U.S. v. Vonner

• Decision Date: 29 June 2006
• Docket Number: No. 05-5295.,05-5295.
• Citation: U.S. v. Vonner, 452 F.3d 560 (6th Cir. 2006)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin VONNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

452 F.3d 560

UNITED STATES of America, Plaintiff-Appellee, v.Alvin VONNER, Defendant-Appellant.

No. 05-5295.

United States Court of Appeals, Sixth Circuit.

Argued: March 14, 2006.

Decided and Filed: June 29, 2006.

ARGUED:

Stephen Ross Johnson, Ritchie, Fels & Dillard, Knoxville, Tennessee, for Appellant.Charles E. Atchley, Jr., Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Stephen Ross Johnson, Ritchie, Fels & Dillard, Knoxville, Tennessee, for Appellant.Charles E. Atchley, Jr., Assistant United States Attorney, Knoxville, Tennessee, for Appellee.

Before: MARTIN, SILER, and CLAY, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which CLAY, J., joined.

SILER, J.(pp. 569-571), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Alvin Vonner was charged with and later pled guilty to distributing cocaine.Vonner now appeals his sentence claiming that it violates the Sixth Amendment pursuant to the Supreme Court's holding in United States v. Booker,543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621(2005), and that it is unreasonable.For the reasons discussed below, we VACATE Vonner's sentence and REMAND the case for resentencing consistent with this opinion.

I.

On December 9, 2003, a grand jury indicted Vonner on one count of distributing at least five grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).On January 27, 2004, Vonner pled guilty to the charge pursuant to a plea agreement with the government.In anticipation of sentencing, a Presentence Report was prepared and disclosed to the parties on March 22.A revised version of the Report was subsequently disclosed on June 21.The Report indicated that the relevant statutory provisions authorized a sentence of not less than five years and up to forty years imprisonment.The Report also recommended a base offense level of twenty-nine and, based primarily upon Vonner's prior conviction for second-degree murder, a criminal history category of III.This amounted to a guideline range of 108 to 135 months incarceration.The defense filed a notice of no objection to the Report.¹

Sentencing was delayed in anticipation of the Supreme Court's ruling in Booker.Following Booker, both the defense and the government filed a sentencing memorandum with the district court.At sentencing, the defense introduced extensive evidence that it claimed made a sentence lower than the advisory guideline range proper under 18 U.S.C. § 3553(a).This evidence related to: (1) Vonner's traumatic childhood; (2) the impairment to Vonner as a result of his long history of alcohol and drug abuse; (3) the circumstance surrounding Vonner's involvement in selling narcotics; (4) the conditions of his presentence confinement; (5) Vonner's cooperation and assistance to the government.

Vonner's Childhood

The defense introduced evidence that Vonner suffered abuse, abandonment, violence, neglect, and trauma as a young child.The record indicates that Vonner was the fourth of his mother's ten children.Vonner grew up in poverty and his mother would often prostitute herself to get money for food.Unable to make ends meet, Vonner and his siblings shoplifted even basic necessities.As an eight year old, Vonner was caught shoplifting underwear.

Vonner's mother was also a heavy drinker who failed to supervise her children properly.As a result, Vonner was twice placed in foster care.He was first placed in foster care at the age of four when his mother stabbed a boyfriend in the chest and then absconded to avoid arrest, leaving her children without adult supervision.Vonner remained in foster care until age six.Later, Vonner was again placed in foster care from ages seven to eight after the police received information that Vonner and his siblings were being left alone in the home for extended periods of time.

Vonner's father was intermittently present in Vonner's life, due in large part to Vonner's father's own history of incarceration which included convictions for murder, robbery, and weapons possession.When Vonner's father was at home, he was often drunk and violent.As a child, Vonner was beaten by his father with both belts and fists.

Vonner's Drug and Alcohol Abuse

The defense also presented evidence that Vonner's traumatic childhood caused emotional and mental impairment to Vonner and led to his extensive history of alcohol and drug abuse.As noted above, both of his parents were heavy drinkers which led to chaos and violence in the home.At age eight, Vonner first used alcohol that he obtained from his father's stash.By age fourteen, Vonner was using alcohol and marijuana on a daily basis.By age sixteen, Vonner was using amphetamines administered intravenously.He was under the influence of drugs and alcohol when at age seventeen he was involved in the acts that led to his conviction in state court for second-degree murder.Following this conviction, Vonner was incarcerated for twenty-three years.While in prison, Vonner continued to abuse drugs and once he was released, Vonner consumed large quantities of beer and marijuana daily.

Circumstances Surrounding Vonner's Involvement in Drug Distribution

The defense also argued that the nature of Vonner's drug offenses should be considered as mitigating evidence in this case.The defense argued that because Vonner was incarcerated from his teens to his early forties, when he was released from prison Vonner had no money and no means of supporting himself.Vonner alleged that he attempted to find employment but was unsuccessful because of his criminal history and lack of any trade or skill.Thus, Vonner's only choice was to turn to his family for assistance.Unfortunately his family was involved in illegal drugs and the only assistance they provided was to involve Vonner in this illegal activity which led to the charges at issue in this case.Vonner alleged that as soon as he was able to procure employment as a bouncer he stopped selling drugs.Vonner alleged that the only reason he was ever involved in selling narcotics was because nobody was willing to hire him when he was first released from prison and he was destitute.

The Conditions of Vonner's Pretrial Confinement

The defense offered evidence regarding Vonner's presentencing confinement that it argued counseled in favor of a lesser sentence.From his arrest on December 16, 2003 until his sentencing hearing on February 7, 2005, Vonner was detained at the Blount County Detention Center.Blount County Detention Center is a local county jail that contracts with the U.S. Marshals Service in Knoxville to house federal detainees.The conditions at the Blount County Detention Center were much harsher than those at a Bureau of Prisons facility.Specifically, based on Vonner's prior criminal history for the nearly fourteen months that Vonner was held at the Blount County facility, he was kept on lockdown twenty-three hours a day.In addition, the defense introduced evidence showing that Vonner was not a behavioral problem for the jail and regularly attended church services.

Vonner's Cooperation and Assistance Provided to the Government

At sentencing, Vonner's defense counsel presented evidence regarding the cooperation and assistance Vonner provided the government and argued that it supported a lesser sentence.Prior to the sentencing hearing, Vonner had provided government agents with information which could be helpful to the government in investigating and prosecuting other individuals.The government agent with whom Vonner spoke informed defense counsel that the information provided by Vonner was good and that it was valuable information to the government.

The government countered against Vonner's argument for a reduced sentence, asserting that based on Vonner's offense and his serious criminal history, a sentence within the advisory guideline range was proper under 18 U.S.C. § 3553(a).The government asserted that the mitigating evidence provided by defense counsel was insufficient to justify a lesser sentence.Following the parties's arguments, the district court took a short recess to consider the sentencing matters.When the district court returned, he sentenced Vonner to 117 months imprisonment, a sentence in the middle of the advisory guidelines range.The only explanation the district judge provided as to his reasons for selecting this sentence was:

With respect to the sentence in this case, the Court has considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines, as well as the other factors listed in 18 United States3553(a).Pursuant to Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant, Alvin George Vonner, is hereby committed to the custody of the Bureau of Prisons for a term of imprisonment of a hundred and seventeen months.It is felt that this term is reasonable in light of the aforementioned, in light of the aforementioned factors and is a sentence, furthermore, that will afford adequate deterrent and provide just punishment.

Vonner then filed this timely appeal of his sentence.

II.

Vonner alleges that his sentence was increased based upon a drug quantity calculation that Vonner did not admit to in his plea agreement.Specifically, the drug quantity calculation in the Presentence Report increased the appropriate advisory Guideline range from between 70 months and 108 months to between 87 months and 135 months.Vonner alleges that this increase in the advisory guideline range violated Vonner's Sixth Amendment rights in that it increased his sentence based on facts that had not been proven beyond a reasonable doubt to a jury or admitted by Vonner.

The district court did not violate Vonner's Sixth Amendment rights in this case.Vonner's brief relies upon the legal misconception that Booker held that judge-found fact can never...