United States v. Brown ( 2008 )

File Name: 08a0663n.06
Filed: November 3, 2008
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 07-5465
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
JOHN S. BROWN, COURT FOR THE WESTERN
DISTRICT OF KENTUCKY
Defendant-Appellant.
/
Before: MARTIN and GILMAN, Circuit Judges, and DOWD, District Judge.*
BOYCE F. MARTIN, JR., Circuit Judge. John S. Brown appeals his 144 month sentence
for possession of crack and powder cocaine with intent to distribute, possession of a firearm in
furtherance of a drug crime, and possession of a firearm after a felony conviction. On appeal, he
argues that his sentence should be vacated because it was imposed without a presentence report. We
find that the district court properly exercised its discretion to impose a sentence without a
presentence report under Federal Rule of Criminal Procedure 32(c)(1)(A)(ii) and United States
Sentencing Guidelines Manual § 6A1.1(a)(2). However, we VACATE Brown’s sentence and
*
The Honorable David D. Dowd, Jr., Senior District Judge for the Northern District of Ohio,
sitting by designation.
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Page 2
REMAND for resentencing in light of the 2007 Amendments to the Sentencing Guidelines, which
apply retroactively to Brown’s case.
I.
On March 22, 2006, John S. Brown was arrested in Louisville, KY, on suspicion of drug
trafficking. Police found him carrying crack and powder cocaine, $918 in cash, and a loaded .380
handgun. Brown admitted that he intended to distribute the drugs and that he carried the gun for
protection. He was subsequently charged with possession of crack and powder cocaine with intent
to distribute, possession of a firearm in furtherance of a drug crime, and possession of a firearm after
a felony conviction. At the advice of counsel, Brown negotiated a plea agreement, pled guilty to all
counts and agreed to a recommended sentence of 144 months. After finding that it had all the facts
necessary for sentencing, the district court found this sentence to be reasonable and imposed the
recommended sentence. Brown now appeals.
II.
We review sentencing determinations for both procedural and substantive reasonableness.
A sentence is procedurally unreasonable if it is marked by “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation
from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597 (2007). “[A] sentence may
be substantively unreasonable when the district court selects the sentence arbitrarily, bases the
sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an
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Page 3
unreasonable amount of weight to any pertinent factor.” United States v. Borho, 485 F.3d 904, 908
(6th Cir. 2007) (citation and quotation marks omitted). The standard of review for sentencing
determinations is abuse of discretion. Gall, 128 S. Ct. at 594.
III.
Brown argues that the district court’s failure to consult a presentence report before sentencing
him was procedurally unreasonable. We disagree. Presentence reports, while often an important
resource, are not a mandatory part of the sentencing process. Both the Federal Rules of Criminal
Procedure and the Sentencing Guidelines expressly provide that a district judge may sentence a
defendant without a presentence report “[if] the court finds that the information in the record enables
it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553, and the court explains
its finding on the record.” Fed. R. Crim. Pro 32(c)(1)(A)(ii); U.S.S.G. § 6A1.1(a)(2). This makes
sense. The purpose of a presentence report is to inform the judge of the facts relevant to sentencing.
As Rule 32(c)(1)(A)(ii) and U.S.S.G. § 6A1.1(a)(2) recognize, where the judge already has those
facts in front of him, a presentence report is unnecessary. Cf. U.S.S.G. § 6A1.1 cmt. (“A thorough
presentence investigation ordinarily is essential in determining the facts relevant to sentencing. Rule
32(c)(1)(A) permits the judge to dispense with a presentence report . . . when the court finds
sufficient information in the record to enable it to exercise its statutory sentencing authority
meaningfully and explains its finding on the record.”) (emphasis added).
Brown correctly notes that U.S.S.G. § 6A1.1(b) provides that a defendant may not waive
preparation of a presentence report. However, U.S.S.G. § 6A1.1(b) must be read in light of U.S.S.G.
§ 6A1.1(a), which empowers the judge to sentence a defendant without a presentence report. That
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Page 4
is to say, U.S.S.G. § 6A1.1(b) does not limit the judge’s authority to issue a sentence without a
presentence report if he complies with Rule 32(c)(1)(A)(ii) and U.S.S.G. § 6A1.1(a)(2).
Here, Brown entered into a binding plea bargain with the United States pursuant to Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure. He agreed to the facts that were contained
therein and which were independently reviewed by the district court at his sentencing hearing.
Likewise, he agreed to a sentence of 144 months. Consistent with U.S.S.G. § 6B1.2(c), the district
court accepted the plea bargain upon finding that the agreed-upon sentence fell within the applicable
range.1 It then asked Mr. Brown whether he would like to be sentenced that day or delay sentencing
for “a couple of months” while a presentence report was prepared. In doing so the district court did
not in any way limit its authority to impose a sentence without a presentence report. When Brown
indicated he did not desire to wait, he signed a form memorializing this preference as an incident to
this exchange. The district court then found that the record enabled it to meaningfully exercise its
sentencing authority under 18 U.S.C. § 3553, and sentenced Brown to the agreed-upon sentence.
To the extent the district court treated Brown’s preference as controlling, it was within its discretion
to do so. This in no way violated the Sentencing Guidelines.
1
The record indicates that Brown’s criminal history was most likely V, but clearly not less
that IV. The plea bargain stipulated category V, and the district court followed this. However, to
the extent there is any uncertainty, it is worth noting that the sentence of 144 months falls within the
recommended range for both. The offense level for the drug charge was 23, with a five year
minimum. For a criminal history of IV, the Guidelines Manual range was 70-87 months. For a
criminal history of V, it would have been 84-105. The firearm count carried a 60 month minimum
to be served consecutive to the first, so a total of 144 months falls within either category.
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Furthermore, it is clear from the record that the district court had sufficient information
before it to “exercise its sentencing authority meaningfully.” The district court had discussed
Brown’s criminal history with Brown’s counsel, as well as the structure of Brown’s plea agreement,
under which the United States agreed to drop the second drug charge against him if he pled guilty
to all counts and agreed to a 144 month sentence.2
Having made the finding required by Rule 32(c)(1)(A)(ii), the district court went on to
explain it on the record at Brown’s sentencing hearing. This explanation was brief but sufficient in
the broader context of the hearing: no facts relevant to sentencing were in dispute and Brown’s
sentence had been negotiated to three years less than the mandatory minimum for the charges he
faced.3
Sentencing Brown without a presentence report was procedurally reasonable under these
circumstances.
IV.
While Brown’s sentence was procedurally reasonable, it was imposed pursuant to sentencing
guidelines that have since been amended retroactive to Brown’s case. Because of this, we vacate his
sentence and remand his case for resentencing.
2
This reduced the mandatory minimum of his sentences from fifteen years to ten.
3
Even if the district court had committed error here, that error would not be reversible under
Fed. R. Crim. Pro. 52, because Brown did not object to it at his sentencing hearing and there is no
evidence that it “affects substantial rights.” United States v. Ward, 190 F.3d 483, 492 (6th Cir. 1998).
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Brown’s sentence was imposed on May 17, 2007. On November 1, 2007, the sentencing
guidelines were amended to decrease the offense level for drug convictions involving crack by two
points. In an apparent oversight, the drug equivalency table in the commentary to U.S.S.G. §2D1.1
did not incorporate this change. The guidelines were later amended to correct this anomaly and
make the resulting changes retroactive. See 73 Fed. Reg. 217-01 (Jan. 2, 2008); § 1B1.10(a)(1),(c)
(Supp. 2008). Because of this, defendants serving a sentence for a crack offense imposed under the
prior guidelines can file a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). See United
States v. Poole, 538 F.3d 644, 645 (6th Cir. 2008). Brown was sentenced under the prior guidelines,
so he is eligible for resentencing under the new provisions.
V.
For the foregoing reasons, we VACATE Brown’s sentence and REMAND for resentencing.