United States v. Tremayne Collins ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0096n.06
No. 13-4158
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Feb 02, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
TREMAYNE COLLINS, )
)
OPINION
Defendant-Appellant. )
)
Before: BATCHELDER, MOORE, and SUTTON, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Tremayne Collins pleaded guilty to
conspiring to distribute and to possess with intent to distribute less than 100 grams of heroin in
violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(C), and 21 U.S.C. § 846. The district
court determined Collins’s Guidelines range to be between 70 and 87 months, pursuant to a total
offense level of 21 and a criminal history category of V. Collins received a 70-month sentence.
On appeal, Collins contends that the district court erred in calculating his criminal history score.
For the reasons stated below, we AFFIRM Collins’s sentence.
I. BACKGROUND
Tremayne Collins participated in a heroin distribution conspiracy lasting from March
2009 through March 2012. On June 27, 2012, a federal grand jury returned a 19-count
indictment against Collins and eleven codefendants, with Collins named in counts 1 (for
violating 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A), and 21 U.S.C. § 846), 13 (for
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violating 21 U.S.C. § 843(b) and 21 U.S.C. § 846), and 16 (for violating 21 U.S.C. § 843(b) and
21 U.S.C. § 846). On June 3, 2013, Collins agreed to plead guilty to count 1, in exchange for the
government’s dismissing all other charges against him.
At sentencing, Collins objected to the criminal history calculation in his Presentence
Report (“PSR”), which recommended that he receive a criminal history score of 11.1 Collins
took issue specifically with the criminal history points that he received for possession of heroin
and possession of dangerous drugs in violation of state law on October 1, 2010, and for
possession of heroin in violation of state law on October 29, 2011. See R. 381 (Sentencing Hr’g
Tr. at 11–13) (Page ID #2651–53); R. 244 (PSR at ¶ 62–63) (Page ID #1226–27). According to
Collins, these two “offenses were [part of] a common course of conduct with his instant case of
conspiracy to distribute heroin.” Appellant Br. at 14. Thus, under Collins’s view, they should
have been grouped together as relevant conduct to the instant offense, rather than counted
separately in calculating his criminal history.
In response, the government contended that these possession offenses “were isolated
arrests,” and that “[t]here was no direct evidence tying them to the conspiracy.” R. 381
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Collins’s “criminal convictions . . . produce[d] a subtotal criminal history score of 10.”
R. 244 (PSR ¶ 66) (Page ID #1227). “However, convictions scored pursuant to U.S.S.G.
§ 4A1.1(c) are limited to 4,” and there were five such convictions here, resulting in Collins’s
receiving a subtotal criminal history score of 9. Id. Because Collins was on supervised release
when he committed the instant conspiracy, two additional criminal history points were added.
Collins does not dispute nine of these points—attempted possession of crack cocaine in violation
of state law; driving under the influence in violation of state law; trafficking in heroin in
violation of state law; conspiracy to possess with intent to distribute and distribution of at least
100 grams of heroin and 164 grams of ecstasy in violation of federal law; and the enhancement
for committing the instant offense while on supervised release.
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(Sentencing Hr’g Tr. at 15) (Page ID #2655). In addition, in an addendum to Collins’s PSR, the
government verified that these heroin amounts were not included in calculating Collins’s base
offense level, which held Collins responsible for conspiring to distribute and to possess with
intent to distribute 80–100 grams of heroin.
After hearing from both sides, the district court stated that it could not “simply say well,
anything that happened [during the conspiracy] that was drug related, that it[,] if it was heroin, is
part of the conspiracy.” R. 381 (Sentencing Hr’g Tr. at 18) (Page ID #2658). “It could be—it
might be, but I—there’s not enough for me to make that determination.” Id. at 19 (Page ID
#2659). The district court overruled Collins’s objection, and adopted the PSR’s recommendation
in full. Id. at 19, 21 (Page ID #2659, 2661). Before imposing Collins’s sentence, the district
court provided Collins with a final opportunity to object, pursuant to our rule in United States v.
Bostic, 371 F.3d 865, 873 (6th Cir. 2004). R. 381 (Sentencing Hr’g Tr. at 43–44) (Page ID
#2683–84). Collins asserted a “continuing objection” regarding “the Court’s determination on
[his] criminal history.” Id. at 44 (Page ID #2684).
On appeal, Collins contends that the district court erred in denying his objection to these
two criminal history points. In addition, he claims that he should not have received a criminal
history point for his January 19, 2000, arrest for minor misdemeanor possession of marijuana.
Collins did not raise this latter claim at his sentencing hearing or in his sentencing memorandum.
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II. DISCUSSION
A. Standard of Review
We review sentences for procedural and substantive reasonableness. Gall v. United
States, 552 U.S. 38, 51 (2007). First, we must “ensure that the district court committed no
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.” Id. If no procedural error occurred, we must then “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. Sentences
within the applicable Guidelines range are presumptively substantively reasonable. United
States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011).
With respect to the issues in this case, “[w]e accept factual findings made by the district
court at sentencing unless they are clearly erroneous. Because the district court’s determination
of ‘relevant conduct’ under the Sentencing Guidelines involves the application of law to fact, we
review the district court’s determination de novo.” United States v. Phillips, 516 F.3d 479, 483
(6th Cir. 2008) (citation omitted). In addition, as we noted in Bostic, “[i]f a party does not
clearly articulate any objection and the grounds upon which the objection is based, when given
this final opportunity [to] speak, then that party will have forfeited its opportunity to make any
objections not previously raised and thus will face plain error review on appeal.” 371 F.3d at872–73; see also United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (applying
Bostic only to procedural reasonableness claims).
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B. Marijuana Possession
We consider first Collins’s argument that he should not have received a criminal history
point for his prior conviction for minor misdemeanor possession of marijuana. As Collins points
out, “[a]rrest or conviction for [this] minor misdemeanor violation . . . does not constitute a
criminal record” under Ohio law. Appellant Br. at 17 (quoting Ohio Rev. Code Ann.
§ 2925.11(D)). Thus, he argues that his conviction should fall under one of the exceptions listed
in U.S.S.G. § 4A1.2(c), rather than be considered part of his criminal history. He specifically
analogizes his conviction to a minor traffic infraction, see U.S.S.G. § 4A1.2(c)(2), or, in the
alternative, to disorderly conduct, see U.S.S.G. § 4A1.2(c)(1).
Because Collins did not raise this specific objection below, we review it for plain error.
See Bostic, 371 F.3d at 872–73. To demonstrate plain error, Collins must show “(1) error (2)
that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings.” Vonner, 516 F.3d at 386(internal quotation marks omitted).
Collins has failed to satisfy these requirements. The Commentary to U.S.S.G. § 4A1.2(c)
advises us to adopt a “common sense approach” in determining whether an offense should be
considered a minor traffic infraction or a form of disorderly conduct. U.S.S.G. § 4A1.2 cmt.
n.12(A). That approach “includes consideration of [a number of] relevant factors,” including:
(i) a comparison of punishments imposed for the listed and unlisted offenses;
(ii) the perceived seriousness of the offense as indicated by the level of
punishment;
(iii) the elements of the offense;
(iv) the level of culpability involved; and
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(v) the degree to which the commission of the offense indicates a likelihood of
recurring criminal conduct.
Id. In United States v. Stubblefield, 265 F.3d 345, 346 (6th Cir. 2001), “Stubblefield filed an
objection to the probation officer’s decision to assign a criminal history point to his minor
misdemeanor drug abuse conviction”—a conviction, as in this case, for “possession of less than
one hundred grams of marijuana.” We considered and rejected Stubblefield’s argument that his
conviction fell under the purview of U.S.S.G. § 4A1.2(c). Id. at 347 (“[T]he exceptions set forth
in § 4A1.2(c) do not apply.”). However, we decided Stubblefield without referring to the five
factors listed above.
To be sure, some of these factors—a comparison of the punishments imposed (factor i)
and the perceived seriousness of the offenses as indicated by their level of punishment (factor
ii)—do weigh in Collins’s favor. As Collins notes, minor misdemeanor possession of marijuana
(like a minor traffic infraction) is not recorded on one’s criminal record in Ohio. On recidivism
(factor v), we acknowledge that “[t]he Sentencing Commission has determined that convictions
for crimes involving illegal narcotics correlate strongly to recidivism.” United States v. Foote,
705 F.3d 305, 308 (8th Cir. 2013) (internal quotation marks omitted) (citing U.S. Sentencing
Comm’n, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing
Guidelines, 13, 29–30 (2004)). But we have no data on whether the recidivism rate for minor
traffic infractions (such as speeding) is any lower than the recidivism rate for minor
misdemeanor possession of marijuana—indeed, common experience would likely suggest that it
is probably just as high. Yet we think that these offenses contain different elements (factor iii)
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and carry different levels of culpability (factor iv). Ohio’s drug possession law, for instance,
contains an explicit mens rea element—that “[n]o person shall knowingly obtain, possess, or use
a controlled substance”—while “[m]ost traffic violations,” on the other hand, “are strict liability
crimes.” Ohio Rev. Code § 2925.11(A); State v. Campbell, 691 N.E. 2d 711, 714 (Ohio Ct. App.
1997), abrogated on other grounds by State v. Weitbrecht, 715 N.E. 2d 167 (Ohio 1999).
Offenses which have a mens rea element typically carry with them a higher level of culpability
than those that do not. See also Foote, 705 F.3d at 307–08 (rejecting argument that possession of
marijuana be treated as a minor traffic infraction under § 4A1.2).
In light of this discussion, we believe that the district court did not plainly err in awarding
a criminal history point for Collins’s prior conviction for marijuana possession. We are mindful
that at least one court has found that the district court did not commit plain error when it failed to
award a criminal history point for defendant’s prior marijuana possession conviction. United
States v. Ventura, 428 F. App’x 390, 392 (5th Cir. 2011). But under plain-error review, Collins
must demonstrate that the district court committed an “obvious or clear” error. Collins has not
done so here. Collins’s second contention—that we treat his marijuana possession as a form of
disorderly conduct—is of a piece. Consistent with the reasoning above, we hold that the district
court did not plainly err in rejecting this argument. See also United States v. Ruacho, 746 F.3d
850, 854–55 (8th Cir. 2014) (applying five-factor test to same argument and rejecting claim).
C. Heroin Possession
Collins also alleges that his convictions for heroin possession in 2010 and 2011 should be
considered relevant conduct to the instant offense. We begin with his 2011 arrest. According to
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the Youngstown police report, officers pulled over the car that Collins was riding in for having
tinted windows. Police officers approached the vehicle and observed Collins sitting in the
passenger seat with “a personal use amount of heroin near his lap.” R. 244 (PSR at ¶ 63) (Page
ID #1227).
These facts are consistent with the government’s contention that Collins was possessing
heroin outside of his involvement in the instant heroin conspiracy—i.e., that he was possessing it
for personal use. This conclusion is also supported by the indictment and plea agreement, which
provide multiple instances where Collins sold heroin to a cooperating source. See R. 249 (Plea
Agreement at ¶ 19) (Page ID #1280–81). Tellingly, none of these sales occurred in October
2011—none, in fact, occurred after June 8, 2011. Id. We also note that the district court offered
Collins an opportunity to provide evidence on this matter at sentencing. Collins might have, at
this time, offered an explanation of from whom he had bought the heroin and to whom he was
planning to sell it. He declined.
The facts here mirror those in United States v. Escobar, 992 F.2d 87 (6th Cir. 1993). In
that case, Escobar claimed that “the district court committed error by including two prior State of
Ohio sentences for cocaine possession in the computation of his criminal history score, because
the conduct which formed the basis for the Ohio sentences was part of the continuing criminal
enterprise on which his federal sentence [was] based.” Id. at 87–88. We rejected this argument.
Although Escobar’s drug possession offenses did occur while he was also involved in a drug
distribution conspiracy, “Escobar’s possession of cocaine on [a particular date] is simply not
charged in the federal indictment, and the commission of this act need not have been proven as
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an element of any of the offenses therein to which he pled guilty.” Id. at 89. Both of Escobar’s
state convictions involved a small amount of cocaine, with one count charging him with
possession of 0.58 grams of cocaine found on his person and rolled up in a dollar bill—facts
indicative of cocaine intended for personal use. Id. at 88. In federal court, however, Escobar
was convicted of conspiring to distribute and to possess with intent to distribute cocaine; one of
the overt acts charged in his indictment involved his attempting to board a plane with
approximately 2.5 kilograms of cocaine and $66,000 in cash. Id.Like Escobar, Collins was convicted in federal court for attempting to distribute a large
amount of contraband, whereas he was convicted in state court for possession of a small amount
of contraband likely intended for personal use. As in Escobar, we reject Collins’s unsupported
assertion that this arrest for possession constituted relevant conduct to the instant offense. Id. at
90 (“We [could] think of no justification for concluding that any possession by Escobar during
the three-year time span of the criminal enterprise must automatically be considered as having
been committed by him as part of or in furtherance of his criminal enterprise.”). The district
court properly overruled Collins’s objection.
Our decision on the 2011 arrest makes it unnecessary for us to review the district court’s
decision regarding Collins’s 2010 arrest for heroin possession. Under the Guidelines,
convictions scored pursuant to U.S.S.G. § 4A1.1(c) are capped at four. Collins had five such
convictions here, including the three at issue in this appeal. We have already determined that the
district court did not plainly err in awarding Collins a criminal history point for marijuana
possession in 2000 and did not err in awarding him a criminal history point for heroin possession
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in 2011. Thus, Collins’s criminal history score still would have been 11, regardless of the
district court’s treatment of his 2010 arrest. Any error by the district court here would have
therefore been harmless.
After determining Collins’s criminal history score and his total offense level, the district
court properly set forth its rationale for Collins’s sentence. We hold that Collins’s sentence was
neither procedurally nor substantively unreasonable.
III. CONCLUSION
Accordingly, we AFFIRM Collins’s sentence.
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