United States v. Cozad

• Decision Date: 03 January 2022
• Docket Number: No. 20-3233,20-3233
• Citation: 21 F.4th 1259
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroya COZAD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

21 F.4th 1259

UNITED STATES of America, Plaintiff-Appellee,

v.Leroya COZAD, Defendant-Appellant.

No. 20-3233

United States Court of Appeals, Tenth Circuit.

FILED January 3, 2022

Melody Brannon, Federal Public Defender (Kayla Gassmann, Appellate Attorney, with her on the briefs), Kansas City, Kansas, for Defendant-Appellant.

Robert A. Parker, United States Department of Justice, Criminal Division, Appellate Section, Washington, DC (James A. Brown, Assistant United States Attorney, Topeka, Kansas; and Mona Lee M. Furst and Molly M. Gordon, Assistant United States Attorneys, Wichita, Kansas, with him on the brief), for Plaintiff-Appellee.

Before BACHARACH, SEYMOUR, and PHILLIPS, Circuit Judges.

SEYMOUR, Circuit Judge.

This appeal raises one issue: whether, under 18 U.S.C. § 3553(a), it is unreasonable for a district court to impose a harsher sentence based on a defendant's decision to plead guilty without a plea agreement. For the reasons explained below, we hold that it is.

IBackground

Ms. Leroya Cozad was indicted on a single charge of aiding and abetting the making of counterfeit currency in violation of 18 U.S.C. §§ 2, 471. During plea negotiations, she offered to plead guilty in exchange for the government's recommendation that she be sentenced to 48 months' probation. The government countered with an offer to recommend a custodial sentence at the low end of the guideline range. She declined and entered an open plea.

Following her plea, probation prepared a presentence investigation report that recommended a custodial sentence of between 24 and 30 months based on the United States Sentencing Guidelines. The PSR's guideline calculation reflected probation's conclusion that Ms. Cozad had "clearly demonstrated acceptance of responsibility for the offense" and was therefore due a reduction of two levels under § 3E1.1(a) of the guidelines.¹ Neither party objected to the PSR, although both submitted sentencing memoranda advocating for their preferred outcome. Ms. Cozad advocated for a term of probation. The government recommended a custodial sentence of 24 months, the same recommendation it had offered to make during the abortive plea negotiations.

The district court rejected both recommendations and sentenced Ms. Cozad to a prison term of 27 months, the midpoint of the guideline range. In explaining its decision, the district court said the following:

I think sometimes there's sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I've used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement , without the agreements that typically happen in a plea agreement.

That's certainly their right to plead without a plea agreement, but they do not have a right to a low end guideline range sentence, and so it's always been my -- again this isn't a hard-and-fast rule by any means that I apply, but it's always been my practice to say if someone agrees to a plea agreement, the additional conditions that are obtained in that, they're entitled to additional consideration, which is where I start at a low end guideline range.

But in my calculation, without a plea agreement, I have always started with looking more at the mid-tier of the guideline range , which is where I think the guidelines initially envisioned that courts would operate, and not giving them the additional credit for actually entering into a plea agreement to do that.

In this case , having thought about it obviously since our hearing last week, having looked through the briefs that have been filed in this case since that time, as well as additional information I've received from the probation office and going back through the report as well, it's my conclusion that , first of all, Ms. Cozad has not shown demonstration that entitles her to a variance from the guideline recommendation of a custodial sentence, and I cannot find that that variance has been earned; and secondly, in light of the matters that I've just discussed overall, that a low-end guideline range sentence is not appropriate.

Rec., vol. III at 42–44 (emphasis added).

Ms. Cozad's counsel objected, asserting that "the Court has entered its sentence based on Ms. Cozad's choice not to reach a plea agreement with the Government. That's a procedurally unreasonable reason to enter the sentence the Court described." Rec., vol. III at 48. The district court disagreed, leading to Ms. Cozad's appeal.

IIStandard of Review

We review a defendant's sentence "for reasonableness under an abuse-of-discretion standard," which applies whether the sentence falls inside or outside of the guideline range. United States v. Henson , 9 F.4th 1258, 1284 (10th Cir. 2021) (quoting Peugh v. United States , 569 U.S. 530, 537, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ). The reasonableness of a sentence includes a procedural component, which relates to the method by which a sentence was calculated, and a substantive component, which relates to the length of the resulting sentence. Id. In arguing that the district court impermissibly treated her open plea as an aggravating fact warranting harsher punishment, Ms. Cozad raises a procedural reasonableness challenge. See United States v. Sayad , 589 F.3d 1110, 1116 (10th Cir. 2009) ("Generally, a district court's use of an improper factor invokes procedural review."); United States v. Pinson , 542 F.3d 822, 835–36 (10th Cir. 2008) ("While the weight the district court places on certain factors is reviewed for substantive unreasonableness, use of an improper factor is reviewed for procedural unreasonableness.").

IIIDiscussion

At the outset, we think it is clear that the district court sentenced Ms. Cozad more harshly than it otherwise would have but for her decision to plead guilty without entering into an agreement with the government. Although the district court discussed Ms. Cozad's criminal history and her failure to fully comply with the conditions of her bond, it did so while explaining its rejection of Ms. Cozad's request for a noncustodial sentence. See Rec., vol. III at 32, 41–42. When explaining its decision regarding the length of her prison term, the district court first described its customary practice of distinguishing defendants based on the nature of their plea. Then, in accordance with that custom and despite the government's recommendation of a sentence at the low end of the guidelines, the court proceeded to impose a sentence of 27 months at the midpoint of the guideline range. Notably, although the district court stated that its practice was not "a hard-and-fast rule by any means," the court did not explain why it was applying the rule in Ms. Cozad's case. Id. Similarly, although the district court made a passing reference to "the agreements that typically happen in a plea agreement," id. , the court did not specify what those "agreements" are. On this record, therefore, we cannot but conclude that the district court gave Ms. Cozad a longer sentence than she otherwise would have received simply because she pled guilty without a plea agreement. Whether it was permissible for the district court to do so appears to be a question of first impression in this or any other circuit.

The factors a court may consider in determining a defendant's sentence are set by statute. They are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; ...

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established [by the sentencing guidelines] ... ;

(5) any pertinent policy statement [issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2) ] ... ;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). It is a form of procedural error to base a sentence on a factor falling outside the scope of the considerations enumerated in § 3553(a). United States v. Smart , 518 F.3d 800, 803 (10th Cir. 2008).

For reasons of history, as well as congressional intent, appellate courts have interpreted § 3553(a) liberally. Henson , 9 F.4th at 1293 ; see also 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person ... which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."). Nevertheless, a district court does not enjoy boundless discretion with respect to the facts it relies on at sentencing. For example, a factor may be impermissible because its consideration is prohibited by statute, see United States v. Story , 635 F.3d 1241, 1247–48 (10th Cir. 2011) (holding that 18 U.S.C. § 3582(a) prohibited considering the defendant's need for rehabilitation as a factor when deciding whether to impose a term of imprisonment or in determining its length); or because its consideration burdens the exercise of a constitutional right, see United States v. Cabrera , 811 F.3d 801, 808-09 (6th Cir. 2016) (holding that a within-guidelines sentence was procedurally unreasonable because it was based on the defendant's refusal to testify); or because the factor is simply irrelevant to the considerations enumerated in § 3553(a), United States v. Plate , 839 F.3d 950, 957 (11th Cir. 2016) (holding it unreasonable to sentence a defendant to prison based on her inability to pay restitution because this was "not among the factors listed in § 3553(a)"). Even when the fact ostensibly relates to ...