United States v. Wallace , 240 F. App'x 91 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0626n.06
Filed: August 28, 2007
No. 06-2474
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATE OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
STEVEN WALLACE, ) OPINION
)
Defendant-Appellant. )
BEFORE: COLE and GRIFFIN, Circuit Judges; WATSON, District Judge*
R. GUY COLE, JR., Circuit Judge. After Steven Wallace pleaded guilty to being a felon
in a possession of a firearm, possession with intent to deliver marijuana, and possession of a firearm
during the commission of a drug crime, the district court sentenced him to 200 months’
imprisonment. On appeal, Wallace challenges the reasonableness of this sentence. For the following
reasons, we AFFIRM.
I. BACKGROUND
On March 9, 2004, Michigan State police troopers stopped a car driven by Wallace after
observing that it had a damaged side-view mirror. When the troopers approached the car, they
*
The Honorable Michael H. Watson, United States District Judge, Southern District of Ohio,
sitting by designation.
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United States v. Wallace
smelled marijuana. Upon questioning, Wallace stated that he had been smoking marijuana at a
friend’s house. The troopers asked Wallace to exit the car, whereupon they frisked him and found
a small club-like weapon in his jacket pocket, tobacco rolling papers and numerous small Ziploc
bags in his trouser pockets, and a .22 caliber revolver in his trouser waistband. A search of the car
uncovered sixteen small bags of marijuana (totaling 76.56 grams), six blue tablets suspected of being
Valium, a small electronic scale, and twenty-two rounds of ammunition matching the revolver found
on Wallace. The troopers placed Wallace under arrest.
State criminal proceedings were initiated against Wallace, however, the state dismissed the
case and referred it to the United States Attorney’s Office for federal prosecution in accordance with
the “Project Safe Neighborhoods” program. Project Safe Neighborhoods “is a Department of Justice
initiative that encourages state and federal law enforcement, as well as other segments of the
community, to collaborate in the reduction of ‘gun crime in America.’” United States v. Thorpe, 471
F.3d 652, 655 (6th Cir. 2006). Under the initiative, state law enforcement officials refer cases
involving gun crimes to the local United States Attorney’s Office for federal prosecution instead of
state prosecution. Id.On May 13, 2004, Wallace was charged in a three-count indictment in federal district court
with (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2)
possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1); and (3)
possession of a firearm during the commission of a drug crime, in violation of 18 U.S.C. §
924(c)(1)(A). After initially pleading not guilty, on March 7, 2006, Wallace, represented by counsel,
pleaded guilty to all three counts without a plea agreement, preserving all his appellate rights.
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The district court sentenced Wallace on November 13, 2006. Because Wallace was convicted
under 18 U.S.C. § 924(c) and because he had been convicted of two prior state controlled-substance
felonies, the district court sentenced Wallace as a “career offender,” under U.S.S.G. § 4B1.1(c)(3)
(2004), which, even with a three-level reduction for acceptance of responsibility, suggested a
Guidelines range of 262 to 327 months’ imprisonment. Had Wallace not qualified as a career
offender, the Guidelines would have suggested a sentencing range of only 117 to 131 months’
imprisonment. After finding that Wallace’s Guidelines range was “slightly overstated” and that the
“length of sentence [was] [un]necessary to meet the factors set forth in the sentencing statute,” the
district court sentenced Wallace to 200 months’ imprisonment.
II. DISCUSSION
On appeal, Wallace argues that his sentence was both procedurally and substantively
unreasonable. This Court reviews a criminal sentence for reasonableness. United States v. Jones, 489
F.3d 243, 250 (6th Cir. 2007). “Reasonableness has both substantive and procedural components,
and accordingly, we 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.” Id. (citations
and internal quotation marks omitted). The United States Supreme Court recently decided Rita v.
United States, 127 S. Ct. 2456 (2007), which held that a court of appeals may apply a nonbinding,
rebuttable presumption of reasonableness to a within-Guidelines sentence. Id. at 2462–63. We do
not, however, “adopt a presumption of unreasonableness” because Wallace received a below-
Guidelines sentence. Id. at 2467 (“Appellate courts may not presume that every variance from the
advisory Guidelines is unreasonable.”).
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A. Procedural Reasonableness
“A sentence may be procedurally unreasonable if ‘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.’” United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006) (quoting United States
v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)). To satisfy this procedural requirement the “sentencing
judge should set forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita, 127
S. Ct. at 2468. The amount of reasoning required varies according to context, and we have never
required a “ritualistic incantation” of the § 3553(a) factors. United States v. McBride, 434 F.3d 470,
474 (6th Cir. 2006).
Here, the district court correctly calculated the applicable Guidelines range, noting its
advisory nature. The court then went on to address the relevant § 3553(a) factors. The district court
highlighted the unusual circumstances of this case: Wallace “came from a very good home”; “[h]is
siblings ha[d] not found themselves in the same position”; and Wallace was able “to function and
make strides and accomplish things under the watchful eye of the Court,” but not while free. See 18
U.S.C. § 3553(a)(1). The district then considered Wallace’s history and characteristics, noting his
age, his supportive family, his five children, his drug addiction, and that this was his fifth criminal
conviction involving “narcotics or firearms or both.” See id. The district court also considered the
nature of the offense and Wallace’s prior convictions, describing them as involving weapons and
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small quantities of drugs. See id. The district court considered the kinds of sentences available,
recommending that Wallace participate in a drug-treatment program and vocational-training
programs while in prison, and taking into account that at the time Wallace pleaded guilty he was
facing a Guidelines range of only 180 to 212 months’ imprisonment based on his then-known
criminal history. See id. §§ 3553(a)(3) and (a)(2)(D). Finally, the district court concluded that
Wallace’s suggested range of 262 to 327 months was “slightly overstated” and unnecessary to meet
the factors set forth in § 3553(a). For procedural reasonableness, this is all that this Court requires.
See, e.g., United States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir.2007) (“[A] sentence is
procedurally reasonable if the record demonstrates that the sentencing court addressed the relevant
factors in reaching its conclusion.”); accord Rita, 127 S. Ct. at 2548 (explaining that a sentencing
judge must set forth enough to satisfy appellate review and a full opinion is not necessary in every
case).
Nonetheless, Wallace maintains that his sentence was procedurally unreasonable because the
district court failed to take into account the racially discriminatory nature of the Public Safe
Neighborhoods program, which he contends disproportionately selects Blacks for federal
prosecution, and that the district court failed to appreciate that the Guidelines over-represented his
criminal history.
The district court was under no obligation to take into account that Wallace’s prosecution in
federal court was allegedly racially motivated. As an initial matter, this is not the sort of
circumstance contemplated in any of the § 3553(a) factors, and therefore the district court did not
err when it refused to vary its sentence downwardly because of it. In any event, to set forth a
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selective-prosecution claim, Wallace must present some evidence tending to show that the Project
Safe Neighborhoods program has a discriminatory effect and intent. See Thorpe, 471 F.3d at 657.
Wallace has not made this showing, and concedes as much.
Finally, Wallace’s contention that the district court failed to appreciate that the Guidelines
over-represented his criminal history is meritless. The district court expressly noted that the
Guidelines over-represented Wallace’s criminal history when it stated that “the guideline range is
slightly overstated,” and that the suggested Guidelines range “[was] [un]necessary to meet the factors
set forth in the sentencing statute.” To the extent that Wallace argues that the district court should
have varied more, that is properly seen as a substantive-reasonableness challenge and is addressed
below. Thus, we hold that the district court imposed a procedurally reasonable sentence.
B. Substantive Reasonableness
“A sentence may be substantively unreasonable where the district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors,
or gives an unreasonable amount of weight to any pertinent factor.” Jones, 489 F.3d at 252(alterations and internal quotation marks omitted).
In challenging the substantive reasonableness of his sentence, Wallace first contends that the
200-month sentence is unreasonable because it is significantly harsher than the maximum forty-six
months’ imprisonment he would have been facing had he been prosecuted in state court. Although
Wallace’s convictions may have carried a maximum sentence of only forty-six months in Michigan,
this has no bearing on Wallace’s federal sentence. Indeed, one of the principal motivations behind
the Guidelines is to eliminate sentencing disparities in the federal system. 18 U.S.C. § 3553(a)(6);
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see also, e.g., United States v. Davis, 458 F.3d 491, 495 (6th Cir. 2006) (“In Booker itself, the Court
indicated that reasonableness review will permit appellate courts to minimize sentencing disparities
between and among district courts (and between and among courts of appeals).”) (citing United
States v. Booker, 543 U.S. 220, 263 (2005)). As the Seventh Circuit has explained,
Reducing a federal prisoner’s sentence to accord with that of a
similarly situated state convict may decrease one sentencing disparity
but simultaneously enlarges another: that between the federal convict
and all similarly situated federal convicts. Because penalties vary
from state to state, sentence reductions to approach state penalties
similarly vary with the state in which the federal sentencing court sits,
unjustifiably creating disparities among federal convicts.
United States v. Wurzinger, 467 F.3d 649, 654 (7th Cir. 2006) (internal citation omitted). Thus,
Wallace’s argument that his sentence is too harsh in light of comparable state convictions is
unavailing.
Wallace also argues that the district court “failed to appreciate that the guidelines generally
encourage departures based upon over-representation of criminal history.” Wallace is wrong as a
matter of law and fact. First, U.S.S.G. § 4A1.3(b)(1) states that a downward departure may be
warranted if reliable information indicated that the defendant’s criminal history category
substantially over-represents the seriousness of the defendant’s criminal history. Under no
circumstances do the Guidelines mandate a departure. Second, the district court did downwardly vary
the sentence after concluding that the suggested Guidelines range was “slightly overstated” and
“[un]necessary to meet the factors set forth in the sentencing statute.” Indeed, the district court varied
sixty-two months below the low end of the suggested sentencing range—an almost twenty-five
percent downward variance.
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To the extent that Wallace argues that the district court should have varied more, Wallace
has presented nothing that would indicate that a larger variance was warranted. General allegations
that a sentence is longer than needed to achieve the goals of punishment articulated in § 3553(a) do
not help establish unreasonableness. United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006).
There is nothing to indicate that the district court imposed an arbitrary sentence, based the sentence
on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an unreasonable
amount of weight to one factor. To the contrary, the district court carefully reviewed and weighed
all relevant information provided by Wallace and the United States Probation Office before arriving
at Wallace’s sentence. The district court’s final sentence was not random, but a reflection of its
consideration of the Guidelines range and the § 3553(a) factors.
III. CONCLUSION
For these reasons, we AFFIRM the sentence imposed by the district court.
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