United States v. Brian Bass , 320 F. App'x 350 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0258n.06
Filed: April 3, 2009
No. 08-1541
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) APPEAL FROM THE DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
BRIAN BASS, )
)
Defendant-Appellant. )
BEFORE: KETHLEDGE and WHITE, Circuit Judges; and POLSTER, District Judge.*
Dan Aaron Polster, District Judge. After Brian Bass pled guilty to being a felon in
possession of stolen firearms, the district court sentenced him to 96 months’ imprisonment. Bass
challenges the procedural and substantive reasonableness of the district court’s sentence. For the
following reasons, we affirm.
I.
During a two-month period in the summer of 2006, Bass, his younger brother and others
broke into residences in Michigan and Indiana and stole items including firearms which they
subsequently pawned. Bass used his portion of the proceeds to support his ever-increasing crack
cocaine habit. On June 6, 2007, he was charged with two counts of being a felon in possession of
*
The Honorable Dan Aaron Polster, United States District Judge for the Northern District of Ohio,
sitting by designation.
firearms and two counts of possessing stolen firearms.1 He was ordered detained pending trial. On
August 31, 2007, Bass, represented by counsel, pled guilty to all counts without the benefit of a plea
agreement in order to preserve his appellate rights.
On September 6, 2007, Bass was released from custody on an unsecured appearance bond,
subject to electronic monitoring and standard conditions including no use of alcohol. Three months
later, however, Bass was found to have consumed alcohol with a breathalyzer rating of .212. He was
instructed to report to the U.S. Probation Office on January 11, 2008, at which time he showed up
with a breathalyzer rating of .123. Bond was revoked shortly thereafter.
After resolving Bass’ objections to the initial presentence report, a probation officer prepared
an amended presentence report to which neither party had any objections. The probation officer
explained that Bass’ violation of 18 U.S.C. §§ 922(g)(1) and (j) resulted in a base offense level of
20 since he committed the offenses subsequent to sustaining a felony conviction for a crime of
violence (here, breaking and entering a residence). U.S.S.G. § 2K2.1(a)(4)(A). Two levels were
added for possession of at least seven firearms, § 2K2.1(b)(1)(A), and two more levels were added
since all firearms were stolen. § 2K2.1(b)(4)(A). Bass qualified for a two-level downward
adjustment for acceptance of responsibility, § 3E1.1(a), and a one-level downward adjustment for
entering a timely guilty plea, § 3E1.1(b), resulting in a total offense level of 21. The probation
officer calculated 25 criminal history points, reflecting a fourteen-year history rife with charged and
uncharged criminal conduct, assaultive behavior, substance abuse, thievery and conduct
1
The firearms were both 12-gauge pump-action shotguns.
2
demonstrating utter disrespect for the law.2 Two criminal history points were added because the
instant offenses were committed less than two years following Bass’ release from custody for
domestic violence. The total of 27 criminal history points were more than twice the number
necessary to put Bass in criminal history category VI. The probation officer determined that the
applicable guidelines sentencing range for total offense level 21, criminal history category VI, was
77 to 96 months. Although noting that the 27 criminal history points Bass had attained by age 29
could support an upward departure, the probation officer nonetheless recommended a sentence at
the high end of the applicable advisory range (i.e., 96 months) on each count, to run concurrently.
After reviewing the presentence report, Bass’ counsel filed a sentencing memorandum
seeking an unspecified sentence below the 77-month minimum of the applicable advisory guideline
range. Attributing all of Bass’ criminal behavior to his substance abuse problem, counsel argued that
a below-guidelines sentence was warranted because Bass had a marketable skill as a mason and was
capable of earning a decent living; he was a good parent with a close bond to his (then 7-year old)
daughter; he could apply himself to accomplishing tasks, having earned two GEDs; he was having
some success controlling his addictions; and he made a good-faith effort to offer substantial
assistance to the government. In soliciting a below-guidelines sentence, counsel repeatedly asserted
that Bass never spent a day in “prison” for any of his state crimes – explaining that even a short
prison sentence would have a more stark impact on him than it would on “veteran prisoners.” The
record shows, however, that Bass spent many months in “jail” for his numerous state-court
2
Conduct demonstrating disrespect for the law includes a multitude of probation violations,
contempt citations, sanctions for failure to appear, violations for driving on a revoked or suspended
license (at times while under the influence or fleeing police officers), and disregard of a restraining
order.
3
convictions.
At the sentencing hearing, the district court found that the probation officer correctly
calculated the applicable advisory guideline range and ascertained from counsel that there were no
objections to the calculations and range. The court also confirmed that neither party had requested
a departure. The court explained the sentencing standards to Bass in the following manner.
Mr. Bass, I’m sure [defense counsel] has indicated to you that the guidelines
are advisory. But that I must consult them and give them due consideration in
reaching a sentencing decision in this case.
And in furtherance of that, I’m also required to impose a sentence that is
sufficient but not greater than necessary to comply with the purposes of Section
3553(a). And there are a number of factors to be considered in that regard, including
the nature and circumstances of the offense, and the history and characteristics of you
yourself.
The offense here, the offense conduct are reflective of Mr. Bass’s admittedly
strong addiction to illegal substances and his need for money to supply his addiction.
And to that extent, when we look at the circumstances of the offense, the
pawning of weapons to obtain money, knowing that the firearms were stolen, I think
puts this in a classification of a relatively serious offense.
And in looking at Mr. Bass’s extensive criminal history beginning at the age
of 14, and continuing almost in an unbroken string until now when he is I believe 30
or very close to 30, I think we have to put Mr. Bass in a fairly serious category as
well in terms of fashioning a sentence that is reflective of the seriousness of the
offense and the particular characteristics of the offender.
The factors considered under 3553(a) have to reflect a proportionate sentence,
again looking at the seriousness of the circumstances of the offense, the history of the
defendant.
It should reflect an attempt at least to promote respect for the law, which
given the nature of Mr. Bass’s lengthy record, which includes significant amounts of
theft offenses and violent offenses and offenses involving weapons, it seems it might
take a little while to instill the kind of respect for the law that we would hope to see
in citizens.
We need to consider the necessity for punishment. And, again, in what is a
seemingly consistent pattern of defendants who come to federal court after having
had extensive exposure to the criminal justice system in the state courts and not
having had very significant consequences flow from that, then they get to federal
court and all of a sudden they are looking at very significant consequences.
And those consequences include, among the factors of 3553(a), the necessity
for punishment, deterrence, both of the individual and others, the necessity to protect
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the public from further crimes, and in some cases, to provide the defendant with
needed medical, educational and correctional treatment.
And all of those things in a case, I think, involving someone with the
seriousness of Mr. Bass’s criminal, lengthy criminal history, all of those are
significant factors to be taken into account.
J.A. 53-54.
The court then heard argument from both parties. Bass’ counsel reiterated the arguments set
forth in the sentencing memorandum and asked for a two-level reduction in Bass’ total offense level
for substantial assistance, stating this would place Bass in an advisory guideline range of 63 to 78
months – and sought a sentence below3 or in the low end of that range. The Government attorney
strongly disagreed. He acknowledged that Bass attempted to make a proffer, but that it was a
disappointment. He noted that he did not seek an upward departure, which he would typically do
when faced with a 30-year old defendant with 27 criminal history points, because he thought Bass
had potential and sincerely wanted to change. But it was his opinion that the 77 to 96 month range
calculated by the probation department was “absolutely appropriate” given the seriousness of the
offenses, noting, “This isn’t just a typical felon in possession case. The nature of how he came
about having the guns, and breaking into people’s homes, and things, makes this a more serious
offense. Fortunately no one was home and no one got hurt.” J.A. 61.
After argument concluded, the district court continued with its explanation:
. . . Well, it does strike me that Mr. Bass is sincere, and apparently he has impressed
the government with his sincerity and his desire to change.
But, again, given the seriousness of the offense, and in addition to that, in
looking back through his criminal history, what really troubles me, in addition to the
fact that weapons have been involved several times, in addition to this instance, is the
3
Although counsel had answered affirmatively when the court earlier sought to confirm “[t]here has
been no request for any departure under the guidelines,” counsel nevertheless argued for a departure at
sentencing.
5
violence that he seems to be prone to. Again, presumably as a result of the addiction.
Several domestic violence situations, as I recall, assault and battery, . . ..
These are things that, while they didn’t result in any significant jail or prison time in
the state system, are suggestive of patterns that really need to be addressed.
[Defense counsel] suggests a two-level departure, and frankly, I just - - I can’t
see that either as a departure or as a variance based on what is in the file.
So we’re dealing with a guideline advisory guidelines range of 77 to 96
months. That’s a long time. And I think that the recommendation at the top end of
the guidelines makes some sense for all of the reasons that I have touched upon here.
And I’ll tell you honestly, Mr. Bass, it really does seem you sort of have a
Jekyll and Hyde element to your background, and apparently [the Assistant U.S.
Attorney] has seen it too. I mean you can be a productive person, you have a skill,
one that is I think relatively in demand and relatively decent paying.
You have a youngster that you apparently feel genuine care for.
But then you have this other side that seems to, I don’t know, disregard all of
that.
And so the net result is that there has to be some significant reckoning of
those two sides of you. And hopefully a lengthy period of incarceration will help to
bring out the stronger, good parts, and suppress those bad parts.
J.A. 63-64.
The district court then sentenced Bass to 96 months in prison on each count, to be served
concurrently. The court recommended intensive substance abuse treatment, anger management
and/or mental health counseling and vocational counseling. In response to the court’s question
whether the parties had “any legal objections to the sentence as imposed,” defense counsel
responded, “No, your Honor.” J.A. 66.
II.
Post Booker, a district court crafting a sentence must consider the applicable advisory United
States Sentencing Guidelines range, as well as the other factors listed in 18 U.S.C. § 3553(a),4 in
4
In addition to consideration of the advisory Guidelines range, the § 3553(a) factors include
the nature and circumstances of the offense; the history and characteristics of the defendant; the
kinds of sentences available; pertinent policy statements issued by the Sentencing Commission; the
need to avoid unwarranted sentence disparities and the need to provide restitution to the victims.
6
reaching a sentence that is sufficient, but not greater than necessary, to comply with the purposes of
§ 3553(a)(2).5 United States v. Lanesky, 494 F.3d 558, 561 (6th Cir. 2007). The district court must
begin by correctly calculating the applicable advisory guidelines range. Gall v. United States, – U.S.
–, 128 S. Ct. 586, 598, 169 L. Ed. 2d 445 (2007) (citing Rita v. United States, 551 U.S. 338, 127 S. Ct.
2456, 168 L. Ed. 2d 203 (2007)) (“As a matter of administration and to secure nationwide consistency,
the Guidelines should be the starting point and the initial benchmark.”) After giving the parties an
opportunity to argue and recommend an appropriate sentence, the district court must consider the
remaining § 3553(a) factors to determine whether they support the recommended sentences. Gall,
128 S. Ct. at 596. The court may not presume the guidelines range is reasonable; rather, it must make
a fact-based individualized assessment. Id. at 597; Nelson v. United States, – U.S. –, 129 S. Ct. 890
(2009). After determining an appropriate sentence, the court must adequately explain the chosen
sentence to allow for meaningful appellate review. Id. (citing Rita, 127 S.Ct. at 2468)). In short, the
district court must “properly calculate the guidelines range, treat the guidelines as advisory, consider
the § 3553(a) factors and adequately explain the chosen sentence.” United States v. Grossman, 513
F.3d 592, 595 (6th Cir. 2008) (citing Gall, 128 S. Ct. at 597).
Generally speaking, the appeals court reviews the district court’s sentence for reasonableness,
using an abuse-of-discretion standard. United States v. Alexander, 543 F.3d 819, 821 (6th Cir.
2008). The sentence must be both procedurally and substantively reasonable. Id. at 821-22. In
evaluating procedural reasonableness, we must determine whether the district court properly
calculated the guidelines range, treated the guidelines as advisory, considered the § 3553(a) factors,
5
Those purposes are deterrence; protection of the public; the need to reflect the seriousness
of the offense, promote respect for the law, and provide just punishment; and rehabilitation.
7
and adequately explained the sentence. United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2008).
In assessing substantive reasonableness, we consider whether the district court imposed a sentence
sufficient, but not greater than necessary, to comply with the purposes of the statutory sentencing
scheme. Alexander, 543 F.3d at 822 (citing 18 U.S.C. § 3553(a)). In this circuit, we accord a
sentence within a correctly calculated guidelines range a presumption of reasonableness. United
States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).
Where, however, the defendant has been given the opportunity to object to the district court’s
explanation for the sentence but does not do so, we review only for plain error. United States v.
Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). Under the plain-error standard, the defendant can
prevail only if there was an error below that was clear or obvious, which error affected substantial
rights and seriously affected the fairness, integrity or public reputation of the judicial proceeding.
Id. at 873.
III.
Bass cannot show that the district court committed a procedural error when determining his
sentence. The record shows that the district court strictly followed the procedure outlined by the
United States Supreme Court in Gall in reaching Bass’ sentence. The court properly calculated the
applicable guidelines range (to which there was no objection), treated the guidelines as advisory,
considered the § 3553(a) factors, and thoroughly explained the chosen sentence. United States v.
Sexton, 512 F.3d 326, 331 (6th Cir. 2008) (citing Gall, 128 S. Ct. at 597).
Nor can Bass show a substantive error. Bass’ argument that the district court overweighed
his negative traits and underweighed his positive traits in fashioning the 96-month prison sentences
fails under either abuse of discretion or plain error analysis. The record shows that in rejecting Bass’
8
request for leniency and sentencing him to the top of the applicable advisory guidelines range, the
district court fairly considered Bass’ negative and positive character traits. The court explained that
Bass’ penchant for violence and substance abuse caused him to entirely disregard his positive traits,
observed that the many jail sentences Bass served for his state crimes had no apparent deterrent
effect on his criminal behavior and determined that Bass had some significant reckoning to do. The
court concluded that a lengthy sentence with intensive substance abuse treatment and anger
management and/or mental health counseling would, hopefully, help Bass to overcome his criminal
tendencies. Because the district court strictly complied with the proper sentencing procedure and
did not unfairly consider Bass’ negative and positive character traits, we affirm.
9