United States v. Hill

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0509n.06
Filed: July 19, 2007
No. 05-6808
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 WESTERN
v. ) DISTRICT OF TENNESSEE
)
LARRY HILL, ) OPINION
)
Defendant-Appellant. )
BEFORE: NORRIS, GILMAN, and SUTTON, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. In March 2005, defendant Larry Hill pleaded guilty to
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced to 110
months of imprisonment and three years of supervised release. Hill appeals his sentence, arguing
that the district court’s finding that he used the firearm to commit a robbery was unreasonable.
Following his plea, the district court held a sentencing hearing at which a number of
witnesses testified, including the robbery victim, the arresting police officer, and a co-defendant.
From all accounts, the victim was unloading beer from a delivery truck when he was robbed at
gunpoint. Hill was arrested in the area and identified by the victim as the assailant.
The district court determined that the robbery qualified as relevant conduct when it calculated
Hill’s advisory Guidelines range. After cross-referencing his offense with robbery pursuant to §
2K2.1(c)(1) and § 2B3.1 of the Guidelines, the court arrived at a base offense level of twenty. The
No. 05-6808
US v. Hill
district court then adjusted this base offense level to twenty-six, pursuant to § 2B3.1(b)(2)(B),
because Hill used a firearm during the commission of the robbery. When combined with a criminal
history category of V, the advisory Guidelines range was 110 to 137 months. After taking into
consideration the sentencing factors set out in 18 U.S.C. § 3553(a), the district court sentenced him
to 110 months of imprisonment. Hill now contends that evidence used to establish that he was the
robber was insufficient because there was conflicting testimony regarding the color of the shirt worn
by the robber, and thus he may have been false identified. He also contends that judicial fact-finding
is prohibited following the decision in United States v. Booker, 543 U.S. 220 (2005).
We review a sentencing court’s decision for reasonableness. United States v. Wells, 473 F.3d
640, 643 (6th Cir. 2007). “Booker did not eliminate judicial fact-finding. Instead, the remedial
majority gave district courts the option, after calculating the Guideline range, to sentence a defendant
outside the resulting Guideline range.” United States v. Stone, 432 F.3d 651, 654-55 (6th Cir. 2005),
cert. denied, 127 S. Ct. 129 (2006). Courts are directed to use the same method to calculate a
defendant’s Guidelines range as they would have done pre-Booker, which means finding facts to
support a sentencing enhancement by a preponderance of the evidence. United States v. Barton, 455
F.3d 649, 658 (6th Cir.), cert. denied, 127 S. Ct. 748 (2006); United States v. Dupree, 323 F.3d 480,
491 (6th Cir. 2003). Once a defendant’s Guidelines range is calculated, courts take into account all
of the relevant statutory factors to reach a sentence that is “sufficient” but not greater than necessary
to comply with the aims of 18 U.S.C. § 3553(a). United States v. Davis, 458 F.3d 505, 510 (6th Cir.
2006). When reviewing a sentencing decision, a district court’s findings of fact will only be set
aside if they are clearly erroneous. United States v. Gale, 468 F.3d 929, 934 (6th Cir. 2006). The
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No. 05-6808
US v. Hill
district court determined that the conflicting testimony regarding the robber’s shirt color was a detail
that was outweighed by the victim’s repeated identification of Hill as the robber. That finding was
not clearly erroneous.
The judgment of the district court is affirmed.
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