United States v. Cain , 223 F. App'x 379 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 21, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-30504
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES CAIN,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-14-ALL
_________________________________________________________________
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
This case comes before us for a second time on appeal.
Finding no error, we affirm.
I.
James Cain was convicted following a jury trial of being a
felon in possession of a firearm, possession with intent to
distribute cocaine base, and using, carrying, and brandishing a
firearm during and in relation to a drug trafficking crime. Prior
to his first sentencing hearing, the Government requested an upward
departure in the light of Cain’s threats to the police and the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
public during his apprehension, his use of a firearm to facilitate
his drug crime, and his lengthy criminal history. The district
court declined to impose a departure, finding that to do so would
violate the Sentencing Guidelines, but awarded the maximum
Guideline sentence. Cain was sentenced to 115 months on the felon-
in-possession count and the intent to distribute count, the terms
to run concurrently, and to a mandatory minimum term of 84 months
of imprisonment on the use of a firearm count, to run consecutively
to the sentence on the other two counts. Cain appealed and we
affirmed his conviction, but vacated and remanded for resentencing
on the basis that the sentence had violated Cain’s Sixth Amendment
rights because of a three-point enhancement under U.S.S.G. §
3A1.2(b).
At the commencement of Cain’s post-Booker resentencing, the
district court stated that it was considering exercising its
discretion to depart upwardly from the Guidelines. The district
court listed Cain’s past offenses, noting that he had been
convicted of a new offense every year or two since the age of
twelve. It further noted that many of his convictions were for
violent or drug offenses. The district court also recognized that
Cain’s most recent offense occurred less than two years following
his release from custody for possession of cocaine. It expressed
its intention, in imposing the original sentence, to provide Cain
with “a more structured life” and with an opportunity for
rehabilitation.
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The district court then heard arguments from both the defense
and the prosecution, and engaged in a lengthy dialogue with Cain
himself regarding his criminal history and his behavior while
incarcerated for the instant offense. It also noted that Cain had
been the subject of three incident reports since his imprisonment.
The court concluded that the shorter sentences that Cain had
received on state convictions had clearly not benefitted him.
The district court then re-computed the Guideline sentence for
Cain’s offenses and noted that it did not take into account the
multiple offender sentence for which Cain would have been eligible
in state court. The court then reiterated Cain’s significant
criminal record and emphasized that a lengthy sentence would permit
him to have long-term drug, mental health, and anger management
counseling.
The district court concluded by reimposing the original
sentence. In making its ruling, the court said “[t]his sentence
reflects ... the seriousness of [Cain’s] prior convictions, the
seriousness of what he would be facing if he was under a state
scheme for multiple offender status, as well as the strong
considerations of Section 3553 of the United States Code, Title 18
in the areas [sic] of recidivism.”
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II.
On appeal, Cain contends that the district court violated 18
U.S.C. § 3553(a)(6) by commenting on the sentence Cain would have
received in state court for analogous conduct; and that the
district court’s upward departure from the guidelines at
resentencing was “presumptively vindictive.” Because Cain raised
no objection to the sentence before the district court, we review
for plain error. Under this standard, Cain must demonstrate clear
or obvious error that affected his substantial rights. United
States v. Fernandez-Cusco, 447 F.3d 382, 385 (5th Cir. 2006).
Neither of Cain’s claims support his position that his sentence was
clearly erroneous.
A.
Cain first argues that the district court’s consideration of
the analogous state court sentence was plainly erroneous. However,
as Cain himself notes, this court has not yet addressed the effect
of the district court’s consideration of state sentencing practices
as a basis for a non-guidelines sentence. Even assuming, arguendo,
that we agree with the Fourth and Eighth Circuits that
consideration of state penalties is an improper application of §
3553(a)(6),** we are reluctant to say that the district court’s
**
See United States v. Jeremiah, 446 F.3d 805, 807-08 (8th
Cir. 2006) (state and federal offenders are not similarly situated
for sentencing purposes); United States v. Clark, 434 F.3d 684, 687
(4th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 2054 (2006) (“The
sole concern of section 3553(a)(6) is with sentencing disparities
among federal defendants”) (emphasis omitted).
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error was plain, given the lack of guidance from our court on this
question.
Even if, however, the district court’s error had been plain,
Cain cannot demonstrate that his substantial rights were affected.
The district court reiterated repeatedly that he felt that a
lengthy sentence was necessary to prevent recidivism given Cain’s
extensive and serious criminal record, and to provide Cain with the
opportunity to undergo the long-term psychological and drug
counseling that would be necessary for his rehabilitation. This
reasoning is sufficient to support the imposition of a non-
Guidelines sentence. United States v. Smith, 440 F.3d 704, 707
(5th Cir. 2006). The district judge has twice given Cain the same
sentence, and Cain has offered us no reason to believe that the
outcome of a third sentencing would be any different. We therefore
find that Cain has failed to establish plain error.
B.
Cain next argues that the district court erred in imposing a
higher sentence on remand, based on the same Presentence
Investigation Report. He claims that because the district court
imposed a higher sentence based on the same criminal history, this
court should presume that the increase was vindictive. We
disagree.
“The purpose of the presumption [of vindictiveness] is to
protect litigants from fear of judicial retaliation following a
successful appeal.” United States v. Reinhart, 442 F.3d 857, 860
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(5th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 131 (2006). A
presumption of vindictiveness does not arise unless the record
indicates a “reasonable likelihood” of vindictiveness. Id. Cain
has failed to point to anything in the record that would indicate
vindictiveness on the part of the district court. In fact, we have
specifically held that a district court’s exercise of its post-
Booker discretion to upwardly depart based on § 3553(a) is “plainly
a valid reason” for a sentencing increase. Id. (internal quotation
mark omitted). The record reflects that the district court
expressly recognized its new discretion in calculating the
Guidelines sentence, and provided a thorough analysis of the §
3553(a) factors in determining that a non-Guidelines sentence was
appropriate. We find neither vindictiveness, nor error in the
district court’s decision to reimpose Cain’s original sentence.
III.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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