United States v. Mario Collier , 506 F. App'x 459 ( 2012 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 12a1225n.06
No. 11-2376
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 27, 2012
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
MARIO COLLIER, ) THE WESTERN DISTRICT OF
) MICHIGAN
Defendant-Appellant. )
) OPINION
Before: DAUGHTREY, KETHLEDGE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. This case involves a three-part challenge
to a 144-month prison sentence imposed on Appellant Mario Collier for possession with intent to
distribute twenty-eight or more grams of cocaine base. Collier argues that his sentence is
procedurally and substantively unreasonable and that the district court erroneously considered
rehabilitation as a factor when determining sentence length. We disagree and AFFIRM the decision
of the district court.
I. FACTS AND PROCEDURAL HISTORY
Collier was indicted on three separate counts of possession with intent to distribute twenty-
eight or more grams of cocaine base. (PSR 1.) Collier pled guilty to Count One, possession with
intent to distribute twenty-eight grams or more of cocaine base, which alleged the sale of a controlled
substance at a gas station. (PSR ¶ 2, 4, 12.) Counts Two and Three of the indictment describe two
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Untied States v. Collier
additional drug-related incidents, which were taken into account in sentencing. The first incident
involved a drug sale between Collier and a confidential informant that was observed by a narcotics
agent. (PSR ¶ 18.) The second incident occurred when a narcotics agent received an anonymous
tip that Collier was at a motel in Kalamazoo, Michigan. (PSR ¶ 20.) The agents found 29.52 grams
of cocaine base, $4,283 in cash, and a digital scale in Collier’s hotel room. (PSR ¶ 22-27.)
In exchange for Collier pleading guilty to Count One and incorporating the facts from all three
counts in the Plea Agreement, the Government moved to dismiss Counts Two and Three. Id. The
district court approved the Plea Agreement and dismissed Counts Two and Three. Id. The district
court also granted the United States’ motion for a three-point reduction based on acceptance of
responsibility. (Page ID108.)
Before sentencing, the district court asked if either party had any legal objections to the
sentencing. Id. The district court recognized that “there was a defense objection on the conversion
of certain currency into drug equivalent, and that was withdrawn in the sentencing materials from
the defense.” Id. The defense first stated this objection in the first footnote of the Defendant’s
Sentencing Memorandum:
Mr. Collier had several objections to the initial PSR. Counsel submitted those
objections to the probation officer in a letter dated September 20, 2011. After
counsel’s objection meeting with the probation officer, there was an unresolved
objection to paragraph 28. On October 11, 2011, counsel discussed the objection
with Mr. Collier, and Mr. Collier decided to withdraw the objection.
(Page ID37.)
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Collier’s Sentencing Memorandum also stated that a copy of the PSR was provided to Collier
and that he had no objections to it. Id. For these reasons, the district court determined that neither
party wished to object. (Page ID108.)
The district court then heard extensive testimony from Collier and his attorney about the use
of drugs in Collier’s family, his own history with drugs, his desire to get his life back on track, his
desire to seek a greater spiritual understanding of his actions, his willingness to accept responsibility
for his actions, and his desire to be given another chance at life. (Page ID108-15.) The district court
also acknowledged receiving letters from Collier in support of his Motion for a Downward Variance.
(Page ID107.) The Government then urged the court to impose a severe sentence because of
Collier’s propensity to “return [] to drug dealing.” (Page ID116.) The Government also cautioned
the district court not to rely on Collier’s statements because Collier had probably made similar
assurances to the court in the past. Id.
Collier moved for a downward variance from the Guidelines and pled guilty to Count One
of the indictment. (Page ID107.) The district court decided the career-offender sentence
enhancement from a category IV criminal to a category VI criminal should apply, resulting in a base
offense level of 34. (Page ID118.) The district court also deemed a slight downward variation
appropriate given the severity of the Guidelines’ sentence, Collier’s success in structured programs,
and the fact that addiction and mental health issues were intertwined with Collier’s criminal
activities. (Page ID108; 117-19.)
In rendering the 144-month prison sentence, the district court expressed hope that Collier
would “acquire, specific patterns of behavior that he can learn to emulate that allow him to make
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good on that intention when he’s out of custody and in a setting where he’s struggled.” (Page
ID120.) The district court also ordered that Collier undergo a 500-hour substance abuse program,
recommended a mental health assessment and treatment, imposed supervised release for five years,
and assessed fines totaling $1,600. (Page ID121-24.)
II. ANALYSIS
1. Procedural Reasonableness
Collier contends that his sentence was not procedurally reasonable because the district court
failed to ask whether Collier read and discussed the PSR with his attorney. Collier also argues the
district court failed to consider his non-frivolous argument raised during sentencing.
Where a criminal defendant fails to object below, we review for plain error. United States
v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (citing United States v. Emuegbunam, 268 F.3d 377,
406 (6th Cir. 2001)). The district court asked both parties on two separate occasions if they had any
objections to the sentence. (Page ID108, 123-24.) Thus, Collier had a meaningful opportunity to
object. United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). Collier’s claims are, therefore,
reviewed for plain error because he failed to object. Gardiner, 463 F.3d at 459.
a. Failure to ask if Collier read and discussed PSR report
The sentencing court must verify that the defendant and the defendant's attorney have read
and discussed the presentence report and any addendum to the report. Fed. R. Crim. P. 32(i)(1)(A).
A trial judge need not expressly ask the defendant if he and his counsel have read and discussed the
report. United States v. Osborne, 291 F.3d 908, 910 (6th Cir. 2002). “[T]he court need only
somehow determine that defendant and counsel have had an opportunity to read and discuss the
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[presentence report].” Id. (quoting United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988)
(second alteration in original) (emphasis omitted)).
The district court did not commit plain error by failing to ask Collier if he read and discussed
the PSR with his counsel. The record supports the inference that Collier read and discussed the PSR
with his attorney and that his substantial rights were not affected. See United States v. Tarpley, 295
F. App'x 11, 17 (6th Cir. 2008) (holding that even though defendant stated he did not read and
discuss PSR with his counsel, he could not show any error that affected his substantial rights).
Collier had several objections to the initial PSR, but he withdrew his objections after speaking with
counsel. (Page ID37.); see United States v. Jeross, 521 F.3d 562, 586–87 (6th Cir. 2008)
(concluding that the district court did not err in finding that defendant had the opportunity to review
and discuss his PSR when, among other things, defendant had withdrawn and waived all objections
to the presentence investigation report in this matter). Therefore, Collier ultimately failed to
demonstrate reversible error.
B. Consideration of a non-frivolous argument
District courts are required to consider all factors and non-frivolous arguments brought to
their attention by a defendant. United States v. Simmons, 587 F.3d 348, 361 (6th Cir. 2009); United
States v. Blackwell, 459 F.3d 739, 774 (6th Cir. 2006). Collier argued for a downward variance from
the Guidelines on the erroneous grounds that his state convictions should not count toward the armed
career criminal sentence enhancement. (Page ID56-59.) We have held that 28 U.S.C. § 994(h)(2)(B)
authorizes the Sentencing Commission to count state crimes toward the career-offender
enhancement. See United States v. Najar, No. 98-2050, 2000 WL 799331, at *3 (6th Cir. June 9,
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2000). Collier’s argument is meritless and the district court was not required to address it. Simmons,
587 F.3d at 361. The district court, however, explicitly evaluated whether a downward variance was
reasonable based on arguments articulated by the defense in its motion. (Page ID117.) Accordingly,
the district court judge did not commit plain error.
2. Substantive reasonableness
We review claims challenging the substantive reasonableness of a sentence for an abuse of
discretion based on the totality of the circumstances. United States v. Christman, 607 F.3d 1110,
1117-18 (6th Cir. 2010). During sentencing, a district court must consider the factors set forth in §
3553(a) and arrive at a sentence “sufficient, but not greater than necessary, to comply with” those
factors. 18 U.S.C. § 3553(a). A district court abuses its discretion if it “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.” Id. at 1118 (citing United States v.
Conatser, 514 F.3d 508, 520 (6th Cir. 2008)).
Collier asserts that his sentence was not substantively reasonable because the district court
gave unreasonable weight to Collier’s past offenses, failed to consider relevant sentencing factors,
and selected an arbitrary sentence that does not correspond to the court’s reasoning. Collier also
argues that his sentence contradicts the plain language of 18 U.S.C. § 3553 in the following ways:
the sentence does not reflect the seriousness of the crime, the sentence does not offer adequate
deterrence for criminal conduct, and the district court erroneously considered rehabilitation as a
sentencing factor.
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a. Reasonableness of weight given to past offenses
Collier contends that the district court’s assignment of a category VI criminal history
overstates his criminal history. His claim is without merit. See 18 U.S.C. § 3553(a)(1), (2)(B-C)
(requiring the district court to “consider . . . the history and characteristics of the defendant,” “afford
adequate deterrence to criminal conduct,” and to “protect the public from further crimes.”). The
district court focused not only on Collier’s criminal history, but also on his underlying issues,
expressing concern in seeing “a person [with] addiction and mental health issues that are inextricably
intertwined in the criminal wrongdoing here.” (Page ID118-20.) The district court in this case
appropriately considered Collier’s previous criminal conduct without giving unreasonable weight
to past offenses.
b. Consideration of relevant sentencing factors
The district court need not explicitly reference each factor in its sentencing determination.
United States v. Caswell, 456 F.3d 652, 657 (6th Cir. 2006). “[We have] never required the ritual
incantation of the factors to affirm a sentence.” Id. (citing United States v. Johnson, 403 F.3d 813,
816 (6th Cir. 2005) (internal quotation marks omitted)). “[T]here must still be sufficient evidence
in the record to affirmatively demonstrate the court’s consideration of them.” Id. (quotation marks
omitted)
Collier contends that the district court failed to consider his disadvantaged childhood during
sentencing. Collier’s contention is baseless. The PSR described Collier’s difficult childhood and
family history with drugs. (PSR ¶79, 82, 83, 96.) Moreover, Collier described his disadvantaged
childhood to the district court during sentencing. (Page ID110-11.) Collier’s sentencing
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memorandum and attachments also discuss Collier’s upbringing. (Page ID37 & 48.) A review of
the sentencing transcript confirms that the district court listened to Collier’s statements regarding
his childhood. (Page ID116.) Moreover, the district court’s references to the evidence in the
records, albeit in the context of Collier’s substantive abuse and mental health issues, suggest that the
materials regarding Collier’s childhood were reviewed. This court has explained that regular,
recurring circumstances need not be discussed by a judge each and every time they are raised by a
criminal defendant, especially in the absence of some further development suggesting an exceptional
hardship. United States v. Temple, 404 F.App’x 15, 20 (2010) (quoting United States v. Pettie, 242
F. App’x 313, 317 (6th Cir. 2007)). Unfortunately, troubled childhoods plague many criminal
defendants. Collier has not presented arguments or supporting evidence that would suggest an
arguably meritorious claim for a lesser sentence based on his difficult childhood. United States. v.
Pettie, 242 F. App’x 313, 316 (6th Cir. 2007). Even assuming arguendo that the district court did
not consider Collier’s troubled childhood, the district court was not bound to consider this argument
because Collier did not actually point to his trouble childhood as a mitigating factor. As such, the
district court did not abuse its discretion by not explicitly mentioning Collier’s difficult childhood
during sentencing.
c. Arbitrariness of sentence
Collier asserts that the district court selected an arbitrary sentence and that 144 months is an
arbitrary middle ground. The district court correctly determined the career-criminal sentence
enhancement should apply, and partially granted Collier’s Motion for a Downward Variance because
the sentence was too severe for the crime. The district court adequately explained the reasoning for
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the sentence and the downward variation from the Guidelines. Collier’s contention, therefore, does
not overcome the presumption of reasonableness. See United States v. Dexta, 470 F.3d 612, 615–16
(6th Cir. 2006).
d. Plain language of 18 U.S.C. §3553Collier contends that his sentence neither reflects the seriousness of the crime, nor offers
adequate deterrence for criminal conduct. He further asserts that the district court erroneously
considered rehabilitation as a sentencing factor.
i. Seriousness of the crime
Collier contends that his sentence is too long to adequately reflect the seriousness of the
crime. After appropriately applying the career-criminal sentence enhancement, the district court
determined that the Guidelines recommended a range too severe for Collier’s individual
circumstances. (Page ID120.) The district court imposed a sentence of 144 months, 40 months
below the minimum recommended by the Guidelines. Id. Collier’s contention, therefore, is
unsupported by the record. See Dexta, 470 F.3d at 615–16.
ii. Deterrence and public protection
Collier contends that the 144 month sentence is not necessary to deter him from future
criminal conduct or to protect the public from future crimes. This argument is misplaced because
the district court spent a significant amount of time balancing the need for a downward deviation
from the Guidelines with the need to deter Collier from future crime. (Page ID120.) Moreover, we
presume that a sentence within Guidelines is reasonable. United States v. Brinley, 684 F.3d 629, 636
(6th Cir. 2012).
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iii. Rehabilitation in light of Tapia
Collier argues that his sentence is contrary to the Supreme Court’s holding in Tapia v. United
States, 131 S. Ct. 2382 (2011), because it was motivated in part by the court’s desire to rehabilitate
Collier. In support, Collier points to several statements the court made during the sentencing
hearing, but these statements are viewed out of context. The court’s comments that Collier did well
in “structured settings” reflects the court’s belief that the career-offender enhancement does not
entirely fit Collier, not a concern about rehabilitation. Although the court did express hope that
Collier could learn better behaviors, “[a] court commits no error by discussing the opportunities for
rehabilitation within prison[.]” United States v. Tolbert, 459 F. App’x 541, 548 (6th Cir. 2012) (first
alteration in original). Here, the court was expressing its opinion about how Collier should spend
his time in jail, not giving a rationale for the length of Collier’s sentence. These statements reflect
the court’s belief that Collier needed a long sentence to deter him from future wrongdoing, which
is proper. See 18 U.S.C. § 3553(a)(2)(B); United States v. Tolbert, 668 F.3d 798, 803 (6th Cir.
2012).
Collier cannot ask for a reduced sentence because he does well in structured settings, and
then—after he getting exactly what he wants—argue that the court focused impermissibly on his
rehabilitation. Morever, clearer evidence is generally necessary to vacate under Tapia. For example,
we vacated a sentence when the court said that the defendant “needed maximum time to recover
from an addictive situation.” United States v. Sanders, 472 F. App’x 376, 382 (6th Cir. 2012). And
we vacated a sentence when the district court “based its above-guidelines sentence on its belief that
the medical and psychological treatment that [the defendant] needed would take a considerable
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period of time[.]” United States v. Censke, 449 F. App’x 456, 462 (6th Cir. 2011). In contrast, this
case is more akin to Tolbert, where we upheld a sentence that the district court said would “afford
[]Defendant an opportunity to rehabilitate himself.” Tolbert, 459 F. App’x at 548–49. The district
court had ample grounds on which to base Collier’s sentence without considering rehabilitation.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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