United States v. Cook, Larone

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0253p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-2203
v.
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LARONE COOK, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-80796—Robert H. Cleland, District Judge.
Argued: May 12, 2006
Decided and Filed: July 20, 2006
Before: DAUGHTREY and COOK, Circuit Judges; CARR, Chief District Judge.*
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COUNSEL
ARGUED: Robert J. Dunn, Bay City, Michigan, for Appellant. Robert Cares, ASSISTANT
UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Robert J. Dunn,
Bay City, Michigan, for Appellant. Robert Cares, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
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OPINION
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JAMES G. CARR, Chief District Judge. This is a sentencing appeal. Larone Cook was
convicted of civil rights, racketeering, and drug violations in 2001. He appealed and the Sixth
Circuit remanded his case for resentencing in light of United States v. Booker, 543 U.S. 220 (2005).
On remand, Cook contends that the District Court made errors similar to the ones it made
at his first sentencing.
For the following reasons, Cook’s sentence shall be AFFIRMED.
*
The Honorable James G. Carr, Chief United States District Judge of the Northern District of Ohio, sitting by
designation.
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No. 05-2203 United States v. Larone Cook Page 2
BACKGROUND
On April 27, 2001, Larone Cook, a former Detroit police officer, was convicted on charges
of civil rights conspiracy, drug conspiracy, RICO violations, RICO conspiracy, and extortion
conspiracy.
At Cook’s sentencing, the District Court analyzed the evidence presented at trial as well as
other evidence provided specifically for sentencing purposes. Using facts gleaned from the record,
but not found by a jury or admitted by the defendant, it calculated a guideline range of 168-210
months and imposed a term of incarceration of 175 months.
Cook appealed. While his case was pending, the Supreme Court delivered its opinion in
Booker. The Sixth Circuit affirmed his conviction, but remanded for resentencing in light of Booker.
At resentencing, the District Court made similar findings of fact as it had at the first
sentencing and calculated his guidelines range the same way. The Court specifically stated the
calculations themselves, were correct. The Court, however, imposed a lighter sentence of 151
months, to take account of Cook’s family’s medical circumstances.
DISCUSSION
At his resentencing, Cook contends the District Court improperly calculated his guideline
range on the basis of facts other than those rendered in the verdict or which he had specifically
admitted. His claim is without merit.
Cook’s argument overstates the result in and the reach of Booker. It is true that, in
sentencing, a court may not rely on facts other than those rendered in the verdict or which the
defendant has specifically admitted to impose a mandatory enhancement. Shepard v. U.S., — U.S.
—, —, 125 S.Ct. 1254, 1257 (2005) (court may not impose career-criminal mandatory enhancement
based on improper judicial fact-finding). But that ruling has no bearing on advisory guideline
calculations.
Because the guidelines are now advisory and not mandatory, a District Court may rely on
extra-verdict facts or on those other than which the defendant has specifically admitted when it
calculates his sentence. United States v. Stone, 432 F. 3d 651, 654-55 (6th Cir. 2005)(“Booker did
not eliminate judicial fact-finding. Instead, district courts have “the option, after calculating the
Guideline range, to sentence a defendant outside the resulting Guideline range.”).
District courts are obligated only to consider the guidelines range among other factors when
making a final determination. Id. at 655 (“District courts ... must [] calculate the Guideline range as
they would have done prior to Booker, but then sentence defendants by taking into account all of
the relevant factors of 18 U.S.C. § 3553, as well as the Guidelines range.). See United States v.
Nguyen, 2006 WL 988272, *3 (6th Cir. 2006) (“[J]udicial fact-finding that is necessary to calculate
an advisory Guidelines range comports with the Sixth Amendment.”); United States v. Green 2006
WL 1307999, *5 (6th. Cir. 2006)(“Since Booker, this court has consistently turned aside
constitutional challenges to sentences premised on preponderance of the evidence judicial
factfinding.”).
Other circuits have treated judicial fact-finding as acceptable when used in conjunction with
non-mandatory sentencing guidelines. United States v. Yeje-Cabrera, 430 F.3d 1, 17 (1st Cir. 2005);
United States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005); United States v. Cooper, 437 F.3d 324,
330 (3d Cir. 2006); United States v. Sander, 2006 WL 1114038, at *1 (4th Cir.); United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005); McReynolds v. U.S., 397 F.3d 479, 481 (7th Cir. 2005);
No. 05-2203 United States v. Larone Cook Page 3
United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005)(en banc); United States v. Chau, 426
F.3d 1318, 1323-24 (11th Cir. 2005); United States v. Coles, 403 F.3d 764, 769 (D.C. Cir. 2005).
Here, relying on the record, the District Court properly calculated the defendant’s guidelines
range. It then sentenced Cook to a term of incarceration below the bottom end of that range,
implicitly acknowledging the now advisory nature of the guidelines. Thus, there was no error here
and the defendant’s sentence shall be AFFIRMED.