United States v. Percy Wells ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0158n.06
No. 12-3249
UNITED STATES COURT OF APPEALS
FILED
Feb 13, 2013
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
PERCY WELLS, NORTHERN DISTRICT OF OHIO
Defendant-Appellant.
/
BEFORE: CLAY, COOK, and ROTH,* Circuit Judges.
CLAY, Circuit Judge. Defendant Percy Wells was indicted along with twenty-four others
in a fifty-nine count indictment for crimes arising out of a conspiracy to distribute crack cocaine.
After pleading guilty to conspiracy to possess with the intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), & 846, the district court sentenced Defendant to 48 months’
imprisonment for the pleaded-to offense plus an 18-month prison term, to run consecutively, for
violating his supervised release. Defendant appeals his sentence on both procedural and substantive
reasonableness grounds. For the reasons that follow, we VACATE the Defendant’s supervised-
release sentence and REMAND for resentencing.
*
The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals
for the Third Circuit, sitting by designation.
No. 12-3249
BACKGROUND
On March 2, 2011, a federal grand jury for the Northern District of Ohio indicted Defendant
Percy Wells, charging him with one count of conspiracy to possess with the intent to distribute five
kilograms or more of cocaine and/or fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), & 846, and five counts of use of a communication facility to facilitate
a drug trafficking offense, in violation of 21 U.S.C. § 843(b). At the time of his indictment,
Defendant was serving prison time on unrelated state drug crimes, and was on supervised release for
a previous federal conviction. Defendant pleaded guilty to the conspiracy charge, and the district
court sentenced him to 48 months’ imprisonment for the conspiracy charge and 18 months’
imprisonment for violating the terms of his supervised release, with the two sentences to run
consecutively to one another.
STANDARD OF REVIEW
We review sentences for “reasonableness under an abuse of discretion standard.” United
States v. Brown, 579 F.3d 672, 677 (6th Cir. 2009). As reasonableness involves both procedural and
substantive components, this review proceeds in two steps. Id. First, we evaluate the procedural
reasonableness to “ensure that the district court did not commit 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. (quoting Gall v. United States, 552
U.S. 38, 51 (2007)). Next, we assess the substantive reasonableness of a sentence. As “[t]he essence
of a substantive-reasonableness claim is whether the length of the sentence is greater than necessary
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to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a),” a sentence will be found
substantively unreasonable if “the district court selects the sentence arbitrarily, bases the sentence
on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable
amount of weight to any pertinent factor.” United States v. Corp, 668 F.3d 379, 386 (6th Cir. 2012)
(internal quotation marks omitted). In doing this two-step review, “[t]he district court’s
interpretation of the advisory Guidelines is reviewed de novo, and its findings of fact are reviewed
for clear error.” Brown, 579 F.3d at 677.
DISCUSSION
Defendant raises two challenges to his sentence: (1) that the district court failed to award him
a reduction in time, and (2) that the district court failed to justify running the sentences
consecutively.
1. Credits
In 2003, Defendant was sentenced to an 82-month prison term for a federal drug-related
crime. In late 2007, the Sentencing Commission amended the Guidelines by lowering the quantity
of drugs it took to impose a given sentence. In February 2008, Defendant moved, under 18 U.S.C.
§ 3582(c)(2), to retroactively apply Guidelines Amendment 706 to his 82-month sentence. In March
2008, the district court in his 2004 case granted Defendant’s motion and reduced his sentence to “63
months or time served if defendant’s sentence exceeds the amount of time already served.” At the
time that the reduction order was entered, Defendant had served nearly 71 months in prison.
Defendant now argues that the district court in this case should have reduced his sentence by
the eight “extra” months Defendant served beyond the post-reduction 63-month sentence ordered
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in his 2004 case. Defendant’s premise that he served “extra” time is incorrect as the order reducing
his sentence in his 2004 case stated that Defendant’s sentence was to be “63 months or time served.”
Because Defendant had already served 71 months, Defendant’s sentence was reduced to time served.
See also U.S.S.G. § 1B1.10, application n.3 (“In no case . . . shall the term of imprisonment be
reduced below time served.”). Therefore, we see no basis for Defendant’s contention that he was
entitled to an eight month shorter sentence.
2. Justification for Consecutive Sentences
Defendant next argues that his sentence was procedurally unreasonable because the district
court failed to adequately justify the consecutive sentences. This Court in United States v. Cochrane,
702 F.3d 334 (6th Cir. 2012), recently addressed the district court’s obligation to give reasons
supporting its decision to run sentences consecutive to one another. We held that “a district court
must indicate on the record its rationale [for imposing consecutive sentences], either expressly or by
reference to a discussion of relevant considerations contained elsewhere.” Id. at 346. Such a rule
was necessary in order to allow for “meaningful appellate review.” Id.; see also Rita v. United
States, 551 U.S. 338, 356 (2007). In surveying our prior caselaw, we reaffirmed that “[t]he district
court need not state its rationale explicitly” and noted that a district court will not be found to abuse
its discretion where it “incorporate[s] by reference a discussion of the relevant considerations in
another document” or “make[s] clear that its reasons for choosing a substantive sentence and for
running two sentences consecutively are the same.” Cochrane, 702 F.3d at 346 (citing United States
v. Johnson, 640 F.3d 195, 208 (6th Cir. 2011), United States v. Berry, 565 F.3d 332, 342–43 (6th
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Cir. 2009)). What we specifically prohibited in Cochrane was a district court “say[ing] nothing at
all.” Id.The district court in the instant case gave this court no indication of which factors in its
discussion of the 18 U.S.C. § 3553(a) factors and presentence report related to running the two terms
consecutively. (See R. 389, at PID# 1954–58.) The district court’s discussion, while thorough, gives
us “no way to review the reasonableness of [the consecutive nature of the] sentence[s].” Cochrane,
702 F.3d at 347. Therefore, under Cochrane, we find the district court’s lack of explanation for the
consecutive sentences to be an abuse of discretion.1 Because, however, Defendant has raised no
defects with respect to his conspiracy sentence, our remand will be limited to resentencing on the
supervised-release violation. See, e.g., United States v. Inman, 666 F.3d 1001, 1007 (6th Cir. 2012).
CONCLUSION
For the foregoing reasons, we VACATE the Defendant’s supervised-release sentence and
REMAND for resentencing on that violation. Defendant’s conspiracy sentence shall remain in
place.
1
Having concluded that the district court was procedurally unreasonable in failing to justify
the consecutive aspect of his supervised-release sentence and vacated that portion of Defendant’s
sentence, we decline to reach Defendant’s arguments with respect to claimed errors in the district
court failing to reduce his sentence for good-time credits accrued during and for completing the
Bureau of Prison’s Residential Drug Abuse Program while he was serving out his 2004 sentence.
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