United States v. Oliver , 260 F. App'x 807 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0056n.06
Filed: January 16, 2008
No. 05-6550
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 Eastern
JAMES S. OLIVER, District of Kentucky
Defendant-Appellant.
/
BEFORE: RYAN and DAUGHTREY, Circuit Judges; COHN*, District Judge.
RYAN, Circuit Judge. Defendant James S. Oliver appeals his sentence
imposed following his guilty plea for using marijuana while in possession of firearms under
18 U.S.C. § 922(g)(3). We find no basis to disturb Oliver’s sentence and therefore affirm
the district court’s judgment.
I.
In July 2002, Oliver was indicted on six counts relating to marijuana trafficking,
including possession of firearms in furtherance of drug trafficking crimes. When local
police executed a search warrant at Oliver’s residence, they discovered approximately
1,600 marijuana plants, 30-40 pounds of processed marijuana, drug paraphernalia, and
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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cash. Police also recovered a total of nineteen firearms, four of which were loaded, and
one of which appeared to be a semi-automatic assault rifle.
Oliver pleaded guilty to possessing an assault rifle in furtherance of drug trafficking
crimes, in violation of the Public Safety and Recreational Firearms Use Protection Act
(Assault Weapons Ban) (AWB), codified at 18 U.S.C. § 924(c)(1)(a) and (B)(i); using
marijuana while in possession of firearms, in violation of 18 U.S.C. § 922(g)(3); and two
counts of forfeiture of the firearms and marijuana, pursuant to 18 U.S.C. § 924(d)(1) and
21 U.S.C. § 853. In exchange for this plea and Oliver’s previous cooperation, the
government dismissed the charges relating to manufacturing marijuana with intent to
distribute and requested that the court depart ten percent below the guidelines on the user
of marijuana offense due to substantial assistance to authorities.
At the time of Oliver’s crimes, the AWB offense carried a mandatory 120 month
minimum sentence, to be served consecutively to any confinement imposed for the drug
trafficking offenses. 18 U.S.C. § 924(c)(1)(D)(ii). Under the 2002 United States
Sentencing Guidelines, in effect at the time of sentencing, the recommended range for
Oliver’s other offenses totaled 46 to 57 months’ imprisonment. Both parties agreed to this
range at sentencing.
The district court sentenced Oliver to the mandatory 120 months’ imprisonment for
violation of the AWB to run consecutively with 40 months’ imprisonment for the drug
related offenses—a six month downward departure from the guidelines’ minimum
recommendation.
As permitted in the plea agreement, Oliver appealed his sentence to this court on
the issue of whether a particular weapon he possessed at the time of arrest qualified as
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a semi-automatic assault weapon pursuant to the AWB. See United States v. Oliver, 390
F.3d 482 (6th Cir. 2004). We affirmed Oliver’s sentence, but the United States Supreme
Court subsequently vacated it in light of United States v. Booker, 543 U.S. 220 (2005).
See Oliver v. United States, 544 U.S. 995 (2005). We then reinstated our former opinion
and remanded to the district court for further consideration. United States v. Oliver, 416
F.3d 531 (6th Cir. 2005).
Upon remand, the district court noted that the repeal of the AWB in September 2004
did not affect that part of Oliver’s sentence. After a thorough discussion of the relevant
factors enumerated in 18 U.S.C. § 3553(a), and considering the mandates of Booker, the
district court reimposed Oliver’s original sentence.
II.
Oliver does not attack the 120 month mandatory minimum sentence for the violation
of the AWB, but argues that, in light of the fact that the AWB’s mandatory 120 month
minimum sentence requirement was repealed, the 40 months’ imprisonment for the related
drug offense is unreasonable because of the length of the resulting overall sentence.
We review a district court’s sentencing decision for reasonableness, which requires
both a substantive and procedural review. United States v. Davis, 458 F.3d 505, 510 (6th
Cir. 2006). We must “consider not only the length of the sentence but also the factors
evaluated and the procedures employed by the district court in reaching its sentencing
determination.” United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), cert. denied,
546 U.S. 1126 (2006).
Since Booker, the federal sentencing guidelines are “advisory” to the overall
calculation of a defendant’s sentence. Booker, 543 U.S. at 245. District courts must give
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consideration to the factors listed in 18 U.S.C. § 3553(a), such as the nature and
circumstance of the offense, the need to afford adequate deterrence, and the need to
avoid unwarranted sentence disparities.
The Supreme Court’s recent decision in Gall v. United States, 128 S. Ct. 586 (2007),
instructs us to review all sentences “under a deferential abuse-of-discretion standard” as
it relates to reasonableness. Id. at 591. In other words, it is an abuse of discretion for a
district court to impose an unreasonable sentence.
Police arrested Oliver in possession of almost 1,600 marijuana plants, a substantial
amount of processed marijuana, and nineteen firearms, four of which were loaded and
accessible.
Although the district court sentenced Oliver to the same 40 months’ imprisonment
it originally imposed, it did so only after considering the relevant § 3553(a) sentencing
factors and departing downward by six months from the bottom of the applicable advisory
guideline range of 46 to 57 months.
We do not agree with the defendant’s argument that the repeal of the mandatory
minimum component of the AWB, effective some two years after Oliver’s AWB guilty plea,
somehow renders the newly imposed consecutive 40 month drug sentence unreasonable,
either separately or as a component of the overall sentence total of 160 months.
It is axiomatic that the repeal of a statute does not abate a penalty previously
imposed under the statute, nor does it lessen the punishment for other related offenses.
See 1 U.S.C. § 109.
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For the reasons we have detailed, the 40 month sentence for the drug conviction
is entirely reasonable, and its reasonableness is not affected by the fact that it must be
served consecutive to the lawful (and unappealable) 120 month AWB sentence.
III.
The district court’s judgment is AFFIRMED.