United States v. Hill , 207 F. App'x 599 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0878n.06
Filed: December 5, 2006
No. 06-5132
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
On Appeal from the
v. United States District Court for
the Western District of Tennessee
FENIS EWIN HILL,
Defendant-Appellant.
______________________________
Before: KENNEDY, COLE and COOK, Circuit Judges
KENNEDY, J. Fenis Ewin Hill (hereinafter “defendant”) seeks review of his sentence,
asserting that (1) the district court erred in classifying him as an armed career criminal pursuant to
§ 4B1.4 of the Sentencing Guidelines, and (2) the sentence was not “reasonable” within the meaning
of United States v. Booker. We find that defendant’s objection to his characterization as an armed
career criminal is not properly before this court for disposition, and the sentence prescribed was
reasonable in view of the district court’s consideration of the purposes of punishment declared in §
3553(a)(2). Thus, we affirm the district court.
BACKGROUND
On July 27, 2003, defendant threatened Brocknie Bray with a firearm and attempted to abduct
her. Defendant pled guilty on May 12, 2004, to charges of Attempted Especially Aggravated
Kidnapping and Aggravated Assault. The district court sentenced him to sixteen years for those
offenses. On May 26, 2004, defendant pled guilty to the offense of being a convicted felon in
possession of a firearm shipped in interstate commerce in violation of 18 U.S.C. § 922(g)(1). The
prescribed range for this offense is 21 to 27 months. However, because the district court found that
defendant had four previous “violent felony” convictions, it categorized him as an armed career
criminal subject to a minimum of fifteen-years imprisonment pursuant to 18 U.S.C. § 924(e). As
such, the Guidelines range applicable to defendant was 188 to 235 months. The district court
sentenced defendant to 222-months imprisonment, three-years supervised release, participation in
a mental health and sex offender treatment program, and drug and alcohol abuse testing and
treatment.
Defendant filed a timely appeal, in which he asserted that the district court (1) overstepped
its authority when it determined whether his past convictions constituted “violent felonies” for the
purposes of 18 U.S.C. § 924(e); (2) double-counted substantially related episodes as separate violent
offenses and wrongly characterized one of his past convictions as violent; (3) miscalculated his
offense level and criminal history score; and (4) imposed improper conditions regarding his
supervised release. This court affirmed the district court’s classification of the defendant as an
“armed career criminal” but vacated the sentence and remanded the case for resentencing in light of
the Supreme Court’s intervening disposition of United States v. Booker, 543 U.S. 220 (2005). On
December 6, 2005, the district court held the resentencing hearing, where it reinstated the previous
sentence,1 stating that it was appropriate even though the Guidelines had been made advisory.
1
The district judge did readjust the sentence to 221-months imprisonment in response to
counsel’s indication that defendant was entitled to fourteen-months’ credit at the time of the
sentence, rather than thirteen-months as previously calculated.
2
Defendant argues on appeal that his resentencing did not comport with the post-Booker
sentencing regime because the district court failed to ensure that the sentence was “sufficient, but
not greater than necessary, to comply with the purposes [of punishment],” as required by 18 U.S.C.
§ 3553(a). Defendant also preserves his objection as to the authority of the district court to assess
sentencing enhancements. However, his counsel has acknowledged that case law in this circuit
currently forecloses his argument regarding the validity of the enhancement, and this court rejected
this very argument in defendant’s previous appeal. United States v. Hill, 150 F. App’x 416, 419 (6th
Cir. 2005) (unpublished); see United States v. Beasley, 442 F.3d 386, 391 (6th Cir. 2006); see also
United States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005). As no further explanation of our
rejection of this argument is necessary, we will devote our discussion to reviewing the
reasonableness of the sentence.
ANALYSIS
Defendant asserts that the sentence imposed is unreasonable because the district court failed
to comply with 18 U.S.C. § 3553(a), as interpreted in United States v. Foreman, 436 F.3d 638, 644
(6th Cir. 2006), requiring that “a sentence [be] sufficient, but not greater than necessary, to comply
with the purposes” of sentencing. Following United States v. Booker, courts must examine the
sentencing goals expressed in § 3553(a) in addition to the Guidelines themselves when sentencing
defendants. Booker, 543 U.S. at 259-60. Section 3553(a) instructs the sentencing court to “impose
a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in
paragraph (2) of this subsection.” Paragraph (2) requires that the court consider:
the need for the sentence imposed–(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (B) to
afford adequate deterrence to criminal conduct; (C) to protect the public from
3
further crimes of the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in
the most effective manner.
In United States v. Williams, this court emphasized its refusal to interpret Booker to require
sentencing courts to engage in a “ritualistic incantation” of the statutory factors to avoid remand or
reversal. 436 F.3d 706, 709 (6th Cir. 2006). However, defendant correctly notes that, in United
States v. Foreman, the court explained that “Williams does not mean that a sentence within the
Guidelines is reasonable if there is no evidence that the district court followed its statutory mandate
to ‘impose a sentence sufficient, but not greater than necessary’ to comply with the purposes of
sentencing in section 3553(a)(2).” United States v. Foreman, 436 F.3d at 644. Ultimately, this court
is tasked with ensuring that the district court has articulated its consideration of § 3553(a) to an
extent that preserves our ability to review the sentence for reasonableness. United States v. McBride,
434 F.3d 470, 478 (6th Cir. 2006).
Here, the transcripts of the district court’s proceedings, both from the initial sentencing
hearing and the resentencing hearing, reveal that the judge carefully considered the purposes of
punishment articulated in § 3553(a)(2) when determining defendant’s sentence. At the initial
sentencing, on September 14, 2004, the district court articulated its concern with the seriousness of
defendant’s criminal conduct, explaining to defendant, “You’re being sentenced to this sentence
because you possessed a gun after this long, violent history of felonies.” See § 3553(a)(2)(A).
Although the district court considered the gravity of these offenses, when viewed in isolation, to
warrant a longer term of imprisonment, the court noted the age of the defendant, ultimately
determining that a shorter sentence would provide adequate deterrence because it would “effectively
4
take [him] out of the criminal business until [he would be], hopefully, too old to continue these
violent felonies.” See § 3553(a)(2)(C).
While the district court expressed hope that the defendant would survive beyond the term of
his sentence and return to the community after its service, it explained that the defendant “[would
have] to control [his] actions better than [he had] done in the past.” See § 3553(a)(2)(B). The court
provided conditions of supervised release that would afford the defendant correctional treatment
tailored to his needs, mandating participation in drug and alcohol testing and treatment and mental
health and sex offender treatment, in addition to recommending that defendant take advantage of
anger management courses and sex offender courses available in prison. See § 3553(a)(2)(D).
At the resentencing hearing, the district court was similarly conscientious in ensuring that
it “impose[d] a sentence sufficient, but not greater than necessary, to comply with the purposes set
forth in paragraph (2) [of § 3553(a)].” When determining the appropriate punishment, the court
reflected upon the violent, sexual nature of the convictions, expressing a concern that “sexual
predators don’t generally cure themselves or get cured” and subsequently concluding that, “given
the length of this sentence and the nature of [the] convictions, it’s clear that prison is the only option
that is available.” See § 3553(a)(2)(A), (B). The resentencing court carried out the mandate of §
3553(a) when it contemplated “what message [to] send to other people in our community who want
to possess firearms after they are convicted of felonies,” thus indicating consideration of the need
for the sentence to reflect the seriousness of the offense, promote respect for the law, and afford
adequate deterrence against commission of such offenses. See § 3553(a)(2)(A), (B). Referring to
defendant’s sentence specifically, the district court proclaimed that “[the defendant was] exactly
what Congress had in mind when the armed career criminal provision was passed” and that “[p]eople
5
who have long, violent histories get punished worse for possessing guns than those who don’t,”
suggesting that the court considered the propriety of the punishment and concluded that it was just.
See § 3553(a)(2)(A). As defendant’s sentencing and resentencing reflect careful consideration of
the purposes of punishment expressed in § 3553(a)(2), we are not willing to say that the sentence the
district court prescribed was unreasonable.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
6