United States v. David Oliver , 516 F. App'x 419 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0201n.06
No. 11-2144
FILED
UNITED STATES COURT OF APPEALS Feb 25, 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
DAVID LEE OLIVER, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: GUY, DAUGHTREY, and STRANCH, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant David Oliver pleaded
guilty to a charge of aiding and abetting bank robbery and received a 102-month sentence.
On appeal, Oliver alleges that the district court committed an otherwise unidentified
constitutional error by failing to state explicitly that the court found Oliver guilty of the
offense to which he had just entered a guilty plea. Oliver also claims that the district court’s
upward variance and upward departure from the recommended Guidelines range were
both substantively and procedurally unreasonable. We find no reversible error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The record developed at Oliver’s plea hearing established that in January 2011, he
robbed the Huntington National Bank in Grand Rapids, Michigan, obtaining $8,000. Later
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that same day, Oliver told Albert Thomas that he had robbed a bank and suggested to
Thomas that they should commit another robbery together. Some two weeks later,
Thomas entered a branch of Fifth Third Bank alone and handed the teller a note written
by Oliver that said, “This is a robbery don’t make it a killing.” Thomas obtained $1,520 from
the teller, then ran to a location where he and Oliver had agreed to meet after the robbery.
Thomas was apprehended later that day; Oliver was arrested four months later and was
charged in a three-count indictment with robbing the Huntington National Bank, conspiring
to rob the Fifth Third Bank, and aiding and abetting the latter robbery. Pursuant to a plea
agreement, the government dismissed two of the counts in exchange for Oliver’s guilty plea
to the aiding-and-abetting charge contained in the remaining count.
At the plea hearing, the district judge determined that Oliver was competent to
proceed and that he understood the consequences of his plea, the potential sentence
under the applicable sentencing guidelines, and the rights he would sacrifice by pleading
guilty. Following the plea colloquy, the district judge declared, “I will accept your guilty
plea . . . . The adjudication of guilt is a matter of record.”
In preparing the presentence report, the probation officer took note of Oliver’s
history of mental and physical health problems, including a diagnosis of bipolar disorder
in 2005, his medical record of strokes and hypertension, and his long-term history of
alcohol and drug dependency. Also, despite noting “some hesitation” in crediting Oliver
with acceptance of responsibility, the probation officer recommended granting the
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defendant a three-point reduction in his offense level (from 24 to 21). At age 56, Oliver’s
criminal history extended in an almost unbroken line from juvenile offenses beginning in
1968 through the 2011 robberies, including convictions for burglary, larceny, felonious
assault, prison escape, robbery from the person, and multiple driving offenses. Although
all of these prior offenses were noted in the presentence report, only Oliver’s convictions
for two prior bank robberies in 1995, one drug charge in 2008, and two larceny charges in
2008 and 2010 were used to calculate the defendant’s criminal history category. Because
Oliver had been in jail for 10 of the last 15 years, the probation officer concluded that all
the earlier criminal charges were outside the applicable 15-year period provided in
§ 4A1.2(e) of the United States Sentencing Guidelines Manual.
Based upon the defendant’s Guidelines scores, the presentence report
recommended a sentencing range of 57 to 71 months. Prior to the sentencing hearing, the
government moved for an upward departure or variance, or both, arguing that Oliver’s
criminal history score understated his actual criminal record and risk of recidivism. At the
hearing, the court granted the government’s motion, finding “essentially no breaks in
criminal activity with the exception of . . . time that Mr. Oliver [wa]s in custody.” The court
also noted that the imposition of a lengthy sentence (11 to 30 years) in state prison for the
1995 bank robberies had not deterred Oliver from committing two more bank robberies
under virtually identical circumstances in the instant case. Focusing on the apparent lack
of deterrent effect, the district judge determined that he could not justify sentencing Oliver
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to serve less time for the 2011 robberies than the nine years he had actually served for the
1995 robberies.
As a result, the district court granted an upward departure in the criminal history
calculation. Without considering any criminal activity outside the 15-year period set by
§ 4A1.2(e), the court found that “category IV on this record [wa]s a substantial
understatement of both the seriousness of Mr. Oliver’s prior criminal history and the
likelihood of recidivism” and that category V was a “more appropriate basis [on which] to
assess [his criminal history].” After accounting for other factual considerations, the district
court determined that “an intended sentence of 102 months” would be appropriate. The
court noted that even with the variance, Oliver’s sentence would be within the guidelines
based on a category V criminal-history calculation.
DISCUSSION
District Court’s Adjudication of Guilt
On appeal, Oliver first alleges an error that we find completely baseless – both
legally and factually – asserting that the district court’s failure to declare “I find you guilty”
at the plea hearing constituted a constitutional violation and invalidates his conviction. The
government contends that because the defendant did not object during the hearing to the
district judge’s failure to invoke that terminology, we may review the alleged violation for
plain error only. We agree. It is well-settled that a “silent defendant has the burden to
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satisfy the plain-error rule.” United States v. Vonn, 535 U.S. 55, 59 (2002); see also United
States v. Martin, 668 F.3d 787, 791 (6th Cir. 2012). On plain-error review, the “defendant
‘must show that there is (1) error, (2) that is plain, and (3) that affects substantial rights.
If all three conditions are met, an appellate court may exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the fairness, integrity, or reputation
of judicial proceedings.’” United States v. Lalonde, 509 F.3d 750, 757-58 (6th Cir. 2007)
(quoting United States v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005)).
The defendant responds by contending that plain error review is improper because
the judge’s omission amounts to a “structural error,” constituting a “per se violation[ ] of a
constitutional right.” However, defense counsel has failed to identify what constitutional
provision has been violated. Moreover, counsel’s insistence that the district court also
failed to “memorialize [a finding of guilt] in writing on the record” is flatly contradicted by the
district court’s judgment. That document reads in part, “The defendant was adjudicated
guilty of these offense(s): 18 U.S.C. § 2113(a) . . . Bank Robbery.” In fact, counsel
designated the judgment for inclusion in the appellate record and should have been
familiar with its contents. We therefore decline to decide whether our review should be for
plain error or not, because we conclude that there was no error at all.
Procedural and Substantive Reasonableness of the Sentence
Oliver next contends that the 102-month sentence he received was unreasonable,
a question that we evaluate under an abuse-of-discretion standard of review. United
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States v. Phinazee, 515 F.3d 511, 514 (6th Cir. 2008) (citing Gall v. United States, 552
U.S. 38, 46 (2007)). “The reasonableness review is split into two parts: procedural
reasonableness and substantive reasonableness.” United States v. Benson, 591 F.3d 491,
500 (6th Cir. 2010). The procedural reasonableness of a sentence is determined by the
absence of a “‘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.’” United States v. Johnson, 640 F.3d 195,
201-02 (6th Cir. 2011) (quoting Gall, 552 U.S. at 51). “A sentence may be 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. Vowell, 516 F.3d
503, 510 (6th Cir. 2008) (alterations and internal quotation marks omitted). “Sentences
that are properly calculated and within the applicable Guidelines range are presumptively
reasonable.” Benson, 591 F.3d at 500. Sentences falling outside the range are neither
presumptively reasonable nor presumptively unreasonable. United States v. Tate, 516
F.3d 459, 469-70 (6th Cir. 2008) (citing United States v. Smith, 474 F.3d 888, 892 (6th Cir.
2007)).
Procedural Reasonableness
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An inquiry into the procedural reasonableness of a sentence proceeds in three
steps. “First, we must ensure that the district court ‘correctly calculat[ed] the applicable
Guidelines range’ which [is] ‘the starting point and initial benchmark’ of its sentencing
analysis.” United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007) (first alteration in the
original) (quoting Gall, 552 U.S. at 49); see also Johnson, 640 F.3d at 202. Second, the
district court must give “‘both parties the opportunity to argue for whatever sentence they
deem appropriate’” while “‘consider[ing] all of the § 3553(a) factors to determine whether
they support the sentence requested by [each] party.’” Id. at 579-80 (second alteration in
the original) (quoting Gall, 552 U.S. at 49-50). Third, the reviewing court must ensure that
the district court “‘set forth enough [of a statement of reasons] to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for exercising his
own legal decision making authority.’” Id. at 580 (alteration in the original) (quoting Rita v.
United States, 551 U.S. 338, 356 (2007)).
The preliminary question, then, is whether the district court committed a significant
procedural error in calculating the Guidelines range. In this case, the court accepted the
presentence report’s calculation of the appropriate range, before considering any
departures or variances from it. Neither party objected to the initial Guidelines range
identified by the district court.
Next, we must determine whether the district court sufficiently considered the
appropriate § 3553(a) factors when increasing Oliver’s sentence to 102 months, which
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reflected both a departure and a variance from the suggested Guidelines sentencing
range. In contrast to a departure, a “‘variance’ refers to the selection of a sentence outside
of the advisory Guidelines range based upon the district court’s weighing of one or more
of the sentencing factors of § 3553(a).” United States v. Grams, 566 F.3d 683, 686-87 (6th
Cir. 2009)(citing Smith, 474 F.3d at 896 n.3 (Gibbons, J., concurring)). Although departures
and variances are often evaluated based on the “same facts and analyses,” the standards
for each modification remain “distinct” and should be reviewed as such. Grams, 566 F.3d
at 687. Generally, departures pursuant to § 4A1.3 of the Guidelines necessitate
consideration of a narrower set of factors than § 3553(a) variances. See United States v.
Tristan-Madrigal, 601 F.3d 629, 635 (6th Cir. 2010) (“Simply stated, ‘variances from
Guidelines ranges that a District Court may find justified under the sentencing factors set
forth in 18 U.S.C. § 3553(a) include a much broader range of discretionary decisionmaking’
than departures” (quoting United States v. Stephens, 549 F.3d 459, 466-67 (6th Cir.
2008)).
The district court first increased Oliver’s criminal history category from IV to V.
Section 4A1.3(a) of the Sentencing Guidelines allows for such upward departures “when
a defendant’s criminal history category does not adequately reflect his criminal history.”
United States v. Griffin, 530 F.3d 433, 440 (6th Cir. 2008). The district court focused on
the limited period of the 15-year criminal history specified by the Guidelines. Because
Oliver was either in custody or involved in criminal activity during that time, the court
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considered Category IV an inadequate measure of Oliver’s “pattern of criminal
activity . . . [which] reflects badly and predicts ongoing recidivist conduct.”
This departure alone is insufficient to explain the 102-month sentence, however.
Increasing Oliver’s criminal history category from IV to V would justify a Guidelines
sentence of 70-87 months. To impose a 102-month sentence, the district court was
required to justify an upward variance. In this regard, the district court considered Oliver’s
criminal record in the context of “variance factor[s],” including the striking similarities
between the 1995 and 2011 robberies and the possibility that without a variance, the 2011
conviction could result in a sentence shorter than the sentence Oliver served following his
conviction for the 1995 bank robberies. The court looked to “the need to deter Mr. Oliver
from further wrongdoing, the need to deter other members of the public who may be
similarly inclined[,] . . . [t]he need to promote respect for the law generally[,] . . . and the
need to promote rehabilitative opportunities.” We find no abuse of discretion in the court’s
determination that a variance was appropriate.
Finally, for a sentence to be considered procedurally reasonable, the district court
must provide an adequate explanation for the sentence, so that a reviewing court may
properly understand the basis for the sentencing decision. The adequacy of an
explanation is evaluated under the same analysis, “‘regardless of whether the sentence
enhancement constitutes a Guidelines departure or a § 3553(a) variance.’” Johnson, 640
F.3d at 205 (quoting Vowell, 516 F.3d at 510). This requirement has two components:
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“‘First, a district court must explain the reasons justifying a departure, and, second,
evidence of those reasons must appear in the record.’” Id. (quoting Smith, 474 F.3d at
894).
As discussed above, the district court explained its upward variance and upward
departure by reference to the presentence report, which contained factual findings
undisputed by the parties. The district court discussed its concern with assigning Oliver
a criminal history category of IV, given the extent and continuity of the defendant’s criminal
activity. The district court further analyzed Oliver’s criminal record – in particular the
similarity between the 1995 and 2011 robberies – in explaining why a longer sentence was
necessary to deter Oliver and others and to punish the defendant’s recidivism. The district
judge did not abuse his discretion in relying upon these factors in light of the record before
him.
The defendant faults the district court for failing to take into consideration the role
that his bipolar disorder played in his extensive criminal history. However, the district judge
was unquestionably aware of Oliver’s mental condition, which was discussed in the
presentence report and at both the plea hearing and the sentencing hearing. The issue
was also raised in the defendant’s sentencing memorandum, in the context of asking for
placement in a “federal institution that could best assist [Oliver].” The district judge
responded to these arguments by calling 102-month sentence “adequate punishment”
given Oliver’s “very real addiction problem and . . . mental health dimensions.” The district
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judge thus showed himself to be “fully aware of defendant’s various physical ailments” by
imposing a sentence that he believed to “take[ ] them into account” and to be “appropriate.”
Rita, 551 U.S. at 358. The district judge’s explanation, although somewhat cursory, is
sufficient to show the court’s consideration of Oliver’s health, a possible § 3553(a) factor
counseling against a longer sentence.
Because the district judge followed the dictates of this court and the United States
Supreme Court in calculating the Guidelines range and in considering the appropriate
sentencing factors, we conclude that the 102-month sentence imposed upon Oliver was
procedurally reasonable.
Substantive Reasonableness
In arguing that his sentence is substantively unreasonable, Oliver first objects to the
district court’s consideration of prior convictions greater than 15 years old. The record
reflects, however, that at Oliver’s sentencing hearing the district judge took notice of
several appropriate § 3553(a) factors, focusing much of its discussion on § 3553(a)(2)(B)
(“the need for the sentence imposed . . . to afford adequate deterrence to criminal
conduct”). Such concern with deterrence and recidivism was not arbitrary but, instead,
reflected the district court’s weighing of the parties’ contentions. In particular, the
parallelism between the 1995 and 2011 robberies weighed heavily in the district court’s
reasoning. The court also observed that Oliver would be provided medical and addiction
treatment in custody, suggesting the relevance of § 3553(a)(2)(D) (“to provide the
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defendant with needed education or vocational training, medical care, or other correctional
treatment in the most effective manner”) as well. Given his consideration of these factors,
we cannot say that the district judge abused his discretion by concluding that a 102-month
sentence was appropriate.
The defendant also argues that his “return to the criminal justice system . . . must
be evaluated in light of his bipolar disorder.” Citing a University of Texas study, the
defendant notes that those with “untreated bipolar disorder are more likely to have contact
with the criminal justice system and have higher rates of incarceration than the general
public,” as well as substance abuse issues. The defendant suggests that this causal
relationship renders his sentence substantively unreasonable for two reasons.
Oliver contends, first, that his bipolar disorder helps explain his extensive criminal
history and, as a result, that the sentencing court was misguided in its evaluation of his
recidivism. Specifically, Oliver posits that his repeated offenses are not proof that his prior
sentences have failed to deter future criminal activity but are instead the consequence of
his mental illness. But the district court clearly took Oliver’s mental illness into
consideration in his sentencing. Indeed, the judge seemed to feel that he could have
imposed an even greater custodial sentence but found it unnecessary precisely because
of Oliver’s mental and physical condition, finding 102 months “adequate” punishment
because of Oliver’s “real addiction problem” with “mental health dimensions.”
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Second, in light of his mental condition, Oliver suggests that 102 months may be so
severe a sentence as to “impair his rehabilitation,” citing two cases to bolster his argument.
Unfortunately for Oliver, neither case supports his claim. In United States v. Collington,
461 F.3d 805, 808 (6th Cir. 2006), we found a district court’s downward variance
reasonable for a defendant whom the court considered to be an “outlier.” The defendant
did not have an extensive criminal history, but still fell into category IV under the Guidelines
– a result the judge found inappropriate. As part of his sentencing, the judge also ordered
mental health counseling for the defendant to confront childhood trauma; however, the
judge gave no indication that the defendant’s mental health condition figured into his
decision to grant a downward variance. Id. at 809. Similarly, in Gall, the Supreme Court
quoted a district court’s determination that the defendant’s lack of criminal history and
withdrawal from the criminal conspiracy, as well as his post-offense conduct, suggested
that probation was a more appropriate punishment than incarceration. 552 U.S. at 44-45.
Again, neither the district court nor the appellate courts suggested that Gall’s mental health
condition warranted a lower sentence because a longer sentence for a mentally ill
individual would “impair his rehabilitation.” Thus, the district court’s failure to view a 102-
month sentence as a potential inhibition to Oliver’s rehabilitation was not obviously
unreasonable. Nor did the district court abuse its discretion in deciding that a 102-month
sentence adequately balanced the needs for rehabilitation and punishment.
Oliver has thus failed to establish that the sentence imposed upon him was
substantively unreasonable.
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CONCLUSION
For the reasons set out above, we conclude that the district court properly complied with
the requirements of Federal Rule of Criminal Procedure 11 in accepting Oliver’s guilty plea.
In addition, the 102-month sentence imposed upon the defendant was, under the facts of
this case, both procedurally and substantively reasonable. We therefore AFFIRM the
judgment of the district court.
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