United States v. Warren, 051019 FED6, 18-3141

Docket Nº:18-3141
Opinion Judge:COLE, CHIEF JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVIAN WARREN, Defendant-Appellant.
Judge Panel:BEFORE: COLE, Chief Judge; BATCHELDER and DONALD, Circuit Judges. ALICE M. BATCHELDER, Circuit Judge, dissenting.
Case Date:May 10, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DAVIAN WARREN, Defendant-Appellant.

No. 18-3141

United States Court of Appeals, Sixth Circuit

May 10, 2019

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: COLE, Chief Judge; BATCHELDER and DONALD, Circuit Judges.

OPINION

COLE, CHIEF JUDGE.

At Davian Warren's sentencing hearing, both Warren and the government sought a 51-to-63-month sentence-a term that was recommended in Warren's pre-sentence report and that fell within the applicable Sentencing Guidelines range. Instead, the district court imposed the statutory maximum of 120 months' imprisonment. Warren challenges his sentence as substantively unreasonable, arguing that the district court's explanation for its upward variance does not justify doubling the Guidelines-recommended sentence and imposing the statutory maximum. We agree, vacate Warren's sentence, and remand for resentencing.

I.

On April 4, 2017, Warren was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Warren entered a guilty plea on October 2, 2017. Thereafter, Warren's probation officer filed a pre-sentence investigation report ("PSR") with the district court, which concluded that, under the U.S. Sentencing Guidelines Manual (the "Guidelines"), Warren's offense level was 17 and his criminal history category was VI. Thus, the probation officer concluded that, although the statutory maximum was 120 months' imprisonment, the Guidelines- recommended range was between 51 and 63 months' imprisonment. The probation officer also did not identify "any factors as possible grounds for a departure from the applicable sentencing guideline provisions" in the PSR. (PSR, R. 38, PageID 165.)

While incarcerated and awaiting sentencing, Warren and his brother had an altercation that left Warren's brother badly injured. The district court addressed the altercation at Warren's plea hearing, stating that Warren's sentence for possession of a firearm could be "ordered to be served consecutive or concurrent to any other sentence that might be imposed arising out of that incident in prison." (Plea Hr'g, R. 45, PageID 231-32.) At Warren's first sentencing hearing, the district court again discussed the altercation and the impact it might have on Warren's sentence, and it continued the sentencing hearing to a later date, in hopes that the Mahoning County prosecutor's office would complete its investigation into the altercation before the court proceeded with sentencing. Mahoning County prosecutors subsequently informed the parties that they did not intend to charge Warren in connection with the altercation, noting that "the jury may view [the altercation] as a mutual combat situation." (Second Sentencing Hr'g, R. 47, PageID 261-62.)

The district court began the second sentencing hearing by discussing the Guidelines recommendation as described in the PSR. The court asked both parties if they had any objections to the range of 51 to 63 months' imprisonment. Neither did. At the sentencing hearing, the government recommended "a sentence at the highest end of the advisory guideline range." (Id. at PageID 264.) Both Warren and his counsel made statements on Warren's behalf, requesting a within-Guidelines sentence as well.

After Warren finished his statement, the district court asked if he had "any comment about the situation in which you left your brother?" (Id. at PageID 260-61.) Warren's counsel advised him not to respond because his answer could be used against him if the prosecutor's office later decided to go forward with the charge. The court responded that, "whatever may have been the circumstance, however -- whoever precipitated it, whoever caused it, we do know that this is a violent confrontation with terrible consequences, which, again, speaks to the defendant's prior history in terms of his violence [sic] nature." (Id.) Later in the sentencing hearing, the court addressed the altercation again, saying: "According to at least information provided to the court, the defendant assaulted his brother, and I when say assaulted, there was an altercation of some sort. . . . The defendant has not been charged with any conduct related to that offense; however, should the defendant -- should the brother pass away, who knows what the circumstances will be." (Id. at PageID 266-67.) But the court then stated: Even without -- I will just note and strongly make it clear for the record, even without that more than tragic circumstance, is [sic] this defendant's record warrants an upward variance for the reasons we will discuss in a moment. Even without that occurrence, which is severe in nature, that action and that circumstance only serves to in my view confirm the fact that this defendant is a very violent offender and needs to be removed unfortunately from society for an extremely long period of time.

(Id.)

The court next turned to Warren's history and characteristics in line with 18 U.S.C. § 3553(a)(1). It described his criminal history in detail, noting that his 11 prior offenses included carrying a concealed weapon, fleeing from police, safecracking and breaking and entering, attempted felonious assault, discharge of a firearm on prohibited premises, and having a weapon under disability. The record also noted Warren's convictions involved discharging his weapon at a total of two people and one vehicle. The court concluded: He is a high risk offender. He's an individual that must be deterred. 51 to 63 months mean, literally considering the danger this individual poses to the community, is nowhere in my view close to what is required.

The statutory penalty of ten years is the statutory maximum, and the maximum in this case is more than clearly justified for the reasons I've just stated. So pursuant to the Sentencing Reform Act of 1984, and 18, United States Code, 3553(a), it will be the judgment of the court that the defendant is committed to the custody of the Bureau of Prisons for the statutory maximum of 120 months, the ten...

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