United States v. John Wise ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0214n.06
Nos. 18-3458/3395
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Apr 25, 2019
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
)
DONA BATTLE (No. 18-3458); )
OPINION
JOHN WISE (No. 18-3395), )
)
Defendants-Appellants. )
)
Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Dona Battle and John Wise pleaded guilty to their
respective roles within a large drug conspiracy. They now appeal various aspects of their
sentences. We affirm.
I.
A federal grand jury indicted Battle and Wise—along with fifteen other individuals—as
part of a conspiracy to distribute cocaine. The investigation focused on Battle, who would obtain
powder cocaine, cook it into crack cocaine, and then distribute the crack around northern Ohio.
Wise was Battle’s primary driver. To fuel his own addiction, Wise would deliver drugs for Battle.
And Battle would refer customers to Wise.
Both Defendants pleaded guilty to their roles in the conspiracy—entering written plea
agreements with the government. At sentencing, the district court considered Defendants’
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enduring histories with drugs and crime. Battle has fourteen convictions dating back to 1992;
ranging from drug trafficking, drug possession, and driving under the influence. As the district
court put simply, “he has just been a drug trafficker his entire life.” (Battle Sentencing Tr., R. 404
at 16.) And Wise adds fifteen convictions of his own, including drug trafficking, possession of
crack cocaine, and various thefts. These convictions caused the district court to sentence Battle as
a career criminal and influenced the district court to impose longer sentences to deter Defendants
and protect the public.
The district court sentenced Wise to 33 months in prison—12 months longer than
recommended by the Sentencing Guidelines. Battle received 210 months. Both sentences
included identical terms of supervised release: ten years following release from prison. Each
defendant now appeals his sentence for various reasons.
II.
Battle raises three issues with his sentence. But before we can reach those issues, we must
address Battle’s procedural hurdle: his appellate waiver. In his plea agreement, Battle waived his
right to appeal his sentence if the sentence did not exceed his Guidelines range or any statutory
maximum. But neither exception applies here. Battle’s sentence of 210 months, with 10 years of
supervised release, fell within his Guidelines’ range of 168 to 210 months.
So to get around his waiver, Battle styles his appeal as a claim of ineffective assistance of
counsel, which he raises now for the first time. Generally, we “will not review an ineffective
assistance of counsel claim that is raised for the first time on appeal.” United States v. Pruitt, 156
F.3d 638, 646 (6th Cir. 1998) (internal quotation and citation omitted). Instead, such claims “are
more properly available in a post-conviction proceeding under 28 U.S.C. § 2255, after the parties
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have had the opportunity develop an adequate record” in the district court. United States v. Rahal,
191 F.3d 642, 645 (6th Cir. 1999). There are, however, exceptions to this rule. And the
government concedes that one applies here: we can review such a claim “where the record is
adequately developed to allow the court to properly assess the merits of the issue.” United States
v. Williams, 612 F.3d 500, 508 (6th Cir. 2010) (internal quotation and citation omitted). As a
result, we will address the merits of Battle’s claim for ineffective assistance of counsel.
Battle argues that his attorney made three mistakes. First, his attorney did not object when
the district court imposed a 10-year term of supervised release. Second, his attorney did not object
when the district court considered him a career offender. And finally, his attorney did not object
when the court “assumed” some facts during sentencing.
To succeed on any one of these claims, Battle “must establish two things.” Monea v.
United States, 914 F.3d 414, 419 (6th Cir. 2019). “First, that the attorney’s performance fell below
‘prevailing professional norms.’” Id. (quoting Kimmelman v. Morrison, 477 U.S. 365, 381
(1986)). “And second, that the attorney’s poor performance prejudiced the defendant’s case.” Id.But we need not address both elements. “In fact, ‘[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 697 (1984)). Indeed, this course is often followed because
“[p]roving prejudice is not easy.” Id. Battle “faces a ‘high burden’ in demonstrating ‘that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Id. (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011)).
Battle cannot meet this prejudice standard for any one of the three alleged mistakes.
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Supervised Release. Battle’s first argument is that he received ineffective assistance of
counsel when his attorney failed to object to his 10-year term of supervised release. Before
pleading guilty, Battle knew that eight years was his minimum period of supervised release. (Battle
Plea Agreement, R. 168 at 2.) But Battle claims this notice was not enough. Instead, Battle argues
that the district court (or his attorney) should have advised him of the maximum term of supervised
release. Battle relies on Rule 11, which requires a district court to inform a defendant of “any
maximum possible penalty, including imprisonment, fine, and term of supervised release.” Fed.
R. Crim. P. 11(b)(1)(H). But Rule 11 does not require strict compliance. Rather, “[a] variance
from the requirements of this rule is harmless error if it does not affect substantial rights.” Fed. R.
Crim. P. 11(h).
To begin, it does not seem that the district court made any error, harmless or otherwise.
The crime Battle pleaded guilty to, 21 U.S.C. § 841, provides no maximum term of supervised
release. United States v. Dominguez, 513 F. App’x 458, 461 n.1 (6th Cir. 2013). That means the
district court correctly advised Battle of the sentence he faced: a minimum of eight years of
supervised release. See 21 U.S.C. §§ 841(b)(1)(B), 846. And as Battle concedes, this language
“suggests that the district court could impose a term greater than eight years.” (Battle Reply at 5;
Battle Br. at 15.) So Battle knew that he could receive a sentence of ten years.
Regardless, we have found harmless error in cases that arguably involved allegations of
more egregious errors. See, e.g., United States v. Williams, 899 F.2d 1526, 1530–31 (6th Cir.
1990). In Williams, the defendant entered a plea agreement that advised him that he would receive
some term of supervised release. Id. at 1531. The plea agreement, however, did not inform the
defendant of the minimum or maximum term of supervised release. See id. So when the district
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court imposed an eight-year term, the defendant objected under Rule 11. Id. at 1528. But we
found any error harmless because the plea agreement gave notice that supervised release was
mandatory—and the defendant admitted that he would have still pleaded guilty even if the court
had informed him of the mandatory minimum term. Id. at 1531. In other words, the defendant
knew about his supervised release and a different Rule 11 advisement would not have changed
anything.
Here, Battle suffered even less prejudice than the defendant in Williams. Battle received
some numerical guidance from the district court: a minimum of eight years. Indeed, this
advisement of Battle’s minimum term likely would have satisfied the Williams court that no error
occurred. See 899 F.2d at 1531. And like Williams, Battle admits that “he is not seeking to
withdraw his plea.” (Battle Br. at 15.) It makes sense then that Battle’s attorney did not object
because it would not have changed anything. Battle received the very sentence he anticipated: at
least eight years. If Battle’s attorney made any error at all, it was harmless.
None of the cases Battle relies on compels a different result. For example, in United States
v. Reader, the district court incorrectly advised the defendant “that three years was the maximum
period of supervised release.” 254 F. App’x 479, 481 (6th Cir. 2007) (emphasis added). To the
defendant’s surprise, the district court sentenced him to a 10-year term. So we vacated the plea
and sentence. Id. at 482. But advising a defendant of an incorrect maximum term is a very
different situation than advising a defendant of a correct minimum term. The former results in an
inconsistent and unexpected sentence (i.e., you get ten years when you thought you could only get
three). But the latter results in a consistent and expected sentence (i.e., you get ten years when you
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knew you were getting at least eight, but maybe more). As a result, we find any error harmless,
which cannot support an ineffectiveness claim under Strickland.
Career Offender Status. Battle’s second argument is that he received ineffective assistance
of counsel when his attorney failed to object to his career offender status. To become a career
offender under the Sentencing Guidelines, a defendant must have “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
Battle admits that he has two prior convictions that qualify for the enhancement. On April 20,
2006, Battle was arrested and charged with two counts of trafficking drugs—crack cocaine and
ecstasy. Two months later, Battle was arrested again and charged with two counts of trafficking
crack cocaine. The state court sentenced Battle for both crimes on the same day. And it ordered
his two sentences, of sixteen months and two years respectively, to run concurrently.
Battle argues that we should consider these two crimes—that took place two months apart
and charged in two different indictments—as just one prior conviction. He relies on the exception
to the “single sentence” rule, which is used to “determine whether [multiple prior] sentences are
counted separately or treated as a single sentence.” See U.S.S.G. § 4A1.2(a)(2). Under this
exception, “prior sentences are counted separately unless . . . the sentences were imposed on the
same day.” Id. So Battle argues that we should count his April and June arrests as just one prior
conviction because the state court sentenced him for both on the same day. But Battle ignores the
mandatory predicate that comes before the exception. The exception applies only “[i]f there is no
intervening arrest.” Id. The general “single sentence” rule also makes this clear: “Prior sentences
always are counted separately if the sentences were imposed for offenses that were separated by
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an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the
second offense).” Id. (emphasis added).
Picture it this way. If the district court counted Battle’s April 2006 arrest for trafficking
crack cocaine and ecstasy as two predicate offenses, this exception would apply. Battle was
arrested for both offenses on the same day—and the state court sentenced him on the same day.
But that’s not the situation here. Battle was arrested for trafficking drugs in April 2006. Then two
months later, he was arrested for trafficking more drugs. Under the Sentencing Guidelines, these
two crimes must count as two predicate offenses because time passed between Battle’s April and
June arrests. United States v. Tatum, 743 F. App’x 589, 594 (6th Cir. 2018) (citing United States
v. Gale, 468 F.3d 929, 936 (6th Cir. 2006)) (“If the court determines that the convictions at issue
are separated by intervening arrests—i.e., the defendant was arrested for the first offense prior to
committing the second offense—then its inquiry ends.”). As a result, Battle cannot suffer any
prejudice because the exception cannot apply—and his ineffectiveness claim fails.
Facts During Sentencing. Battle’s final argument is that he received ineffective assistance
of counsel when his attorney failed to object to some facts mentioned during sentencing.
According to Battle, the district court made two unsupported factual assumptions that caused his
sentence to become unreasonable. First, that Battle was involved in violent crime because he was
involved in a drug conspiracy. And second, that Battle’s children were in the home while he was
dealing drugs.
It is true that a district court cannot base a sentence on impermissible factors, such as
unreasonable speculation. See United States v. Van, 541 F. App’x 592, 597 (6th Cir. 2013) (relying
on United States v. Hughes, 283 F. App’x 345, 351–53 (6th Cir. 2008)). But where, like here, a
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sentence “falls within a properly calculated guidelines range,” we presume the sentence is
reasonable. United States v. Heriot, 496 F.3d 601, 608 (6th Cir. 2007). And looking at the full
context of Battle’s sentencing record, the district court did not consider impermissible factors or
speculate. Thus, Battle cannot overcome the presumption of reasonableness.
First, the district court did mention that there was “some evidence of possession of firearms
in the PSI, which, of course, guns and drug dealing goes hand-in-hand.” (Battle Sentencing Tr.,
R. 404 at 16.) But even if this were somehow an improper statement, the district court qualified it
twice: “The defendant has no history of violence” and “[t]he defendant has no convictions, though,
that we can point to as it relates to violence or any other evidence of . . . violence.” (Id.) Second,
the district court also qualified its statement about Battle’s children: “Sadly, they were present in
the home, potentially present in the home when drugs were either being sold, created, or both. And
that is certainly tragic.” (Id. at 17 (emphasis added).) The district court made this statement in the
context of discussing Battle’s family situation.
The district court then moved on from both topics. Instead, the court began focusing on
what it called “[t]he defendant’s activities in terms of the need for the sentence imposed.” (Id.)
The district court discussed Battle’s “lengthy criminal history record and . . . tendency to continue
to traffic in drugs even after he is released from custody.” (Id. at 18.) So it was Battle’s career as
a drug dealer that drove the district court’s within-Guidelines sentence. See 18 U.S.C. § 3661. In
other words, there is no indication that the district court improperly sentenced Battle because he
was a violent drug dealer—or because his children were present in the home. As a result, Battle
cannot meet his “high burden” to show prejudice under Strickland. We affirm Battle’s sentence.
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III.
Wise raises two issues with his sentence, both of which attack the district court’s sentence
as substantively unreasonable. The district court sentenced Wise to 33 months, which was
12 months above his Guidelines’ range of 15–21 months. Wise argues that the district court
improperly weighed the sentencing factors by placing too much weight on his criminal history—
and not enough weight on his positive factors. Wise also argues that his 10-year term of supervised
release is unreasonable. We review Wise’s sentence for abuse of discretion. United States v.
Herrera-Zuniga, 571 F.3d 568, 581 (6th Cir. 2009).
“A sentence may be considered substantively unreasonable when the district court selects
a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United
States v. Conaster, 514 F.3d 508, 520 (6th Cir. 2008). In contrast, a sentence is not unreasonable
where “the record indicates that the district judge carefully reviewed and weighed all the relevant
information.” United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005).
Wise concedes that the district court considered the relevant sentencing factors from
18 U.S.C. § 3553(a)—and our review of the record confirms as much. The district court
extensively discussed Wise’s criminal history and struggles with drug addiction. The district court
also discussed mitigating factors, such as Wise’s difficult childhood, mental health issues, and
employment. When it came to supervised release, the district court again reviewed the relevant
factors and explained why it was imposing a longer sentence: “because of [his] prior record and
history, his continuing pattern of recidivism, [and] his continuing pattern of not complying with
earlier sanctions.” (Wise Sentencing Tr., R. 381 at 20.) And the district court again considered
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his mental health and addiction problems, encouraging Wise to deal with these issues or else “he
will go back to prison for a long time to protect our communities.” (Id. at 20–21.) See also United
States v. Gaynor, 530 F. App’x 536, 541 n.4 (6th Cir. 2013) (explaining that a district court can
consider “rehabilitation when imposing a term of supervised release”).
Wise’s argument, instead, “ultimately boils down to an assertion that the district court
should have balanced the § 3553(a) factors differently.” United States v. Sexton, 512 F.3d 326,
332 (6th Cir. 2008) (quoting United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006)). But we will
not reweigh these sentencing factors in the first instance. Id. As a result, the district court did not
abuse its discretion. We affirm Wise’s sentence.
* * *
We affirm the district court and the sentences.
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