United States v. Lynch , 188 F. App'x 416 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0509n.06
Filed: July 20, 2006
No. 04-6418
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF KENTUCKY
)
RONALD LYNCH, )
)
Defendant-Appellant. )
__________________________________________
BEFORE: SILER, MCKEAGUE, and GRIFFIN, Circuit Judges.
PER CURIAM.
Ronald Lynch pled guilty to conspiring to manufacture methamphetamine in violation of 21
U.S.C. § 841(a)(1). Before the Supreme Court issued United States v. Booker, 543 U.S. 220 (2005),
the district court sentenced Lynch under the erroneous understanding that the U.S. Sentencing
Guidelines were mandatory. The district court sentenced Lynch to 150 months of imprisonment
followed by six years of supervised release, both within the advisory Guidelines range. The district
court remarked that Lynch greatly benefitted from being sentenced under the mandatory Guidelines
system, and that Lynch would have received 220 months in prison if the court were not bound by
the Guidelines. Lynch appeals,1 contending that his sentence must be vacated under Booker because
1
The government concedes that “[a]lthough Lynch waived his right to appeal his guilty plea
and conviction, he did not waive his right to appeal his sentence.” We agree.
No. 04-6418
United States v. Lynch
of the district court’s error in treating the Guidelines as mandatory. For the reasons that follow, we
hold that the Booker error was harmless under the circumstances and affirm Lynch’s sentence.
I.
The district court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under
28 U.S.C. § 1291.
II.
When a district court imposes sentence under the mistaken belief that the Guidelines are
mandatory, there is a presumption that the sentence constitutes plain error that prejudiced the
defendant and must be vacated. United States v. Martin, 438 F.3d 621, 639 (6th Cir. 2006) (citing
United States v. Barnett, 398 F.3d 516, 529 (6th Cir.), cert. dismissed, – U.S. –, 126 S. Ct. 33(2005)). We apply this presumption because of the “onerous burden” that a defendant would
ordinarily face in trying to prove that the district court would have imposed a lower sentence if it
knew that the Guidelines are advisory. United States v. Katzopoulos, 437 F.3d 569, 576-77 (6th Cir.
2006) (citing Barnett, 398 F.3d at 529).
To rebut the presumption, the government must present “clear and specific evidence that the
district court would not have . . . sentenced the defendant to a lower sentence” if it had treated the
Guidelines as advisory. Martin, 438 F.3d at 639 (quoting Barnett, 398 F.3d at 529); Cf., United
States v. Perry, 438 F.3d 642, 653 (6th Cir.) (“The government . . . makes no effort to rebut the
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United States v. Lynch
presumption of prejudice. We therefore conclude that Perry must be resentenced . . . .”), cert.
denied, – U.S. –, 126 S. Ct. 2045 (2006).2
Here, the government presents clear and specific evidence that the district court would not
have imposed a lighter sentence if it had realized that the Guidelines were merely advisory. After
pronouncing a mandatory Guidelines sentence of 150 months, the district court stated,
Now, the alternative sentence in the case that the Court would impose if we were
outside the guidelines would be significantly different than the 150-month period
that the Court has imposed. The Court would impose an alternative sentence . . . in
the event [that] the guidelines were challenged . . . and were found to be
unconstitutional.
But the alternative sentence that the Court would impose under those circumstances
would be a term of 220 months, followed by a term of six years of supervised release
with the same terms and conditions that I have indicated.
In short, the defendant benefits greatly by being sentenced under the guidelines in
this case . . . . He wouldn’t receive as much credit outside of the guidelines if the
Court were sentencing totally strictly away from the guideline provisions . . . .
Because the district court clearly and unequivocally expressed its intention to impose a specific
harsher sentence if the Guidelines were found to be non-binding, “it is impossible that the court’s
Booker error added so much as one day to [Lynch]’s sentence . . . .” Brown, 444 F.3d at 522.
Indeed, the district court’s Booker error would have been harmless even if the district court
had stated only that it would have imposed the same sentence if the Guidelines were not mandatory.
2
Contrast United States v. Brown, 444 F.3d 519, 522 (6th Cir. 2006) (“It is true the district
court believed the Guidelines to be mandatory and improperly enhanced Brown’s basic offense level
. . . . Nevertheless, any possible harm from these errors was nullified when the court later exercised
its discretion to grant a substantial upward departure that increased the sentence considerably above
the Guideline recommended range.”).
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United States v. Lynch
“[W]hen a district court imposes alternative, identical sentences, one under a regime in which
Guidelines enhancements are not mandatory, the harmlessness of any Booker error is established.”
United States v. Christopher, 415 F.3d 590, 593 (6th Cir. 2005); see also United States v. Till, 434
F.3d 880, 886 (6th Cir. 2006) (“[E]xplicit discussion of an identical alternative sentence seems to
be precisely the type of clear and specific evidence that is needed to rebut the presumption of
prejudice that this Circuit affords defendants . . . under post-Booker plain-error review.”) (internal
quotations and citations omitted); United States v. Wilson, 438 F.3d 672, 675 (6th Cir. 2006).
Accordingly, we hold that the district court’s error in treating the Guidelines as mandatory
did not prejudice Lynch, so Lynch fails to show plain error. FED. R. CRIM. P. 52(b).
III.
Lynch asserts, in passing, that his sentence was “excessive,” but he provides no argument,
let alone citation to binding or persuasive authority, on this score. It is well settled that “issues
adverted to by an appellant in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.” Shah v. Racetrac Petroleum Co., 338 F.3d 557, 571 n.8 (6th
Cir. 2003) (citation omitted). Therefore, Lynch has abandoned any claim that his sentence is
“excessive” or unreasonable.
In any event, Lynch neither identifies any purported error or omission in the district court’s
consideration of the Guidelines and the statutory factors, nor does he contend that the district court
inadequately explained its consideration of those items. Therefore, we have no basis to conclude
that his sentence was procedurally unreasonable. Lynch also fails to explain why or how his
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United States v. Lynch
sentence is excessive, so we have no basis to conclude that his sentence is substantively
unreasonable.
IV.
For these reasons, we affirm Lynch’s sentence.
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