United States v. Marcellus Thompson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0401p.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. 08-3760
v.
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Defendant-Appellant. -
MARCELLUS THOMPSON,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-00565-002—Lesley Brooks Wells, District Judge.
Submitted: October 13, 2009
Decided and Filed: November 20, 2009
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Before: KENNEDY and ROGERS, Circuit Judges; HOOD, District Judge.
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COUNSEL
ON BRIEF: Mark R. DeVan, BERKMAN, GORDON, MURRAY & DeVAN,
Cleveland, Ohio, for Appellant. Laura McMullen Ford, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellee.
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OPINION
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HOOD, Senior District Judge. Defendant-Appellant Marcellus Thompson
(“Thompson”) appeals the district court’s sentence upon his plea of guilty to a charge
of possession with intent to distribute cocaine base. The district court determined that
the applicable advisory sentencing guideline range was 24 to 30 months and sentenced
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The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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No. 08-3760 United States v. Thompson Page 2
Thompson to 28 months’ imprisonment. Thompson claims that this sentence is improper
because the district court calculated his sentencing guideline range by including a two-
point enhancement for a juvenile confinement that occurred less than two years prior to
the instant offense. The two-point enhancement increased the sentencing guideline
range from 18 to 24 months to 24 to 30 months. Thompson argues that his sentence is
procedurally unreasonable in contravention of § 4A1.1(e) of the U.S. Sentencing
Guidelines (the “Guidelines”) and requests that his sentence be vacated and remanded
to the district court for resentencing. In response, the United States of America has
argued that the guideline range was properly calculated and that the sentence was
procedurally reasonable.
For the reasons which follow, the opinion of the district court is AFFIRMED.
I. Factual and Procedural Background
On April 21, 2008, Thompson pleaded guilty to possession with intent to
distribute 1.9 grams of cocaine base. Based on his prior criminal convictions, the Pre-
Sentence Report (“PSR”) reflected that Thompson had a criminal history score subtotal
of six points. The PSR assigned the following point values to Thompson’s prior
offenses:
(1) February 20, 2002: Adjudicated delinquent for violence against his sister,
resulting in no custody. One point under USSG § 4A1.1(c).
(2) January 31, 2003: Adjudicated delinquent for joyriding, resulting in no
custody. One point under USSG § 4A1.1(c).
(3) April 3, 2003: Drug possession conviction, resulting in a commitment to six
months juvenile custody at the Ohio Department of Youth Services, released on May 19,
2004. Two points under USSG § 4A1.1(b).
(4) October 21, 2003: Drug trafficking conviction, resulting in no custody. One
point under USSG § 4A1.1(c).
No. 08-3760 United States v. Thompson Page 3
(5) October 13, 2004: Adjudicated delinquent for drug possession, resulting in
no custody. One point under USSG § 4A1.1(c).
(6) December 28, 2004: Adjudicated delinquent for assault, resulting in no
custody. One point under USSG § 4A1.1(c).
(7) December 29, 2004: Adjudicated delinquent for drug possession, resulting
in continuation of parole. One point under USSG § 4A1.1(c).
(8) May 28, 2006: Possession of marijuana conviction, resulting in a sentence of
three days incarceration. One point under USSG § 4A1.1(c).
These offenses add up to a total of nine criminal history points. Under USSG
§ 4A1.1(c), only a maximum of four points can be attributed to prior convictions that
lack a significant term of incarceration. As a result, the PSR assigned a total of four
points for all of the convictions listed above except the April 3, 2003 conviction for drug
possession. For the April 3, 2003 conviction, which included a significant term of
incarceration, the PSR assigned two points. In total, the PSR assigned six criminal
history points for all prior convictions.
Thompson’s April 3, 2003, drug possession conviction occurred when he was
sixteen years old and resulted in a six-month sentence of confinement at the Ohio
Department of Youth Services. Because Thompson committed the instant offense less
than two years following his release from custody for the April 3, 2003, juvenile offense,
the PSR assessed two additional points to Thompson’s criminal history score, under
USSG § 4A.1.1(e), for a total of eight criminal history points.
Thompson objected at sentencing to the two additional points under USSG
§ 4A1.1(e), contending that § 4A1.1(e) does not apply to juvenile offenses. Thompson
admitted that his juvenile offenses would be included in his criminal history points based
on prior convictions under USSG § 4A1.1(b). On appeal, however, he argues that
because juvenile offenses are specifically included in the language of § 4A1.2(d) in
reference to calculating sentences under § 4A1.1(a), (b) and (c), but not specifically in
No. 08-3760 United States v. Thompson Page 4
reference to § 4A1.1(e), § 4A1.1(e) necessarily excludes confinements for juvenile
offenses and the district court erred in including the juvenile offenses under that section.
II. Jurisdiction
The district court had jurisdiction pursuant to 18 U.S.C. § 3231 because
Thompson was charged with and convicted of a offense against the laws of the United
States; specifically, a violation of 18 U.S.C. § 841(a)(1) . This Court has jurisdiction
over the instant appeal pursuant to 28 U.S.C. § 1291, which confers appellate
jurisdiction over final orders of the district court.
III. Standard of Review
This Court reviews a criminal sentence for reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). The
reasonableness analysis has two tiers: procedural reasonableness and substantive
reasonableness. Id. At issue in this case is whether the district court committed a
procedural error by improperly calculating Thompson’s criminal history score. Properly
calculated sentences under the Guidelines are credited with a rebuttable presumption of
reasonableness. United States v. McGee, 494 F.3d 551, 554 (6th Cir. 2007) (citing Rita
v. United States, 551 U.S. 338 (6th Cir. 2007)). This Court reviews the district court’s
factual findings in calculating the Guidelines range for clear error, but its legal
conclusions are reviewed de novo. United States v. Galloway, 439 F.3d 320, 322 (6th
Cir. 2006).
IV. Analysis
Thompson argues that the PSR and, by extension, the district court, erred in
calculating his criminal history points under USSG § 4A1.1(e) because the instant
offense occurred within two years of his release from juvenile confinement. USSG
§ 4A1.1(e) states:
(e) Add 2 points if the defendant committed the instant offense less than
two years after release from imprisonment on a sentence counted under
[USSG § 4A1.1](a) or (b) or while in imprisonment or escape status on
No. 08-3760 United States v. Thompson Page 5
such a sentence. If 2 points are added for item (d), add only 1 point for
this item.
USSG § 4A1.1(e). Applicable § 4A1.1(b) states, “(b) Add 2 points for each prior
sentence of imprisonment of at least sixty days not counted in (a).” USSG § 4A1.1(a).
Application Note 2 clearly includes juvenile confinements under USSG § 4A1.1(b),
stating in part:
An adult or juvenile sentence imposed for an offense committed prior to
the defendant’s eighteenth birthday is counted only if the confinement
resulting from such sentence extended into the five-year period preceding
the defendant’s commencement of the instant offense.
USSG § 4A1.1(b) cmt. n.2 (2007). USSG § 4A1.2(d)(2) specifically directs that two
points be added “under § 4A1.1(b) for each adult or juvenile sentence to confinement
of at least sixty days if the defendant was released from such confinement within five
years of his commencement of the instant offense.” USSG § 4A1.2(d)(2) (emphasis
added).
Thompson concedes that Application Note 2 to § 4A1.1(b) and the text of
§ 4A1.2(d)(2) require the inclusion of his juvenile offenses and confinements in the
calculation of his criminal history points under § 4A1.1(b) and § 4A1.2(d)(2).
Thompson argues that, because § 4A1.1(e) does not explicitly state that juvenile
confinements are included for the purpose of the two-point enhancement under
§ 4A1.1(e), Thompson’s juvenile confinement cannot be counted under that section.
Thompson takes the position that § 4A1.2(d) “provides for the computation of
juvenile sentences by reference to three subsections, § 4A1.1(a), (b), and (c)” but that
§ 4A1.1(e) is “[c]onspicuously absent from § 4A1.2(d).” (Appellant Brief, p. 9). As a
result, Thompson argues that the language of the Guidelines excludes juvenile sentences
from § 4A1.1(e) because of the maxim of statutory construction, “expressio unius est
exclusio alterius,” or the inclusion of one (§ 4A1.1(a), (b), and (c) in § 4A1.2(d)) implies
the exclusion of the other (§ 4A1.1(e) from § 4A1.2(d)). Both of Thompson’s arguments
are without merit.
No. 08-3760 United States v. Thompson Page 6
This Court has directly and indirectly addressed the issue of whether a juvenile
sentence of confinement is counted in a defendant’s criminal history score under USSG
§ 4A1.1(e) on at least three occasions. United States v. Hanley, 906 F.2d 1116 (6th Cir.
1990); United States v. Kirby, 893 F.2d 867 (6th Cir. 1990) (per curiam); and United
States v. Hall, 279 Fed.Appx. 359, 2008 WL 2224804 (6th Cir. 2008) (unpublished
opinion). Thompson attempts to distinguish Hanley by stating that the question in
Hanley was whether commitment for a juvenile offense constitutes “imprisonment”
under USSG § 4A1.2(d), not whether juvenile commitments are included under
§ 4A1.1(e) for the two-point enhancement. Thompson is correct in stating that the
question in Hanley was not the same as in this case; however, this Court in Hanley
explicitly stated that “commitment to a juvenile facility constitutes an ‘imprisonment’
for the purposes of applying the two-point enhancement provision in Guidelines
§ 4A1.1(e).” Hanley, 906 F.2d at 1120. This Court directly considered this issue in
Kirby and found that “because the juvenile adjudication was properly counted under
section 4A1.1(b), the two-point enhancement was proper under section 4A1.1(e), since
that section is keyed to a sentence counted under section 4A1.1(b).” Kirby, 893 F.2d at
868. This Court’s precedent in Hanley and Kirby clearly establishes that the district
court properly included Thompson’s juvenile sentence in its calculation of his criminal
history points under § 4A1.1(b) and (e).
Other circuits have agreed that “the commission of an offense within two years
of release from a term of juvenile confinement which is assigned criminal history points
under section 4A1.1(b) results in two additional criminal history points under USSG
§ 4A1.1(e).” United States v. Allen, 63 F.3d 411, 412 (8th Cir. 1995) (per curiam); see
also United States v. Cruz, 106 F.3d 1134, 1135 n.1 (3d Cir. 1997). Upon reviewing a
case with facts similar to the one at bar, the First Circuit held:
The defendant does not seriously contend that his juvenile conviction
was improperly counted under section 4A1.2(d)(2)(A) and, by reference,
under section 4A1.1(b); indeed, any such contention would be specious
on its face. It follows inexorably that the two-point enhancement under
section 4A1.1(e) was properly assessed . . . Because the defendant
committed the instant offense less than two years after leaving [juvenile
No. 08-3760 United States v. Thompson Page 7
confinement], the district court correctly included two additional CHPs
[criminal history points] under section 4A1.1(e).
United States v. Unger, 915 F.2d 759, 764 (1st Cir. 1990) (internal citations omitted).
Thompson admits that his juvenile confinement must be included in his criminal
history score under § 4A1.1(b). USSG § 4A1.1(e) requires that the district court “[a]dd
2 points if the defendant committed the instant offense less than two years after release
from imprisonment on a sentence counted under [USSG § 4A1.1](a) or (b),” which is the
case here. USSG § 4A1.1(e). Therefore, “because the juvenile adjudication was
properly counted under section 4A1.1(b), the two-point enhancement was proper under
section 4A1.1(e), since that section is keyed to a sentence counted under section
4A1.1(b).” Kirby, 893 F.2d at 868 (1990).
Despite Thompson’s argument to the contrary, this and other circuits have agreed
that juvenile confinement, the release from which occurs less that two years prior to the
instant offense, properly generates an enhancement of two criminal history points for the
purposes of determining a defendant’s sentencing guideline range. Under this
calculation, the district court properly attributed six criminal history points to
Thompson’s prior convictions and two additional points under USSG § 4A1.1(e)
because the instant offense occurred less than two years after his release from
confinement, for a total of eight criminal history points and a sentencing guidelines
range of 24 to 30 months.
V. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.