United States v. Key , 256 F. App'x 775 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0826n.06
Filed: December 6, 2007
05-6277
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DANA LAMONT KEY, ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS, District Judge.*
PER CURIAM. In this sentencing appeal, defendant Dana Lamont Key challenges
the 96-month term of incarceration that he received based upon his guilty plea to a charge
of being a felon in possession of a firearm. Key contends that in imposing sentence, the
district court exceeded its authority under 18 U.S.C. § 3661 by relying upon materially
untrue evidence, in violation of the defendant’s constitutional right to due process. On
review, however, we conclude that the record fails to support this contention. At the
sentencing hearing, the district court did not appear to rely upon the disputed comments
in determining Key’s sentence. Moreover, the comments were not of sufficient magnitude
to establish a due process violation. We have also reviewed Key’s sentence for
*
The Hon. Nancy G. Edm unds, United States District Judge for the Eastern District of Michigan, sitting
by designation.
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United States v. Key
reasonableness under the dictates of United States v. Booker, 543 U.S. 220 (2005), and
conclude that the district court imposed a reasonable sentence.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2004, the Chattanooga Police responded to a gun-related disturbance at
a home in Chattanooga, Tennessee. The woman who called in the complaint reported the
presence of a person with a gun on her porch and described his clothing to the operator.
When an officer arrived, the defendant began to run and discarded an object as he ran.
After the officer caught the defendant and arrested him, he returned to the location where
the object landed and found a loaded gun. The officer returned to the home of the caller,
where the caller gave him permission to enter. Inside the house, he found another gun.
The caller told the officer that the backpack containing the gun belonged to the defendant.
The grand jury charged Key with knowingly possessing a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). In light of Key’s prior felony convictions, the
prosecutor sought to enhance his sentence pursuant to U.S.S.G. § 2K2.1(a)(4)(A). After
accepting Key’s guilty plea, the district court sentenced him to 96 months, which is the
maximum sentence in the guideline range of 77-96 months found applicable by the
probation office. In doing so, the district judge indicated that he was considering an
upward departure from that range in light of Key’s extensive criminal background, pointing
to the seriousness of Key’s past conduct and his likely recidivism. He then gave the
defendant and his attorney the opportunity to speak, specifically inviting them to comment
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on the propriety of the proposed upward departure. Key’s attorney spoke first, noting that
the guideline range calculated under the sentencing guidelines already accounted for the
bulk of Key’s prior criminal history through his base offense level. The defendant
subsequently spoke on his own behalf, asking the court to be lenient because he was
unlikely to recidivate in light of his increasing maturity. Responding to this claim, the district
court made the following observations:
Mr. Key, it now falls on the shoulders of this Court to impose a sentence on
you. As you stand here in court today, you have something that is behind
you that’s attached to you. It’s not visible to most people, but it is there
nevertheless, and it is your past. It goes with you wherever you go, and it
influences what you do. That past is not a good past. You have 24 criminal
history points. That’s almost double the points necessary to get in the
highest category. The Court has considered an upward departure in your
case. The Court was actually considering a sentence at the statutory
maximum, which is 120 months. But the Court has decided to stay within the
guideline range in this case.
From your statement and your background, it is obvious that you are an
intelligent person. You have [been to] college. Very, very few defendants
who stand before this Court charged with what you are charged with even
finished high school. You not only finished high school, you went on to
college. And from the statement you just made to the Court, it is evident that
you are a very intelligent person. So the Court has someone with
intelligence, someone who has talent, someone who could be doing things,
with this type of background, and we have to ask ourselves how and why.
There are two possibilities the Court would like to offer. One is that you have
this history because you are a crack cocaine addict. When people become
involved with drugs, the natural person disappears, and the drug person
takes their place. The drug person is irresponsible, could care less about
other people, could care less about the laws of society, could care less about
the person. The only thing the drug person cares about is getting more
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drugs. They will commit crimes, they will deceive people, they will do all
kinds of things, just to get that next drug fix. That’s a possibility.
The other possibility is that because you are young your hormones are still
raging. Some of us, especially young men, have problems with our
hormones when we’re young, and we like to be rebellious, we like to cast off
authority, and we like to do things that get us in trouble. You are 31 years
old, so you are still young.
It may be there is some other reason to explain your background; I don’t
know. My source of information is just what I see in this presentence report
and what you have told me as you stand here. But I don’t think there is any
reason to believe that you are in a position at this point to reform yourself.
If the problem is your age and your hormones, those hormones are still going
to be acting on you for at least the next 10 or 15 years. If the problem is a
drug problem, you have been free of drugs since you have been in jail, so
the natural Dana Lamont [K]ey is talking to me, but as soon as you get back
on drugs again, the drug fiend is going to be in your body controlling your
actions. So that’s also not a reason for the Court to exercise leniency.
The judge then expressly discussed the various section 3553(a) factors before sentencing
Key to a term of 96 months. It is this sentence that the defendant now appeals.
DISCUSSION
Key asserts that the district court exceeded its discretionary authority under section
3661 by relying on “untrue facts” regarding the state of his hormones and that this error
violated his due process rights. In support of this theory, Key cites nonlegal sources that
purport to refute the district judge’s statements that a 31-year-old man may still be under
the influence of “raging hormones” for another 10 to 15 years. Key thus argues that the
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district court introduced misinformation at the sentencing hearing and then relied upon that
information, rendering the resulting sentence constitutionally defective.
In this regard, the defendant relies on the Supreme Court’s holding in Townsend v.
Burke, 334 U.S. 736 (1948). There, the district court sentenced Townsend following the
recitation of a deliberately inaccurate criminal history by an officer of the court, who testified
that Townsend had been convicted on certain criminal charges, some of which had actually
been dismissed or had resulted in acquittal. See id. at 739-41. The Supreme Court held
the sentence to be constitutionally defective and violative of Townsend’s right to due
process because it was based on an “extensively and materially” false foundation that the
defendant had no opportunity to correct. See id. at 741. Notably, it was not the mere
presence of misinformation but the sentencing court’s reliance upon this information that
rendered the sentence defective. See id.
An examination of United States v. Tucker, 404 U.S. 443 (1972), is also helpful in
reviewing Key’s claims. In Tucker, the Supreme Court considered a case in which the
sentencing judge had relied upon two defective prior convictions in imposing a heightened
sentence due to past criminal history. Tucker’s previous convictions, subsequently found
unconstitutional under Gideon v. Wainwright, 372 U.S. 335 (1963), likely caused the district
court “to impose a heavier sentence than it otherwise would have imposed.” Tucker, 404
U.S. at 445-46. The Supreme Court found that Tucker’s sentence was “founded at least
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in part upon misinformation of constitutional magnitude,” id. at 447, and therefore held that
his case merited a remand for re-sentencing. See id. at 449.
We need not decide whether the district court’s extemporaneous comments
regarding Key’s hormones were of comparable constitutional magnitude to those present
in Townsend and Tucker because the record does not reflect that the district court relied
upon the disputed statements in imposing Key’s sentence. The fact that the sentencing
court indicated its consideration of an upward departure, listened to Key’s request for
leniency, and made the disputed statements, yet opted to sentence within the guideline
range, militates against Key’s claim that the court relied on those statements in imposing
his sentence. Even though the district court disagreed with Key’s claim of maturity, it did
not actually impose an upward departure, which it might have done if acting in reliance on
a mistaken belief about the defendant’s hormone-based impetuosity. Instead, the court
appeared to be swayed by the arguments presented by the defendant and his attorney to
forego an increased sentence. Given that the sentencing court did not in fact depart from
the applicable sentencing range, we conclude that the court’s extemporaneous
observations regarding Key’s maturity – or lack thereof – did not affect the court’s ultimate
decision to impose a 96-month sentence. Key’s claim that the district court was influenced
by material inaccuracies and, therefore, violated his due process rights is simply
unfounded.
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Additionally, the sentencing court’s statements were obviously made in response
to Key’s argument for leniency. That the district judge offered personalized sentencing
remarks directly to the defendant is consistent with our past statement in support of such
a practice. See United States v. Collington, 461 F.3d 805, 810 n.3 (6th Cir. 2006) (“What
may be overlooked in appellate review is the fact that the district court does not issue its
sentencing remarks in a vacuum or exclusively with this Court’s review in mind . . . . We
should not begin persecuting the district courts for any niceties they may state in
communicating its sentence to the defendant.”).
Nor do we agree with Key’s claim that the sentencing court erred in considering
sentencing factors not authorized by section 3661. That statute provides that “[n]o
limitation shall be placed on the information concerning the background, character, and
conduct of a person convicted of an offense which a court of the United States may receive
and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661.
Key relies on Smith v. United States, 551 F.2d 1193 (10th Cir. 1977), however, to support
his proposition that the sole purpose of section 3661 is to allow courts to consider criminal
acts not resulting in conviction when imposing sentence. Although Smith does state that
the legislative purpose behind the passage of section 3661 was to “authorize the trial judge
to rely upon information of alleged criminal activity,” the case does not indicate that this is
the only function of the statute. See id. at 1196.
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Rather, section 3661 has been interpreted to allow judges to consider both non-
convicted criminal activity and a wide range of other factors in imposing sentences on
criminal defendants. See United States v. Garcia, 725 F.2d 52 (6th Cir. 1984) (per curiam)
(victim impact letters); see also United States v. Arce, 118 F.3d 335 (5th Cir. 1997) (non-
criminal conduct); United States v. Lee, 540 F.2d 1205 (4th Cir. 1976) (illegally obtained
evidence). Key’s effort to limit judicial discretion in sentencing to the consideration of
criminal background is contrary to the statute (which – as previously noted – authorizes
broad inquiry into the defendant’s background, character, and conduct), to the holdings of
the circuit courts, and to the United States Supreme Court’s language in Tucker, 404 U.S.
at 446 (stating that in imposing a sentence, a federal district “judge may appropriately
conduct an inquiry broad in scope, largely unlimited either as to the kind of information he
may consider, or the source from which it may come”). In this case, the sentencing court
had discretion to consider Key’s character, including what the judge may have perceived
to be his youthful impetuosity. Key’s claim that the district court’s actions exceeded the
scope of the discretion authorized under section 3661 is inaccurate and simply does not
present a basis for overturning the district court’s sentencing order.
In arguing that his sentence was imposed based upon an impermissible factor,
namely the district court’s use of materially untrue facts in his sentencing, the defendant
indirectly raises a question of substantive reasonableness. See United States v. Bailey,
488 F.3d 363, 368 (6th Cir. 2007). Although not asked outright to engage in review under
Booker, we conclude that such a review is advisable.
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In United States v. Bostic, we directed district courts to ask parties if they have any
objections following the pronouncement of a sentence but prior to adjourning the hearing.
See 371 F.3d 865, 872 (6th Cir. 2004). “However, when the district court asks at
sentencing whether there are any objections to the sentence and the appellant raises
none, we review the sentence only for plain error.” Bailey, 488 F.3d at 367 (citing United
States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006)). The sentencing court in this matter
fulfilled its obligation under Bostic, and neither party registered an objection. As a result,
the plain error standard applies here.1
A determination of reasonableness requires a two-part inquiry involving both
substantive and procedural elements. See United States v. Blackwell, 459 F.3d 739, 773
(6th Cir. 2006) (citing Webb, 403 F.3d at 383). A sentence will be considered procedurally
unreasonable when “the district judge fails to consider the applicable Guidelines range or
neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply
selects what the judge deems an appropriate sentence without such required
consideration.” Webb, 403 F.3d at 383 (footnote and internal citations omitted).
Substantive unreasonableness results when the district court “select[s] the sentence
arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent
1
Plain error occurs when there is “(1) error, (2) that is plain, and (3) that affect[s] substantial rights.
If all three conditions are m et, an appellate court m ay then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
United States v. W ebb, 403 F.3d 373, 380 (6th Cir. 2005) (internal quotation m arks and citation om itted,
alterations in the original).
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§ 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.”
Collington, 461 F.3d at 808 (alterations in the original) (citing Webb, 403 F.3d at 385).
Because Key’s sentence of 96 months falls within the advisory guidelines range of 77- 96
months, we credit it “with a rebuttable presumption of reasonableness.” United States v.
Williams, 436 F.3d 706, 708 (6th Cir. 2006).
Here, there is nothing in the record to indicate that Key’s sentence was procedurally
unreasonable, causing us to focus on the substantive reasonableness of his sentence.
Key contends that the sentencing court’s attribution of his immaturity to the state of his
hormones introduced “false evidence” into the sentencing decision, which he indicates is
an impermissible factor on which to base a sentence. To qualify as substantively
unreasonable, Key must show that the district court’s statements constitute an
impermissible factor and that the court relied upon the statements. If such an error is
present, we will then analyze it under the plain error test to determine whether the
defendant’s claim merits relief.
18 U.S.C. § 3553(a) lists factors for district courts to consider when imposing
sentences. In relevant part, section 3553(a) provides that the district court “shall consider
. . . the history and characteristics of the defendant.” We have previously held that a factor
is not impermissible when it is couched in the terms of section 3553(a). See Collington,
461 F.3d at 810. When considered in context, the judge’s comments in this case regarding
the reason for Key’s continued criminality appear to be offered as an analysis of the
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defendant’s history and characteristics, consistent with the language of section 3553(a).
By discussing Key’s drug addiction and immaturity, the sentencing court was discharging
its duty to consider fully the section 3553(a) factors.
Additionally, the record is clear that the district judge did not introduce the topic of
Key’s immaturity on his own but in response to Key’s argument for leniency in sentencing.
In Key’s request for a lower sentence, he asserted that he had “grown to become a much
. . . wiser individual whose desires in life are not the same as when I was young.” The
district court complimented Key on his obvious intelligence but rejected his claim of
maturity, explaining the basis of this rejection at least in part by discussing drug addiction
and hormones as possible causes of Key’s continued impetuosity. Hence, describing the
sentencing court’s response as reliance upon impermissible factors in sentencing
mischaracterizes the situation in which the court merely attempted to fulfill its sentencing
responsibilities by explaining its basis for rejecting Key’s argument.
Thus, when reviewed in context, the district court’s statements do not appear to
qualify as impermissible factors in the defendant’s sentencing. Even if we were to
conclude that the statements were based upon impermissible factors, the record does not
establish that the district court actually relied upon those statements in imposing Key’s
sentence. Because Key has not shown that there were impermissible elements relied
upon in his sentencing and because the record does not support any other bases for
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finding substantive unreasonableness, Key has not established the first prong of the plain
error review. Without showing error, Key cannot prevail on his claim.
Furthermore, even if we were to assume that the defendant could prevail on the first
two prongs of the plain error analysis, he has not shown that the error affected his
substantial rights. He offers no evidence that the district court, but for its statements
regarding his hormones, would have imposed a lesser sentence. Instead, the record
suggests that the court was considering an upward departure from the sentencing
guidelines range of 77-96 months and that the statements of the defense counsel and Key
were sufficient to convince the court to impose a sentence within the guidelines range,
contrary to its initial intent. The district judge’s disputed comments therefore did not affect
Key’s substantial rights by leading to the imposition of a more severe sentence.
CONCLUSION
Because we conclude that Key’s sentence was not imposed in violation of his due
process rights and was not unreasonable, we AFFIRM the district court’s sentencing order.
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