U.S. v. Pruitt, 06-3152.

Citation487 F.3d 1298
Decision Date04 June 2007
Docket NumberNo. 06-3152.,06-3152.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Terri PRUITT, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

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.

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 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 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. 1304-06.

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 the district court erred by (1) according a presumption of reasonableness to a within-Guidelines sentence; (2) according a presumption of reasonableness to a sentence within U.S.S.G. § 4B1.1, the Guidelines's career-offender provision; (3) failing to rule on whether Pruitt was entitled to a two-level reduction in offense level for acceptance of responsibility; (4) failing to adequately state its reasons for refusing to impose a below-Guidelines sentence; and (5) 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.

Although the Supreme Court granted certiorari in United States v. Rita, 177 Fed.Appx. 357 (4th Cir.2006), cert. granted, ___ U.S. ____, 127 S.Ct. 551, 166 L.Ed.2d 406 (Nov. 3, 2006), to decide whether it is consistent with Booker to accord a presumption of reasonableness to a within-Guidelines sentence, Kristl remains good law in this circuit, and this panel lacks authority to overrule it. Thus, the district court did not err by giving "substantial weight" to the Guidelines.

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 the district court erred by according a presumption of reasonableness to a within-Guidelines sentence, she argues, the district court also erred by according 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 recidivism rates than men. According to Pruitt, these reports reveal that, in some cases, a sentence imposed under § 4B1.1 will conflict with the sentence that should be imposed in light of 18 U.S.C § 3553(a).

Pruitt fails to recognize that these examples and statements bear little to no correlation to her extensive criminal history. Thus, even if we were able to create the exception that Pruitt proposes, the facts here bear so little correlation to the problems identified in the Commission's reports that we would need to disregard the case before us, and speculate about hypothetical cases and facts, before determining that creating the exception is a wise panacea to unreasonable sentences. We are unwilling to create such an important exception based on such speculation. Consistent with Kristl, we therefore find no error in the district court's decision to accord a presumption of...

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