United States v. Carson ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0436p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-4015
v.
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RONALD CARSON, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 04-00626—Donald C. Nugent, District Judge.
Argued: November 1, 2006
Decided and Filed: November 27, 2006
Before: MOORE, ROGERS, and GIBSON, Circuit Judges.*
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COUNSEL
ARGUED: Jeffry F. Kelleher, JEFFRY F. KELLEHER & ASSOCIATES, CO., Cleveland, Ohio,
for Appellant. Joseph P. Schmitz, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio,
for Appellee. ON BRIEF: Jeffry F. Kelleher, JEFFRY F. KELLEHER & ASSOCIATES, CO.,
Cleveland, Ohio, for Appellant. Arturo G. Hernandez, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee.
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OPINION
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ROGERS, Circuit Judge. Ronald Carson appeals the 168-month sentence imposed following
his guilty plea to charges of possession with intent to distribute heroin and attempted possession
with intent to distribute heroin. The district court determined that Carson was a career offender
based on two prior drug convictions in Ohio. Carson maintains that the state court convictions are
related under the Sentencing Guidelines because they were functionally consolidated and, therefore,
that these convictions cannot support a career offender enhancement. Carson also maintains that
the sentence imposed is unreasonable because the district court treated the Sentencing Guidelines
*
The Honorable John R. Gibson, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
1
No. 05-4015 United States v. Carson Page 2
as mandatory and failed to consider the factors outlined in 18 U.S.C. § 3553(a). Because the district
court did not err in determining that Carson is a career offender and because the sentence imposed
is reasonable, we affirm.
I.
Ronald Carson was indicted under 21 U.S.C. §§ 841(a) and (b)(1)(A) and § 846 for
conspiracy to possess with intent to distribute heroin and attempted possession with intent to
distribute heroin. Authorities arrested Carson when he went to pick up a suitcase at the behest of
a friend who was a heroin dealer. Unbeknownst to Carson, authorities intercepted a drug mule upon
her arrival in the United States and she cooperated with the authorities. Thus, Carson walked into
a sting operation and was arrested when he arrived to pick up the heroin.
Carson pleaded guilty to both counts and reserved the right to appeal the district court’s
determination of Carson’s career offender status and criminal history determination. Carson
objected to the criminal history determination in the pre-sentence report (PSR) prepared by U.S.
Probation. The PSR included information about two prior felony convictions for drug trafficking
in Ohio and, pursuant to § 4B1.1 of the Sentencing Guidelines, determined that Carson was a career
offender, mandating a criminal history category of VI.
The district court conducted a sentencing hearing on July 14, 2005. The focus of the hearing
was Carson’s prior drug trafficking convictions in Ohio that were the basis for the career offender
determination. Case 1 stemmed from Carson’s arrest by Cleveland police on March 2, 1996, which
was the result of complaints that Carson was selling heroin. This arrest resulted in Carson’s
indictment for preparing drugs for shipment and for possession of heroin in violation of Ohio’s drug
trafficking statute. Case 2 stemmed from a sale of heroin made to an informant working for the
federal Drug Enforcement Administration on March 25, 1995. The DEA did not arrest Carson
following this sale, but handed the case over to Ohio authorities after learning about the indictment
against Carson in Case 1. Ohio then indicted Carson for preparing drugs for shipment and for
possession of heroin in violation of Ohio law. Both of the Ohio cases were assigned to the same
judge. Carson entered into a plea agreement with Ohio prosecutors covering Case 1 and Case 2 and
pleaded guilty. The journal entries in the Ohio proceedings reflect that Carson entered into a plea
agreement covering all counts in both cases, with specified sentences for each count to run
consecutively, for a total sentence of 9 1/2 years. The journal entries for both cases show that the
Ohio court referred Carson to the psychiatric clinic on June 3, 1997, and set sentencing in both cases
for July 21, 1997, at the same time. The judge imposed sentences in each case at one sentencing
hearing conducted on July 21, 1997. Carson received a sentence of five years in Case 1 and a total
sentence of four years in Case 2, representing two years for each count in Case 2. The sentences
imposed in Case 1 and Case 2 were consecutive.
Carson testified at his sentencing hearing in the district court that he entered one guilty plea
in Ohio state court and that plea negotiations focused on one total sentence that would be imposed
rather than individual sentences for each count in Case 1 and Case 2. The district judge concluded
that Carson’s Ohio convictions were not related for purposes of the Sentencing Guidelines and that
Carson was a career offender. The district court imposed a sentence of 168 months, a sentence at
the bottom of the relevant Guidelines range. Carson timely appealed his sentence.
II.
The district court’s determination that Carson’s prior drug convictions were not related for
Guidelines purposes is reviewed for clear error. United States v. Horn, 355 F.3d 610, 613 (6th Cir.
2004). The sentence imposed by the district court is reviewed for reasonableness and must be
affirmed if it is reasonable. United States v. Williams, 436 F.3d 706, 707 (6th Cir. 2006). A
No. 05-4015 United States v. Carson Page 3
sentence falling within the relevant Guidelines range is entitled to a rebuttable presumption of
reasonableness. Id. at 708.
A. Relatedness of Carson’s Ohio Convictions
The district court’s conclusion that Carson’s Ohio drug convictions were not related was not
clearly erroneous because Carson has not shown an “explicit indication that the trial court intended
to consolidate the prior convictions.” Horn, 355 F.3d at 614.
Under the Sentencing Guidelines, prior sentences that are related count as a single sentence.
U.S.S.G. § 4A1.2(a)(2). An application note in the Guidelines provides that “prior sentences are
considered related if they resulted from offenses that . . . were consolidated for trial or sentencing.”
U.S.S.G. § 4A1.2, cmt. n.3. Carson maintains that, although there was no formal order of
consolidation in the Ohio court, his cases were functionally consolidated. Although a formal
consolidation order is not necessary for cases to be functionally consolidated for sentencing, United
States v. Hazelwood, 398 F.3d 792, 797 (6th Cir. 2005), this court has consistently held that there
is no functional consolidation “‘when offenses proceed to sentencing under separate docket
numbers, cases are not factually related, and there was no order of consolidation,’” United States
v. McAdams, 25 F.3d 370, 374 (6th Cir. 1994) (quoting United States v. Coleman, 964 F.2d 564, 567
(6th Cir. 1994). See also United States v. Cook, 174 Fed. Appx. 870, 872 (6th Cir. 2006)
(unpublished); Hazelwood, 398 F.3d at 797-98; Horn, 355 F.3d at 614. There must be “some
explicit indication that the trial court intended to consolidate the prior convictions.” Horn, 355 F.3d
at 614.
Carson relies on the Supreme Court’s decision in Buford v. United States, 532 U.S. 59(2001), to support his contention that the Ohio cases were consolidated for sentencing. In Buford,
the Supreme Court held that the appropriate standard of review of the consolidation question is one
of deference. 532 U.S. at 66. Carson maintains that the Supreme Court in Buford embraced the
Seventh Circuit’s standard for functional consolidation—that convictions are functionally
consolidated when “the convictions were factually or logically related, and sentencing was joint,”
532 U.S. at 61—and that this definition should apply in his case. However, the question before the
Supreme Court in Buford was the applicable standard of review, not whether the Seventh Circuit’s
definition of functional consolidation was correct. Furthermore, the law of this circuit regarding
functional consolidation, while not the same, has significant elements in common with that of the
Seventh Circuit, including questions of factual relatedness and whether there are indications in the
record regarding the trial court’s intent to consolidate cases for sentencing.1
Carson argues that his Ohio drug convictions were factually related because throughout 1995
and 1996 he maintained a consistent practice of buying large amounts of heroin, selling some to
support his own addiction, and using some himself. Because this practice was “part and parcel of
[his] way of life,” Carson argues, the offenses are factually related. However, the mere fact that a
drug dealer who is also an addict maintains a consistent practice of buying large amounts of drugs
and selling some and using some does not render every conviction stemming from that activity
factually related. Carson has shown nothing more than that he was a heroin addict who sold drugs
to support his habit. Given that Carson’s convictions in Ohio stemmed from arrests for activities
1
Although Carson appears to be of the opinion that the Seventh Circuit’s definition of functional consolidation
would lead to a more favorable result in his case, we note that the Seventh Circuit, post-Buford, has held that
simultaneous disposition merely for the sake of administrative convenience is not consolidation, and that “in the absence
of a formal order of consolidation, we will deem sentences functionally consolidated only where there is a showing on
the record of the sentencing hearing that the sentencing judge considered the cases sufficiently related for consolidation
and effectively entered one sentence for the multiple convictions.” United States v. Best, 250 F.3d 1084, 1095 (7th Cir.
2001) (internal quotation marks omitted).
No. 05-4015 United States v. Carson Page 4
that occurred a year apart and were the result of investigations by different law enforcement
agencies, Carson has not established that his Ohio convictions were factually related. See United
States v. Mays, 100 Fed. Appx. 468, 469 (6th Cir. 2004) (unpublished) (holding that the defendant’s
prior drug convictions were not factually related because the offenses occurred on three separate
dates in two different counties).
Carson also argues that his sentencing in the Ohio cases was joint because (1) the plea
agreement treated the two cases as one for which the parties negotiated a single sentence; (2) Carson
entered one guilty plea; (3) the record indicates that the state court judge joined the cases for
sentencing with each plea entry setting sentencing in both cases at the same date and hour; and
(4) Carson was sentenced at one hearing in accordance with the plea agreement.
Carson has failed to establish that sentencing in Case 1 and Case 2 was joint and that his
cases were consolidated for sentencing because he has not pointed to any explicit indication in the
record showing that the trial judge intended to consolidate the cases for sentencing. The record
reflects that there were two separate cases under two separate docket numbers, that Carson received
specific sentences for each count in each case, that there was no consolidation order, and that the
sentences were consecutive. Although the question of relatedness is a fact-specific inquiry,
Hazelwood, 398 F.3d at 797, prior case law from this circuit supports the district court’s
determination that Carson’s sentencing was not joint and that the Ohio convictions were not related
for Guidelines purposes. It is simply not enough to show that prior cases were handled at the same
time by the same judge in state court. For example, in Horn, this court rejected the defendant’s
argument that his prior convictions were functionally consolidated under circumstances similar to
those in the present case. Horn was arrested and charged at the same time for committing different
robberies; he made an initial appearance for the different offenses at the same time; the different
cases were set for trial on the same date; Horn entered a guilty plea to the different offenses on the
same day; and the court sentenced Horn for both offenses on same day, with the sentences to run
concurrently. 355 F.3d at 614; see also Cook, 174 Fed. Appx. at 872 (refusing to find functional
consolidation where there was one sentencing hearing, a joint plea bargain, and the imposition of
concurrent sentences). There is simply nothing in the record to distinguish Carson’s sentencing in
the Ohio proceedings from prior cases in this circuit where this court has refused to find functional
consolidation. Because Carson has failed to show an “explicit indication that the trial court intended
to consolidate the prior convictions,” Horn, 355 F.3d at 614, his argument that his Ohio convictions
were functionally consolidated fails.
Carson maintains that the district court’s conclusion that Carson’s Ohio convictions were not
related is not entitled to deference because the district court did not consider the specific facts of
Carson’s case. This argument fails because the district court specifically noted that the Ohio cases
proceeded under different docket numbers, that the arrests in each case stemmed from activity that
occurred a year apart and were the result of different investigations, and that Carson entered separate
guilty pleas to a number of different counts in two separate cases. The district court referred to prior
case law of this circuit to support its conclusion that Carson’s prior convictions were not related, but
this does not mean that the court failed to consider the specific facts of Carson’s case. Thus, the
district court’s conclusion that Carson’s Ohio convictions were not related for Guidelines purposes
is entitled to deference. Buford, 532 U.S. at 65-66.
No. 05-4015 United States v. Carson Page 5
B. Reasonableness of Carson’s Sentence
Finally, because the district court did not treat the Sentencing Guidelines as mandatory and
took into account the factors outlined in 18 U.S.C. § 3553(a),2 Carson’s sentence is not
unreasonable. Sentences falling within the relevant Guidelines range are entitled to a rebuttable
presumption of reasonableness. Williams, 436 F.3d at 708. Although the factors listed in § 3553(a)
must be taken into account in determining a sentence, “[s]uch consideration . . . need not be
evidenced explicitly.” Id. However, the sentencing court must “articulate its reasoning in deciding
to impose a sentence in order to allow for reasonable appellate review.” United States v. Kirby, 418
F.3d 621, 626 (6th Cir. 2005).
Carson has not established that the district court felt bound by the Sentencing Guidelines or
that the district court failed to consider the arguments Carson put forth regarding an appropriate
sentence. Carson points to the district court’s statement that the career offender determination
would have an impact on the sentence as proof that the district court plainly felt itself bound by the
Guidelines. However, calculation of the sentence under the Guidelines is the first step in
determining the sentence, United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006), and the fact
that the district court noted this does not establish that the district court felt itself bound by the
Guidelines.
The record establishes that the district court properly took into account Carson’s arguments
regarding an appropriate sentence and the relevant factors listed in 18 U.S.C. § 3553(a). The district
court sufficiently articulated its reasoning in imposing the 168-month sentence, a sentence at the
bottom of the relevant Guidelines range. Carson’s attorney argued at sentencing that Carson merely
picked up a package for a friend and was not aware of the amount of drugs involved, the origin of
the drugs, or their value. Carson’s attorney also went into detail regarding Carson’s history, the fact
that Carson was educated, and Carson’s successes as a journalist. It is clear from the record that the
district court considered Carson’s positive attributes. However, the district court also considered
Carson’s criminal history, which included convictions for assault and possession and sale of drugs,
and the fact that Carson was not merely a heroin user, but a sophisticated heroin dealer as well. The
district court recounted Carson’s back-and-forth between jail and attempts at treatment. It
highlighted that Carson, in contrast to his codefendant, was aware of what he was doing when he
went to pick up the suitcase filled with heroin. The district court noted the seriousness of the offense
and the potential sentence Carson faced given the amount of drugs involved, and provided a clear
explanation for the sentence imposed. Because the record establishes that the district court reviewed
and weighed the arguments presented regarding sentencing and considered the relevant factors, even
if not invoking all of them explicitly, Carson has not established that the sentence imposed was
unreasonable.
III.
For the foregoing reasons, the judgment of the district court is affirmed.
2
Section 3553(a) provides that the sentencing court should consider “(1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to
provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range
established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in
the guidelines . . . ; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.”