United States v. Ewing
| Decision Date | 26 October 2020 |
| Docket Number | No. 18-6318,18-6318 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSHUA DONALD EWING, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0610n.06
JANE B. STRANCH, Circuit Judge. Joshua Ewing returns to this court seeking to vacate his sentence and remand his case to the district court for resentencing. He challenges his sentence as substantively unreasonable and argues that the district court's departure pursuant to § 5K2.1 was procedurally unreasonable. On this record, we find the term of imprisonment imposed, a 486% increase from the top of Ewing's guideline range, to be substantively unreasonable. We VACATE Ewing's sentence and REMAND the case to the district court for resentencing and resolution of the claim for restitution.
On May 5, 2016, Joshua Ewing was indicted on one count of knowingly and intentionally distributing a mixture or substance containing heroin and fentanyl, the use of which may have resulted in the overdose death of Jeremy Deaton, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The details of the transaction and the circumstances of Deaton's death are chronicled at length in our first opinion regarding his conviction and sentence. United States v. Ewing, 749 F. App'x 317, 319-20 (6th Cir. 2018). Ewing went to trial and a jury found him guilty of the indicted charge. The district court gave Ewing a mandatory life sentence pursuant to the "death results" provision of § 841(b)(1)(C). See Burrage v. United States, 571 U.S. 204, 210 (2014). It also imposed a restitution requirement in the amount of $23,094 to pay for Deaton's funeral.
On appeal, Ewing argued that there was insufficient evidence to support his "death results" conviction. Under Burrage and its Sixth Circuit progeny, the Government had to prove (1) "knowing or intentional distribution of heroin [and fentanyl]"; and (2) use of the drug distributed by the defendant was "a but-for cause of the victim's death." 571 U.S. at 210; United States v. Volkman, 797 F.3d 377, 392 (6th Cir. 2015). We held that the Government failed to show that Ewing sold the drugs that caused Deaton's death, reasoning: "the absence of heroin or heroin metabolites in Deaton's blood and the lack of any evidence or testimony to explain its absence leaves us unable to conclude that the jury's verdict as to the death results [provision] is supported by sufficient evidence." Ewing, 749 F. App'x at 330. We therefore vacated Ewing's death results conviction and remanded the case to the district court to enter judgment on the lesser-included offense of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and for resentencing. Ewing, 749 F. App'x at 331.
On remand, Ewing's revised total offense level (12) and criminal history category (VI) yielded a guideline range of 30 to 37 months of imprisonment. But the Government requested an 18-level upward departure under USSG § 5K2.1, a provision reserved for cases in which "death resulted." Cf. § 841(b)(1)(C). To that end, it presented two witnesses, Agent Timothy Graul and Mike Ward, in an effort to demonstrate that Ewing sold Deaton the drug that led to his death. The Government also suggested that, if it declined to depart, the district court should vary above the guideline range as a result of the court's evaluation of the § 3553(a) sentencing factors.
The district court sentenced Ewing to 15 years of incarceration and 6 years of supervised release. It reasoned:
I have found that 30 to 37 months, in my view, does not properly reflect the seriousness of this offense. I think 5K2.1 says I can increase the matter. The question is, is it a variance . . . or would it be a departure. . . . I'm not sure what the difference is. They said I may go up is what it says in the book. But I look at 3553(a) and there's some seriousness of the offense, people died, a person died.
No mention of the district court's previous restitution order was made at the second sentencing, but the previous order of restitution was entered in the Amended Judgment. Ewing appeals the duration of his prison sentence and the attached restitution order.
We review a criminal sentence imposed by the district court for procedural and substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). A challenge to a defendant's legal eligibility for a sentencing departure is a procedural challenge, whereas the contention that the resulting sentence is "greater than necessary" is a substantive challenge to the sentence. Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020); see also United States v. Moon, 513 F.3d 527, 542-44 (6th Cir. 2008). We review a district court's decision to depart upward or vary from the guideline range for abuse of discretion. United States v. Erpenbeck, 532 F.3d 423, 440 (6th Cir. 2008). In doing so, we assess legal conclusions de novo and factual findings for clear error. United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007).
We begin with Ewing's argument that his sentence is substantively unreasonable. "[T]he substantive reasonableness inquiry determines if the length of a sentence conforms with the sentencing goals set forth in 18 U.S.C. § 3553(a) and asks whether the district judge 'abused his discretion in determining that the § 3553(a) factors supported the sentence imposed.'" United States v. Perez-Rodriguez, 960 F.3d 748, 753 (6th Cir. 2020) (quoting Holguin-Hernandez, 140 S. Ct. at 766). While a sentence is procedurally reasonable where "the trial court follows proper procedures and gives adequate consideration to [the § 3553(a)] and other listed factors," substantive reasonableness review concerns the outcome. Holguin-Hernandez, 140 S. Ct. at 766; see also United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Even if the district court followed proper procedures and adequately considered the appropriate factors, we ask whether the district court nevertheless imposed a sentence that is "greater than necessary." Holguin-Hernandez, 140 S. Ct. at 766-67; see also United States v. Boucher, 937 F.3d 702, 707 (6th Cir. 2019); United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008).
Within the substantive reasonableness inquiry, we must consider "the 'extent of the deviation'" from the guidelines range and "make sure that 'the justification is sufficiently compelling to support the degree of"" divergence. Perez-Rodriguez, 960 F.3d at 755 (quoting Gall, 552 U.S. at 50). "The 'farther the judge's sentence departs [or varies] from the guidelines sentence . . . the more compelling the justification based on factors in section 3553(a) must be.'" United States v. Aleo, 681 F.3d 290, 299 (6th Cir. 2012) (quoting United States v. Poynter, 495 F.3d 349, 352 (6th Cir. 2007)). Imposing a sentence of arbitrary length is substantively unreasonable. United States v. Nichols, 897 F.3d 729, 737 (6th Cir. 2018).
Ewing first asserts that his present sentence is unreasonable because it rests on the tacitly restored conclusion that the drugs he sold caused Deaton's death. On remand, the Government attempted to establish that Ewing caused Deaton's death, but it presented no new evidence. Agent Timothy Graul again testified to the transaction that occurred between Ewing and Deaton. He did not speak to Deaton's cause of death. Mike Ward, a former employee of the Medical Examiner's Office, testified that, in his opinion, cocaine alone did not cause Deaton's death. The district court ruled: "I think that the evidence is sufficient to find that Mr. Ewing sold Mr. Deaton heroin laced with fentanyl." [R 90, PageID 638] The district court did not find that Ewing's drugs caused Deaton's death.
But, whether applied as a departure or justification for a variance, the conclusion that Ewing caused Deaton's death informed the district court's sentencing decision. The district court reasoned:
I look at 3553(a) and there's some seriousness of the offense, people died, a person died, a person died after a person had just gotten out of incarceration on probation. There's got to be some respect for the law. Nobody profits from this. One person died, one person's paying for it with a substantial period of incarceration.
[Id., PageID 654]
Ewing contends that his sentence is substantively unreasonable for the additional reason that, save its discussion of the seriousness of his offense and brief reference to his family, the district court failed to consider the § 3553(a) factors. He argues too, that his 15-year prison sentence was arbitrarily imposed because the district court simply adopted the Government's recommendation of 15 years in prison (the sentence the Government offered—and Ewing rejected—in plea negotiations) without sufficient independent consideration.
Our substantive reasonableness task is to determine whether the district court provided a "sufficiently compelling" rationale to support Ewing's 15-year sentence—a sentence 486% greater than the top of the guideline range. Gall, 552 U.S. at 50. First, the record reveals that the Government failed to establish a causal link beyond a reasonable doubt between the drugs sold and Deaton's death. Ewing, 749 F. App'x at 329-30. The district court on remand unjustifiably assumed, without deciding, that Ewing caused Deaton's death. Second, the district court considered only the seriousness of the offense; it did not consider the remaining § 3553(a) factors. Specifically, the district court gave inadequate consideration to the routine circumstances of the transaction, Ewing's own life history and drug addiction, and the residual uncertainty as to whether the drugs Deaton procured from Ewing caused his death. Third, and perhaps most glaringly, the district court failed to address...
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