United States v. Lewis, 11-6445
| Decision Date | 05 November 2012 |
| Docket Number | No. 11-6445,11-6445 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENNETH BRUCE LEWIS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1147n.06
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
Before: SUTTON, GRIFFIN and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant Kenneth Lewis appeals the sentences imposed following his guilty-plea convictions of failure to update registration under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), and felon in possession of a firearm, 18 U.S.C. § 922(g). Lewis was sentenced to concurrent terms of 24 months' imprisonment, to be served consecutively to his seven-year state sentence for a probation violation. The court also imposed ten years of supervised release with thirteen additional conditions. Lewis appeals, claiming procedural error with regard to the imposition of a consecutive sentence, and constitutional and procedural error in connection with the imposition of three of the thirteen additional conditions of his supervised release. We AFFIRM.
On June 3, 1999, Lewis pled guilty of possession of child pornography, Tex. Penal Code Ann. § 43.26, in Texas state court after several images of child pornography were discovered in his home. He was sentenced to ten years' deferred-adjudication probation on July 8, 1999. Lewis was also found guilty of possession of a controlled substance (cocaine) in a related incident. The pornography conviction rendered Lewis statutorily required to register as a Tier I sex offender under SORNA. Lewis promptly registered as a sex offender in Texas. Approximately four years later, Lewis moved to Michigan and registered as a sex offender with the Detroit Police Department.
In June of 2003, a Texas court issued an arrest warrant for Lewis after he failed to comply with conditions of his probation. Lewis remained at large for approximately seven years. In May of 2010, United States Marshals deputies received information regarding Lewis that led to his arrest. U.S. Marshals interviewed Lewis's estranged wife, Diane Deveaux, who told them that Lewis had used at least two alias identities to avoid capture, had undergone cosmetic surgery to alter his appearance, and had resided near an elementary school. Deveaux also provided the marshals with a gun that belonged to Lewis, which Lewis had told her was issued to him during his time as an undercover IRS agent. At no time was Lewis ever employed as an IRS agent.
On December 15, 2010, a federal grand jury indicted Lewis on one count of failure to update his registration as required by SORNA, and one count of being a felon in possession of a firearm. Lewis pled guilty to both counts on June 8, 2011 without a plea agreement. Lewis's sentencingguidelines range was calculated as a combined offense level of 13 (after an acceptance of responsibility reduction) with a criminal history in category III. This placed his guidelines range between 18 and 24 months of incarceration. Lewis's supervised release term under the guidelines was calculated as between five years and life. The government requested an upward variance or departure from the guidelines range.
After hearing arguments, the court imposed a within-guidelines sentence of 24 months' imprisonment on each count, to be served concurrently with each other but consecutively to the seven-year Texas sentence Lewis was serving for his probation violation, and ten years of supervised release as to count one and three years as to count two, to be served concurrently with each other.
The parties do not agree on the standard of review. Lewis argues that because the district court did not ask for objections to the sentence in accordance with United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004), the abuse of discretion standard applies; the government contends that because Lewis had ample opportunity to object, the plain-error standard applies.
In Bostic, this court articulated a new procedural rule:
[This rule requires] district courts, after pronouncing the defendant's sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised. If the district court fails to provide the parties with this opportunity, they will not have forfeited their objections and thus will not be required to demonstrate plain error on appeal. If a party does not clearly articulate any objection and the grounds upon which the objection is based, when given this final opportunity to speak, then that party will have forfeited its opportunity to make any objections not previously raised and thus will face plain error review on appeal.
Id. at 872-73. The preferred approach is for district courts to elicit any objections after announcing the defendant's sentence, but before adjourning the hearing. Id. at 872 n.6. The purpose of this rule is threefold: (1) to help the court of appeals ascertain whether a party had an opportunity to make additional objections, (2) to allow the district court to correct any error in the first instance, and (3) to create a more reliable record on appeal. United States v. Simmons, 587 F.3d 348, 356-58 (6th Cir. 2009). The Bostic rule is not satisfied when a sentencing judge asks a vague or abstract question regarding whether there is "anything else" for the court to decide. United States v. Bey, 384 F. App'x. 486, 489 (6th Cir. 2010) ().
Because the record is ambiguous regarding whether the district court complied with Bostic, and the standard of review does not affect the result in this case, we will review the challenged sentence for reasonableness using the abuse-of-discretion standard. In reviewing for reasonableness, this court must "ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . ." Gall v. United States, 552 U.S. 38, 51 (2007). The sentencing court must "set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." Rita v. United States, 551 U.S. 338, 356 (2007).
District courts generally have discretion to impose a concurrent or consecutive sentence. Section 3584 requires courts to consider the factors set forth in 18 U.S.C. § 3553(a) and the relevant guideline and policy statements when deciding whether to impose a concurrent or consecutive sentence. 18 U.S.C. § 3584. Section 5G1.3(c) of the sentencing guidelines states that courts may impose a sentence to run concurrently, partially concurrently, or consecutively in order "to achieve a reasonable punishment for the instant offense." U.S.S.G. § 5G1.3(c). The commentary to this section explains that in addition to the § 3553(a) factors, courts should consider:
U.S.S.G. § 5G1.3 cmt. n.3(A). "A court does not abuse its discretion when it makes generally clear the rationale under which it has imposed the consecutive sentence and seeks to ensure the appropriate incremental penalty for the instant offense." United States v. Kitchen, 428 F. App'x. 593, 597 (6th Cir. 2011) (quoting United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009)). This court has cautioned, however, that "this is not unfettered discretion, and the record on appeal should show that the district court turned its attention to § 5G1.3(c) and the relevant commentary in itsdetermination of whether to impose a concurrent or consecutive sentence." United States v. Johnson, 553 F.3d 990, 998 (6th Cir. 2009) (citation and internal quotation marks omitted). It is not necessary that a district court reference section 5G1.3 by its title, so long as it considers each of the factors contained in the application note. United States v. Harmon, 607 F.3d 233, 239 (6th Cir. 2010).
In the instant case, the district court clearly analyzed the § 3553(a) factors. The court addressed the offense conduct by reiterating many of the PSR's undisputed findings. The court also addressed Lewis's personal history, including his history of drug abuse (which the court found to be minor) as well as his educational background. The court further noted that Lewis had served in the Air Force from 1981 to 1984, before receiving an honorable discharge. The court placed particular emphasis on the fact that Lewis had engaged in subterfuge to avoid registering under SORNA, which it found particularly problematic. In addressing the seriousness of the offense and the need to promote respect for the law, the court observed that Lewis's deliberate subterfuge suggested the need for a higher sentence.
When considering the need to protect the public, the court noted that Lewis had never committed a crime of violence. However, the court observed that Lewis's conduct in avoiding SORNA's registration...
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