U.S. v. Smith

• Decision Date: 26 January 2007
• Docket Number: No. 05-4425.,05-4425.
• Citation: 474 F.3d 888
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Conrad Vernon SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

474 F.3d 888

UNITED STATES of America, Plaintiff-Appellee, v. Conrad Vernon SMITH, Defendant-Appellant.

No. 05-4425.

United States Court of Appeals, Sixth Circuit.

Argued: October 27, 2006.

Decided and Filed: January 26, 2007.

ARGUED: Keith A. Yeazel, Columbus, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Keith A. Yeazel, Columbus, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee.

Before KENNEDY and GIBBONS, Circuit Judges; ALDRICH, District Judge.^*

OPINION

KENNEDY, Circuit Judge.

Defendant Conrad Vernon Smith appeals his 57-month sentence, asserting that the sentence is unreasonable because the district judge, in calculating the sentence, (1) engaged in impermissible fact-finding and (2) failed to follow the methodology set forth in U.S.S.G § 4A1.3, which resulted in a sentence that was greater than was necessary to comply with the factors set forth in 18 U.S.C. § 3553(a). For the reasons set forth below we AFFIRM the sentence of the district court.

BACKGROUND

Defendant Conrad Vernon Smith ("Smith") was pulled over by state police in Columbus, Ohio. When officers approached the vehicle he placed his hands outside the car and shouted, "I am not going to lie; I don't have a driver's license and there is a gun in the car." That gun was a loaded, sawed-off shotgun resting on the driver's side floorboard. The weapon was unregistered and the serial number had been obliterated. Smith was already a convicted felon.

A grand jury for the Southern District of Ohio returned a three-count indictment against Smith for (1) possession of an unregistered firearm, (2) possession of a firearm with an obliterated serial number, and (3) possession of a firearm as a convicted felon. Smith pleaded guilty to the third count in exchange for dismissal of counts one and two.

A presentence investigation report was prepared, which determined that Smith had an offense level of 12 and a criminal history category (CHC) of VI. It noted that the guideline range was 30-37 months. The parties did not object to the report.

The district court notified Smith that it was considering an upward departure based on U.S.S.G. § 4A1.3 because of his criminal history. Smith objected to an upward departure and requested a downward departure. At a sentencing hearing, the court overruled Smith's objections and departed upward from the sentencing guidelines recommendation to offense level 16, CHC VI. The new advisory range, the court found, was 46-57 months imprisonment. The court thus imposed a sentence of 57 months. This timely appeal followed.

ANALYSIS

I. The District Court's Findings of Fact

Smith argues that the district court exceeded its fact-finding prerogative by making "comparative and qualitative" findings; for example, Smith contests its finding that his criminal history was "egregious." Appellant's Br. at 12. He cites United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and argues that "the nature of the conviction[,] beyond the mere fact of the conviction," must either be pleaded by the defendant or proved beyond a reasonable doubt.

We have previously noted that, "[c]onclusions about . . . prior convictions [are] treated the same before [and] after Booker. . . ." United States v. Richardson, 437 F.3d 550, 555 (6th Cir.2006). Our analysis of the sentencing treatment of prior convictions begins with Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court distinguished between sentencing factors and separate criminal offenses. See United States v. Burgin, 388 F.3d 177, 183 (6th Cir.2004); see also United States v. Hollingsworth, 414 F.3d 621, 623 (6th Cir.2005) (following Burgin post-Booker). "The Supreme Court noted, among other things, that `the relevant statutory subject matter is recidivism,' and recidivism `— the prior commission of a serious crime — is as typical a sentencing factor as one might imagine.'" Burgin, 388 F.3d at 183 (internal citations omitted).

After Almendarez-Torres, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court held "other than the fact of a prior criminal conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348. As Smith properly notes in his brief, after Apprendi, the Almendarez-Torres exception is narrow. Appellant's Br. at 11. It is, however, wide enough to encompass the district court's finding here.

In Burgin, the district court found that "prior felonies were committed on different occasions." 388 F.3d at 186. The "different occasions" portion of that finding put the defendant under the reaches of the Armed Career Criminal Act, 18 U.S.C. § 924(e). As such, his sentence was significantly enhanced. We concluded "that the `different occasions' requirement . . . sufficiently comes within the exception in Apprendi for a prior conviction. . . . The `different occasions' language involves the issue of recidivism, `a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.'" Burgin, 388 at 186 (citing Apprendi, 530 U.S. at 488, 120 S.Ct. 2348).

Post-Booker, we continue to rely on Burgin. In United States v. Hollingsworth, 414 F.3d at 623, Joshua Hollingsworth challenged the district court's finding that one of his prior convictions was for a "crime of violence," which increased his sentence. We rejected his argument and expanded our holding in Burgin. "[T]he violent nature of a previous offense `is not a fact that pertains to the commission of the offense for which the defendant is presently charged,' but rather a fact that pertains to a previous offense." Id. at 623 (citing Burgin, 388 F.3d at 186).

Even more recently, we again found that a district judge's determination that a previous crime was a crime of violence was permissible under the Sixth Amendment post-Booker. In United States v. Alford, 436 F.3d 677, 681 (6th Cir.2006), we explained that, "[a]s in Burgin, the district court in this instance was attempting to determine the scope of Alford's recidivism, that is, whether he was responsible for multiple instances of crimes of violence or whether this was only one single, isolated incident."

In the present case, the district judge examined Smith's criminal history and was within his prerogative to consider it "extensive and egregious" and to consider these characteristics in determining whether to deviate from the guidelines range. He considered the history in an attempt to discern the "likelihood that [Smith's] criminal lifestyle will continue." Dist. Ct. Op. and Order at 6. As such, the determination falls under a "traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Apprendi, 530 U.S. at 488, 120 S.Ct. 2348.

Furthermore, the district court's finding did not "increase[] the penalty for a crime beyond the prescribed statutory maximum. . . ." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. The court's finding increased the recommended, advisory range, but that range was still below the statutory maximum penalty. The district court did not act impermissibly.

II. Reasonableness of the District Court's Sentence

We review sentences for reasonableness. United States v. Collington, 461 F.3d 805, 807 (6th Cir.2006). In doing so, we follow a well-trodden path. After United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, (2005), district courts treat the Federal Sentencing Guidelines as advisory rather than mandatory. However, as a court of appeal, we still defer to these guidelines since they reflect "nearly two decades of considered judgment about the range of appropriate sentences," United States v. Buchanan, 449 F.3d 731, 736 (6th Cir.2006) (Sutton, J., concurring), by attaching a rebuttable presumption to a sentence within the Guidelines recommended range. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). That presumption, however, does not imply a presumption against a sentence outside the range. Collington, 461 F.3d at 808. Even so, we give sentences outside the range a closer look. "And, like every court of appeals to consider the question, we take the view that when the district court independently chooses to vary from the advisory guidelines range (whether above or below it), we apply a form of proportionality review:" the greater the variance from the range, the more compelling the justification for variance must be. United States v. Davis, 458 F.3d 491, 496 (6th Cir.2006). Therefore, when a sentence varies significantly from the guidelines range, "extraordinary circumstances" must "justify the full amount of the variance." Id. at 496-97.

The district court below found that the offense level, in light of Smith's criminal history, was inadequate. Smith contests this upward departure. In this case, therefore, we approach the question of reasonableness in two ways. First, if we find that the district court correctly computed the guideline range in its upward departure in light of Smith's "extensive and egregious" criminal history, we will treat the sentence as within the guidelines range and therefore presume it was reasonable. We must still subject the sentence to review, but as noted above, that review is less exacting. If, however, we find that the district court was not justified in its upward departure, and that the advisory range was therefore not properly calculated, we will not attach a presumption of reasonableness to it and approach the levied sentence with more skepticism.

This brief analysis should reveal an obvious conclusion: our review of a district court's upward departure to a higher offense level should mirror our analysis of its variance from the...