United States v. Brumley , 213 F. App'x 416 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0034n.06
Filed: January 9, 2007
No. 05-6747
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
JIMMY GENE BRUMLEY, )
)
Defendant-Appellant. )
BEFORE: MOORE and CLAY, Circuit Judges; BELL, District Judge.*
BELL, District Judge. Defendant-Appellant Jimmy Brumley entered a plea of guilty
to two counts of possession with intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1), and was sentenced as a career offender to 144 months in prison. On
appeal, Brumley asserts that his sentence was unreasonable because it was greater than
necessary to comply with the sentencing mandates of 18 U.S.C. § 3553 and because it was
based upon prior criminal convictions that were neither proved beyond a reasonable doubt
*
The Honorable Robert Holmes Bell, Chief United States District Judge for the
Western District of Michigan, sitting by designation.
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nor admitted to by the defendant. For the reasons set forth in this opinion we affirm the
sentence imposed by the district court.
I.
Brumley was on supervised release when he was arrested and indicted on one count
of possession with intent to distribute hydromorphone (Dilaudid), a Schedule II controlled
substance, and one count of possession with intent to distribute dihydrocodeinone (Vicodin),
a Schedule III controlled substance, in violation of 21 U.S.C. § 841(a)(1). Brumley pleaded
guilty to both counts of the indictment. The base offense level for these offenses was eight.
However, because Brumley had two prior felony controlled substance convictions, he was
classified as a career offender, which raised his offense level to thirty-two. See U.S.S.G.
§ 4B1.1. After an adjustment for acceptance of responsibility, his guideline imprisonment
range was 151-188 months.
At sentencing Brumley requested the court to fashion a sentence substantially below
the guideline range that would take into consideration his drug addiction, the age of his prior
drug convictions, his lack of education and his steady work history. Brumley suggested that
a sentence of no more than 60 months would be adequate to punish this offense conduct and
enable him to address his drug problem. The district court sentenced Brumley to 144 months
in prison.
II.
A district court is required to impose a sentence “sufficient, but not greater than
necessary,” to comply with the purposes of 18 U.S.C. § 3553(a)(2). United States v.
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Foreman, 436 F.3d 638, 640 (6th Cir. 2006). On appeal, we review a sentence for
“reasonableness.” United States v. Johnson, 467 F.3d 559, 563 (6th Cir. 2006) (quoting
United States v. Jones, 399 F.3d 640, 650 (6th Cir. 2005)). “[T]his Court's reasonableness
review focuses on the factors listed in 18 U.S.C. § 3553(a), one of which is the Sentencing
Guidelines themselves.” United States v. Duckro, 466 F.3d 438, 442 (6th Cir. 2006) (citing
United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006)). “This reasonableness inquiry
has both a procedural and a substantive component, requiring review of both the procedures
used and factors considered in determining the sentence and the punishment itself.” United
States v. Dexta, —F.3d — , 2006 WL 3589790, *2 (6th Cir. 2006) (citing United States v.
Webb, 403 F.3d 373, 383 (6th Cir. 2005)).
Brumley contends that his sentence was substantively unreasonable because of the
wide disparity between the guideline range for his offense of conviction and the sentence he
received as a career offender. Based upon the quantity of drugs in his possession, the
guideline range for the offense of conviction was 12-18 months. As a career offender he
faced a guideline range of 151-188 months. Although the district court sentenced Brumley
to 144 months, which was below the guideline range, Brumley nevertheless contends that the
sentence was unreasonable because it was twelve times the length of the advisory guideline
sentence for the offense of conviction.
A sentence that is within the advisory guideline range is entitled to a presumption of
reasonableness. United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006). Brumley's sentence
was not within the guideline range. However, because it was below the guideline range, and
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because we are considering a challenge to the sentence by Brumley rather than by the
government, his sentence is entitled to the presumption of reasonableness. Thus, although
the sentence enhancement for Brumley’s career offender status greatly increased his
guideline range, a sentence within or below that range was presumptively reasonable.
“This rebuttable presumption does not relieve the sentencing court of its obligation
to explain to the parties and the reviewing court its reasons for imposing a particular
sentence.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006). “[T]he record
must still reflect that the district court considered the relevant sentencing factors provided
in section 3553(a).” Ely, 468 F.3d at 404 (citing Foreman, 436 F.3d at 644). A district court
must provide adequate articulation of its reasoning for imposing a particular sentence in
order to allow for meaningful appellate review. Richardson, 437 F.3d at 553-54. The district
court is not required to engage in a ritualistic incantation of the § 3553(a) factors, but its
opinion should be “sufficiently detailed to reflect the considerations listed in § 3553(a).”
McBride, 434 F.3d at 474.
Brumley’s sentencing transcript confirms that the district court did not rely solely on
the sentencing guidelines in arriving at Brumley’s sentence. In addition to the guideline
range the district court considered the nature and circumstances of the offense and the history
and characteristics of the defendant, including Brumley’s history of multiple drug trafficking
convictions, the fact that Brumley committed this offense while he was on supervision, and
Brumley’s urgent need for drug counseling. 18 U.S.C. § 3553(a)(1). The district court
discussed the serious nature of the offense for which Brumley was convicted, as evidenced
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by the potential harm that distribution causes to others and the high maximum penalty set by
Congress. Id. at § 3553(a)(2)(A). The district court also discussed Brumley’s need for drug
counseling, the need to deter others from similar conduct, the need to protect the public, the
kinds of sentences available, and the need to avoid unwarranted sentence disparity between
Brumley and other career offenders. Id. at § 3553(a)(2)(B) & (C), § 3553(a)(3), &
§ 3553(a)(6).
Brumley concedes that the district court did go through a detailed analysis of each of
the factors in § 3553(a) as it related to the defendant, his crime, and his history. (Appellant's
Br. at 13-14.) He nevertheless contends that the procedural concerns of reasonableness have
not been met because the district court failed to analyze how the term he arrived at would
further the objectives of § 3553. (Appellant's Br. at 14). Brumley notes that the district court
rejected Brumley’s suggestion that a sentence of no more than 60 months would be adequate
to punish the offense conduct in this case, but gave no rationale for its imposition of the 144
month sentence in its stead.
We have stated that “[w]here a defendant raises a particular argument in seeking a
lower sentence, the record must reflect both that the district judge considered the defendant’s
argument and that the judge explained the basis for rejecting it.” Richardson, 437 F.3d at
554. This statement requires the district court to address the defendant’s arguments
regarding factors that warrant a shorter sentence. It does not, however, require the district
court to respond to every request for a specific term of incarceration. A defendant’s “mere
allegation that the sentence imposed is greater than necessary to achieve the goals of
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punishment outlined in § 3553(a) is insufficient to rebut the presumption of reasonableness,”
and the fact that the district court did not give a defendant the more lenient sentence he
requested does not justify setting his sentence aside. Dexta, 2006 WL 3589790, *3.
In sentencing Brumley, the district court addressed the § 3553(a) factors and explained
the need for a long sentence. The district court responded to the sentencing factors Brumley
raised, including his criminal history and his serious substance abuse problem. The district
court recommended that Brumley be placed in an institution where he could participate in a
long-term drug treatment program. The district court recognized that it was not bound by the
guideline range and imposed a sentence below the applicable range. The district court’s
articulation of its reasoning for imposing the particular sentence was adequate to allow for
meaningful appellate review. We find that the district court’s sentence was both procedurally
and substantively reasonable.
III.
Brumley’s second challenge to his sentence is based upon his contention that the
district court erred in sentencing him as a career offender because his prior criminal
convictions had neither been proven beyond a reasonable doubt nor admitted to by the
defendant. Brumley recognizes that this Court has rejected this proposition, but wishes to
preserve this assignment of error in the event of a later change in the law from the Supreme
Court.
It is well settled in this Circuit that Apprendi v. New Jersey, 530 U.S. 466 (2000), does
not require the nature of prior convictions to be determined by a jury. United States v.
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Townsend, — F.3d —, 2006 WL 3311285, *6 (6th Cir. 2006). See also United States v.
Beasley, 442 F.3d 386, 391 (6th Cir. 2006) (“[T]he Supreme Court has uniformly excepted
‘the fact of a prior conviction’ from its general rule that sentence-enhancing facts must be
found by a jury and proved beyond a reasonable doubt.”); Richardson, 437 F.3d at 555
("[C]ontrolling law, both before and after Booker, counsels that a judge can make factual
findings about a defendant’s prior convictions without implicating the Sixth Amendment.");
United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (“Apprendi does not require the
nature or character of prior convictions to be determined by a jury.”). We are not in a
position to overturn this controlling precedent. See United States v. Jackson, 466 F.3d 537,
540 (6th Cir. 2006).
III.
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.