. I, tab 20, at 1. Before Pruitt pleaded guilty to these offenses, she was convicted of aggravated failure to appear in court because she failed to appear as ordered by the court. R., Vol. IV, at 8. Pruitt ultimately pleaded guilty to these drug-related felonies, and she served four years on probation (until April 1991). Id. at 7.

Approximately eight months after she was released from probation, Pruitt was again arrested and charged with committing drug-related crimes, this time possession with intent to sell marijuana and possession of cocaine, felonies under Kansas law. Id. at 9. On this occasion, Pruitt brought her then-infant daughter to a drug transaction and was found in possession of 102.1 grams of marijuana, 10 plastic "baggies," 13 syringes, a metal tin containing cocaine, a plastic spoon, various types of pills, a mirror, a razor blade, a set of scales, and $420. Id. But before the court could adjudicate her case, Pruitt was arrested and charged with another drug-related offense—sale of methamphetamine in violation of Kansas law. Id. at 10. Pruitt was convicted of all of these felonies and served about four years in prison. Id. at 9-10; R., Vol. I, tab 20, at 1-2. She was paroled in 1996 and discharged from parole in 1998. R., Vol. IV, at 9.

Seven years later, Pruitt would again find herself charged with a drug-related crime. On April 27, 2005, the Government indicted Pruitt for knowingly and intentionally distributing five or more grams of methamphetamine. R., Vol. I, tab 1, at 1. On November 22, 2004, a confidential drug informant told a DEA Special Agent that Pruitt was involved in distributing multiple-ounce quantities of methamphetamine. R., Vol. IV, at 4; R., Vol. II, at 15. Based on this information, the Government decided to execute a controlled purchase of methamphetamine from Pruitt. R., Vol. IV, at 4; R., Vol. II, at 15.

On November 29, 2004, the informant and Pruitt arranged to meet at Pruitt's residence and agreed that Pruitt would sell the informant one to two ounces of methamphetamine. R., Vol. IV, at 4; R., Vol. II, at 15. The informant arrived at Pruitt's residence as planned, and Pruitt provided the informant with one ounce of methamphetamine in exchange for $1,350. R., Vol. IV, at 4-5; R., Vol. II, at 15-16. The informant pressed Pruitt on when she would have more methamphetamine, to which she responded that she was working to procure another ounce. R., Vol. IV, at 4. The Government contended in Pruitt's change-of-plea hearing that Pruitt and the informant also discussed conducting a future sale of two ounces of methamphetamine for $2,500. R., Vol. II, at 16. When the court asked Pruitt if "[she] did in fact do exactly what counsel for the government indicated," Pruitt replied, "[y]es, sir, I did." Id. The substance that Pruitt sold to the informant contained 29.4 net grams

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of 63% pure methamphetamine. R., Vol. IV, at 5; R., Vol. II, at 16.

After initially pleading not-guilty to the offense, Pruitt changed her mind and entered a guilty plea. See generally R., Vol. II (transcript of Pruitt's change-of-plea hearing).

B. The Sentence Imposed

The district court sentenced Pruitt to 292 months' imprisonment and 8 years' supervised release, and levied a special assessment of $100. R., Vol. I, tab 36, at 2-7. The court also allowed Pruitt to receive correctional treatment that she desired and imposed restrictions consistent with those normally imposed on convicted felons, parts of the sentence that Pruitt does not challenge here. Id. The 292-month term of imprisonment is a within-Guidelines sentence that represents the lowest end of the applicable Guidelines range.

The district court first recognized that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Sentencing Guidelines advisory. R., Vol. III, at 21-22. The court explained that it was required to calculate Pruitt's sentence under the Guidelines, but that it would consider the Guidelines range as one factor among other relevant 18 U.S.C. § 3553(a) factors. Id. at 22.

The court then addressed the sentence. Closely tracking the factors set forth in § 3553(a), the court considered the nature and circumstances of the offense; Pruitt's history and characteristics; and the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, deter criminal conduct, and protect the public from further crimes of the Defendant. Id. at 23-27. See excerpts from the district court's decision infra pp. 1160-62.

In essence, the district court stated that although it had authority to vary from the Guidelines range, no factors warranted doing so. Thus, the district court concluded that 292 months' imprisonment is a reasonable sentence under the circumstances.

II. DISCUSSION

Pruitt argues that this court should not accord a presumption of reasonableness to a within-Guidelines sentence, nor should this court accord a presumption of reasonableness to a sentence within U.S.S.G. § 4B1.1, the Guidelines's career-offender provision. Further, Pruitt argues that the district court erred by failing to rule on whether Pruitt was entitled to a two-level reduction in offense level for acceptance of responsibility; by failing to adequately state its reasons for refusing to impose a below-Guidelines sentence; and by imposing a substantively unreasonable sentence of 292 months' imprisonment.

A. Presumption of Reasonableness to a Within-Guidelines Sentence

We have expressly rejected Pruitt's first argument that according a Guidelines-range sentence a presumption of reasonableness violates United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir.2006), we held that a sentence within the properly-calculated Guidelines range is presumptively reasonable, but subject to rebuttal in light of § 3553(a)'s other sentencing factors.

The Supreme Court in Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), held that it is consistent with Booker to accord a presumption of reasonableness to a within-Guidelines sentence, thus approving of our holding in Kristl. Thus, we will review the substantive reasonableness of the sentence using that presumption.

502 F.3d 1158

B. Presumption of Reasonableness to a U.S.S.G. § 4B1.1 Sentence

Pruitt's second argument reads like a recapitulation of her first argument: just as this court should not accord a presumption of reasonableness to a within-Guidelines sentence, she argues, this court should also decline to accord a presumption of reasonableness to a sentence within the Guidelines's career-offender provision. We disagree. The logical extension of our holding in Kristl—that a within-Guidelines sentence is presumptively reasonable—is that a sentence within the career-offender range, which is part of the Guidelines, is also presumptively reasonable.²

Pruitt attempts to distinguish Kristl by resorting to Sentencing Commission reports about, and her own criticisms of, the career-offender provision: Pruitt argues that a presumption-of-reasonableness standard is especially unwarranted when applying U.S.S.G. § 4B1.1 because a sentence under § 4B1.1 might overstate the seriousness of a defendant's record and create an excessive deterrent effect. Moreover, Pruitt asserts, the Sentencing Commission noted in a recent report that low-level drug traffickers have lower recidivism rates than career offenders with violent backgrounds. She also relies on another Sentencing Commission publication in which the commission noted that women have lower...