United States v. Hymes

• Decision Date: 03 December 2021
• Docket Number: No. 20-5905,20-5905
• Citation: 19 F.4th 928
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney HYMES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

19 F.4th 928

UNITED STATES of America, Plaintiff-Appellee,

v.Rodney HYMES, Defendant-Appellant.

No. 20-5905

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 3, 2021

ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Nashville, Tennessee, for Appellant. Brian Samuelson, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: SUTTON, Chief Judge; SILER and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge.

Rodney Hymes pleaded guilty to possessing crack cocaine with the intent to distribute. The district court initially sentenced Hymes to 188 months of imprisonment. But while Hymes's appeal was pending, we decided United States v. Havis , 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), which cast doubt over the district court's reading of the Sentencing Guidelines in Hymes's case. Accordingly, we vacated Hymes's sentence and remanded for resentencing in light of Havis. The district court then resentenced Hymes to a within-Guidelines sentence of 124 months of imprisonment. On appeal, Hymes finds fault with numerous aspects of the district court's sentencing analysis, including its failure to defer to national sentencing data accumulated by the Sentencing Commission. But as the district court was not required to even consider that data (let alone defer to it), and seeing no other basis to disrupt Hymes's sentence, we affirm.

BACKGROUND

Following an investigation into Rodney Hymes's drug trafficking activities, Chattanooga police officers confronted Hymes as he was sitting in his car in a grocery store parking lot. Hymes attempted to escape by ramming a police car. Eventually, officers arrested Hymes and recovered a wide swath of narcotics from his car. A search of Hymes's home unearthed even more drugs. In total, officers seized 43 grams of crack cocaine, among other drugs. A grand jury indicted Hymes on five different federal drugs and weapons charges. In exchange for dismissal of the remaining charges, Hymes pleaded guilty to one count of possession with the intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

At Hymes's sentencing, much of the focus was on his numerous prior state criminal convictions. They included nearly a dozen motor vehicle offenses, a conviction for evading arrest and theft under $500, another conviction for failing to appear, and two convictions for attempting to possess cocaine for resale. Under then-existing circuit precedent, the latter two convictions put Hymes squarely within the ambit of U.S.S.G. § 4B1.1's career offender provision, which automatically establishes a criminal history category of VI and increases the base offense level for purposes of the Guidelines calculation for offenders with two or more prior controlled substance convictions. See United States v. Evans , 699 F.3d 858, 866–68 (6th Cir. 2012) (holding that a "controlled substance offense" includes attempt crimes).

Hymes asserted that (1) his convictions for attempt crimes did not trigger the career offender enhancement; and (2) in any event, the district court should vary downward given the bulk of Hymes's prior convictions were for traffic offenses. Applying then-existing circuit precedent, the district court deemed Hymes a career offender under § 4B1.1, subjecting him to a Guidelines range of 188 to 235 months in prison. Turning to Hymes's variance argument, the district court initially concluded that it "need not" rule on the issue because § 4B1.1 would place Hymes in the criminal history category of VI regardless of his traffic offenses. But after Hymes's attorney pressed the court to impose a sentence "well below the stated [G]uidelines" (as calculated using the career offender provision), the district court concluded that Hymes had engaged in "considerable" criminal activity—even discounting the driving offenses—to support a within-Guidelines sentence. Presented with a Guidelines range of 188 to 235 months, the district court sentenced Hymes to the very bottom of that range. Hymes appealed.

While Hymes's appeal was pending, we issued United States v. Havis . Havis abrogated prior precedent to hold that attempt crimes did not qualify as controlled substance offenses under § 4B1.1. 927 F.3d at 387. In light of Havis , the government and Hymes agreed that his prior attempt convictions did not qualify as controlled substance offenses under § 4B1.1. Accordingly, we granted the parties' joint motion to remand the case for resentencing in light of Havis . See United States v. Hymes , 18-6041 (6th Cir. Jan. 10, 2020) (order).

With the career offender provision off the table, Hymes faced a reduced (but still significant) Guidelines range of 110 to 137 months imprisonment. Hymes again argued that the district court should vary downward for numerous reasons. Among them, Hymes reiterated that his prior driving offenses artificially inflated his criminal history score. He also noted several post-incarceration developments that, in his view, warranted a variance, including his behavior in prison and the conditions of confinement for federal prisoners during the COVID-19 pandemic.

At the resentencing hearing, the district court, after acknowledging Hymes's right to preserve his argument that his "criminal history was overstated," limited its considerations to variance arguments based on post-sentencing events, deeming any factual or legal conclusions reached in the previous sentencing "settled and resolved." And following a lengthy colloquy regarding Hymes's COVID-19-based argument, the district court rejected Hymes's argument due to concerns of creating unwarranted sentencing disparities. After hearing both Hymes's and the government's arguments for what the appropriate sentence would be within the Guidelines range, the district court imposed a sentence of 124 months' imprisonment.

ANALYSIS

On appeal, Hymes contends that his sentence was both procedurally and substantively unreasonable. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentence may be procedurally unreasonable if, for instance, the district court miscalculates the Guidelines range, considers an impermissible factor during sentencing, or fails to adequately explain the chosen sentence. United States v. Rayyan , 885 F.3d 436, 440 (6th Cir. 2018). In contrast, a substantive reasonableness challenge focuses on the length of the sentence itself, see United States v. Clayton , 937 F.3d 630, 643 (6th Cir. 2019), asking if the sentence is "too long (if a defendant appeals) or too short (if the government appeals)," Rayyan , 885 F.3d at 442.

We generally review a claim of procedural or substantive unreasonableness under the deferential abuse of discretion standard, meaning we will grant relief "when a ruling is based on an error of law or a clearly erroneous finding of fact, or when the reviewing court is otherwise left with the definite and firm conviction that the district court committed a clear error of judgment." United States v. Moon , 808 F.3d 1085, 1090 (6th Cir. 2015) (quoting United States v. Kerley , 784 F.3d 327, 347 (6th Cir. 2015) ). Where a defendant fails to preserve a procedural reasonableness argument, the plain error standard further constrains our review. United States v. Vonner , 516 F.3d 382, 385–86 (6th Cir. 2008) (en banc). Under that "extremely deferential" standard, we reverse only in exceptional circumstances to correct obvious errors that would result in a miscarriage of justice. United States v. Donadeo , 910 F.3d 886, 893 (6th Cir. 2018). With this framework in mind, we turn to Hymes's specific arguments for reversal.

1. Hymes first argues that the district court made a procedural error by declining to vary downward in light of the nature of his criminal history. In particular, Hymes emphasizes that his criminal history score, which was a product of numerous driving offenses, overstated his risk for reoffending. Because Hymes preserved this argument below, we review for an abuse of discretion. Moon , 808 F.3d at 1090.

Hymes is correct that a procedural error occurs when a district court wholly fails to address a defendant's nonfrivolous argument. See United States v. Wallace , 597 F.3d 794, 803 (6th Cir. 2010). The record, however, belies Hymes's claim that the district court did so here. In Hymes's first sentencing, the district court concluded that even "putting [Hymes's driving offenses] aside," he still had engaged in "considerable" criminal activity. These offenses included two "relatively recent" convictions for attempting to possess cocaine for resale, which suggested to the district court that Hymes was unable or unwilling to "live a law-abiding life." To the district court, Hymes's drug crimes showed a risk of recidivism that aligned with the spirit of the § 4B1.1 enhancement and supported a within-Guidelines sentence. At resentencing, the district court relied on these observations about Hymes's risk of reoffending, concluding they were law of the case. In short, the district court did not ignore Hymes's argument. And to the extent Hymes also challenges that court's views on the import of his attempt convictions, the deferential abuse-of-discretion standard forbids us from simply second guessing the district court's reasoning. See United States v. Phinazee , 515 F.3d 511, 521 (6th Cir. 2008).

Hymes counters that the district court's comments in the first sentencing in fact were about whether the career offender provision applied. The record, however, does Hymes few favors: the district court squarely rejected Hymes's distinct argument for a downward variance. In fact, Hymes's counsel conceded during his resentencing that the district court previously had "ruled on" Hymes's criminal history argument separate and apart from the career offender issue and "declined to grant a variance based on that" argument. To be sure, the district court referenced the career-offender...