United States v. Simpson , 209 F. App'x 279 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4170
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHAD ERIC SIMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:01-cr-00189-MU)
Submitted: October 25, 2006 Decided: December 8, 2006
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU OKWARA,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina; Amy E. Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chad Eric Simpson appeals the sentence he received after
we remanded his case for resentencing under United States v.
Booker, 543 U.S. 220 (2005). Simpson pled guilty to conspiracy to
traffic in cocaine, methamphetamine, and Ecstasy (Count One),
aiding and abetting a kidnapping (Count Two), and aiding and
abetting the brandishing of a firearm in violation of 18 U.S.C.
§ 924(c) (2000) (Count Six). Initially, he received concurrent
sentences of 210 months for the conspiracy and kidnapping, and a
consecutive seven-year sentence for the § 924(c) conviction, a
total sentence of 294 months imprisonment. On remand, the district
court imposed a sentence of 181 months for the conspiracy and
kidnapping, with a consecutive seven-year sentence, for a total of
265 months imprisonment. The sentence represents a downward
variance of twenty-nine months from the bottom of the guideline
range. Simpson contends on appeal that the sentence imposed on
remand violated the Sixth Amendment and was also unreasonable. We
affirm.
Simpson first maintains incorrectly that, following
Booker, facts that increase the offense level must be proved beyond
a reasonable doubt. The remedial portion of Booker specifically
rejected this approach. Booker, 543 U.S. at 246. After Booker,
the sentencing court continues to make factual findings concerning
sentencing factors by a preponderance of the evidence. United
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States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied,
127 S. Ct. 121 (2006). In imposing a sentence post-Booker, courts
still must calculate the applicable guideline range, after making
the appropriate findings of fact, and consider the range in
conjunction with other relevant factors under the guidelines and 18
U.S.C. § 3553(a) (West 2000 & Supp. 2006). United States v.
Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct.
2054 (2006). The sentence must be within the statutorily
prescribed range and reasonable. United States v. Hughes, 401 F.3d
540, 547 (4th Cir. 2005).
Although Simpson concedes that the district court
“recognized the Guidelines as advisory,” he argues that the
sentence imposed on remand violated the Sixth Amendment because the
district court did not consider the factors set out in § 3553(a) in
determining his sentence, and thus apparently treated the
guidelines as mandatory. This argument is without merit. The
Sixth Amendment error that occurred at the first sentencing was
cured by Simpson’s resentencing under an advisory guideline scheme.
In resentencing Simpson after Booker, the district court explicitly
treated the guidelines as advisory. The court sentenced Simpson
only after considering the sentencing guidelines, the § 3553(a)
factors, and counsel’s arguments. Although the district court did
not recite facts to support each § 3553(a) factor, the court need
not “explicitly discuss every § 3553(a) factor on the record.”
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United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). There
is no doubt that the court considered the § 3553(a) factors because
the court determined that a variance sentence was appropriate based
on its consideration of the factor set out in § 3553(a)(6), that
is, “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.”
Next, citing the objections to the presentence report he
filed before his first sentencing, Simpson contends that the
district court erred in finding (1) that the object of the
kidnapping was an attempt to kill the victim, (2) that the victim
was physically restrained and received permanent or life-
threatening injury, and (3) that Simpson was not entitled to a
minor role adjustment. In the first appeal, we did not address the
merits of Simpson’s challenge to these sentence enhancements. See
Hughes, 401 F.3d at 556 n.15 (appeals court need not address
claimed guideline calculation errors in every case before vacating
and remanding for resentencing under Booker). To the extent that
Simpson is renewing his challenge to the district court’s
calculation of the guideline range, we conclude that the court’s
findings were not clearly erroneous. The ultimate object of the
kidnapping was to kill the victim, Andy Wolagiewicz, as evidenced
by co-defendant Tommy Payseur’s order that Joshua Caldwell and
Thomas Lee, Jr., take Wolagiewicz into the woods and “do him,” and
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their subsequent attempt to cut Wolagiewicz’s throat. Failing
that, they stabbed him multiple times in the neck so that he would
bleed to death. Wolagiewicz was physically restrained when, after
he endured a beating lasting several hours, Simpson, Caldwell, and
Lee wrapped him in a sheet and plastic trash bags, put him in the
trunk of Simpson’s car, and transported him from North Carolina to
South Carolina, where the attempted murder took place. Although
Wolagiewicz survived, the district court did not clearly err in
finding that his injuries were life-threatening. Simpson had more
than a minor role in the offense because he took part in beating
Wolagiewicz, burned him with a heated knife, and drove the car in
which Wolagiewicz was transported to the site where the attempted
murder occurred.
Finally, Simpson argues that the court erred in finding
that the sentences received by those co-defendants who, like him,
were convicted of kidnapping, averaged 181 months imprisonment, and
that none of them received consecutive 84-month sentences.
According to the district court docket sheet, Payseur was sentenced
to 78 months for the kidnapping, and 84 months consecutive for the
§ 924(c) conviction; Lee received 87 months and a consecutive 84
months; and Caldwell received a sentence of 151 months and a
consecutive 84-month sentence.* Payseur, Lee, and Caldwell all
*
Payseur, Lee, and Caldwell did not plead guilty to
conspiracy. Michael Miller received a sentence of 151 months for
the drug conspiracy.
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received downward departures for substantial assistance. The
record does not reflect what their guideline ranges were before the
departures. Therefore, we cannot say, on this record, that the
district court erred in finding that the co-defendants’ average
sentence was 181 months. The court incorrectly stated that none of
the co-defendants received consecutive 84-month sentences, although
defense counsel had previously informed the court that they did.
The court’s misunderstanding on this point, however, likely
resulted in a lower sentence for Simpson, rather than a higher one,
and does not provide a basis for remanding the case for
resentencing.
Simpson contends that his sentence is unreasonable
because the district court did not indicate how it arrived at the
guideline range or which § 3553(a) factors it considered. He also
argues that his sentence is unreasonable by comparison with the
sentences imposed on his co-defendants. A post-Booker sentence may
be unreasonable for procedural and substantive reasons. “A
sentence may be procedurally unreasonable, for example, if the
district court provides an inadequate statement of reasons . . . .
A sentence may be substantively unreasonable if the court relies on
an improper factor or rejects policies articulated by Congress or
the Sentencing Commission.” Moreland, 437 F.3d at 434 (citations
omitted). While a district court must consider the various factors
in § 3553(a) and explain its sentence, it need not discuss every
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§ 3553(a) factor. Johnson, 445 F.3d at 345. Even if the sentence
exceeds the advisory guideline range, it will generally be deemed
reasonable “if the reasons justifying the variance are tied to §
3553(a) and are plausible.” Moreland, 437 F.3d at 434.
“[A] district court’s explanation should provide some
indication (1) that the court considered the § 3553(a) factors with
respect to the particular defendant; and (2) that it has also
considered the potentially meritorious arguments raised by both
parties about sentencing.” United States v. Montes-Pineda, 445
F.3d 375, 380 (4th Cir. 2006), petition for cert. filed, July 21,
2006 (No. 06-5439). “[I]n determining whether there has been an
adequate explanation, [the Court does] not evaluate a court’s
sentencing statements in a vacuum”; rather, “[t]he context
surrounding a district court’s explanation may imbue it with enough
content for [the Court] to evaluate both whether the court
considered the § 3553(a) factors and whether it did so properly.”
Id.
We conclude that the district court’s explanations of its
reasons for sentencing Simpson satisfied these standards. The
court made findings concerning the guideline range at the first
sentencing which were not challenged substantively at the
resentencing hearing. The record shows that the district court
considered the § 3553(a) factors in imposing the sentence, and
decided that a variance was appropriate because of the lower
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sentences imposed on Simpson’s co-defendants. The court imposed a
sentence that was twenty-nine months lower than the bottom of the
guideline range. Contrary to Simpson’s assertions, we conclude
that the variance sentence imposed by the district court was
“selected pursuant to a reasoned process in accordance with the
law.” United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert.
denied, 126 S. Ct. 2309 (2006). We further conclude that the
extent of the variance was reasonable. The reasons justifying the
variance are plausible and the district court’s explanation
provided sufficient indication that it considered the § 3553(a)
factors and considered the arguments both parties made at
sentencing. See Moreland, 437 F.3d at 434; Montes-Pineda, 445 F.3d
at 380.
Finally, Simpson maintains that the sentence violated the
Sixth Amendment because the district court adhered to the
sentencing enhancements made at the first sentencing hearing based
on its own fact findings, rather than on facts charged in the
indictment or admitted by Simpson. Simpson relies on United
States v. Milam, 443 F.3d 382, 387 (4th Cir. 2006) (holding that a
defendant’s failure to object to a recommendation in a presentence
report cannot be taken as an admission of facts underlying
recommendation). Milam does not apply in this case because,
although Simpson made no objections to the facts in the presentence
report on remand, the district court did not treat those facts as
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admitted. Instead, the court adhered to the findings of fact it
made at the first sentencing. Because the court treated the
guidelines as advisory, there was no constitutional error.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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