United States v. Milan

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0173n.06
Filed: March 2, 2007
No. 05-6209
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Western
SHARN RAYNARD MILAN, ) District of Tennessee
)
Defendant-Appellant, )
Before: MARTIN and GUY, Circuit Judges; CARR, District Judge.*
CARR, District Judge. Defendant, Sharn Raynard Milan, appeals his sentence following a
conviction of conspiracy to possess with intent to distribute and distribution of fifty grams or more
of cocaine base. His first sentence was vacated by this Court pursuant to United States v. Booker,
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). At resentencing, the District Court imposed
a term of 144 months.
On appeal, defendant raises three arguments: 1) the District Court erred in enhancing
defendant's sentence for possession of a firearm under U.S.S.G. § 2D1.1(b)(1); 2) the District Court
erred in enhancing the sentence based on defendant's characterization as a leader or organizer under
U.S.S.G. § 3B1.1(a); and 3) the sentence was not "reasonable" in light of United States v. Booker
*
The Honorable James G. Carr, Chief United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 05-6209
United States of America v. Sharn Raynard Milan
because the District Court failed to consider the statutory sentencing factors of 18 U.S.C. § 3553(a)
other than the Sentencing Guidelines themselves.
For the reasons discussed below, we AFFIRM the District Court’s judgment.
I. Background
A federal grand jury returned an indictment on July 16, 2001. A superseding indictment was
filed on October 15, 2001, charging defendant with conspiracy to possess with intent to distribute
and distribution of fifty grams or more of a mixture and substance containing cocaine base, in
violation of 21 U.S.C. § 846 (conspiracy) and 21 U.S.C. § 841(a)(1) (possession with intent to
distribute and distribution).
On October 3, 2001, pursuant to a plea agreement, the defendant entered a guilty plea. On
September 24, 2002, the court sentenced the defendant to a term of 264 months. After entry of
judgment, the defendant filed a timely notice of appeal. On June 24, 2004, pursuant to the
government's motion for a reduction in the defendant's sentence for substantial assistance, see Fed.
R. Crim. P. 35(b), the District Court reduced the defendant's sentence to 188 months. On appeal, this
Court vacated the District Court's judgment in accordance with United States v. Booker, 543 U.S.
220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and remanded for resentencing. On July 8, 2005, the
District Court sentenced defendant to a term of 144 months.
At the new sentencing hearing, after granting the government's motions under U.S.S.G.
§ 5K1.1 and Rule 35(b) for a reduction in the defendant's sentence, the District Court concluded as
follows: An “[offense level of] 31 and a criminal history of II gives me a sentencing range of 121
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to 151 months. And it seems to me that that's a reasonable range for me to sentence you in." (J.A.
at 111.)
The court noted that the defendant "made some good decisions in recent years, and that was
to admit [his] guilt and try to help [him]self by providing assistance against others. And in doing
so, [he] dramatically reduced the sentence that [he] would otherwise get." (J.A. at 112.) The District
Court described the drug quantity attributed to the defendant as "conservative," referring to the large
discrepancy between the amount of drugs attributed to the defendant and the total amount involved
in the conspiracy. (J.A. at 112.)
The District Court noted that the defendant was at the "bottom" of the "criminal history
[category] of II.” (J.A. at 112.) The court ordered the defendant to participate in a "program of
testing and treatment for drug abuse." (J.A. at 113.) The District Court acknowledged that the
Sentencing Guidelines are advisory. Specifically, the District Judge indicated that: 1) he was
considering "an advisory range of 121 to 151 months" (J.A. at 112); and 2) he was "relieved that [he]
did not have to sentence [the defendant] to 360 months as formerly required under the [G]uidelines
before [the defendant's cooperation].” (J.A. at 114.)
The District Court found that, based on the proffer of a co-conspirator, the defendant
possessed a weapon during the conspiracy and, accordingly, the District Court applied a two-level
enhancement under U.S.S.G. § 2D1.1(b)(1). Additionally, the District Court applied a four-level
enhancement under U.S.S.G. § 3B1.1(a) for the defendant's role as a leader in the conspiracy.
II. Analysis
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On appeal, defendant raises three claims: 1) the District Court erred in enhancing defendant's
sentence for possession of a firearm under U.S.S.G. § 2D1.1(b)(1); 2) the District Court erred in
enhancing the sentence based on defendant's characterization as a leader or organizer under U.S.S.G.
§ 3B1.1(a); and 3) the sentence was not "reasonable" in light of United States v. Booker because the
District Court failed to consider the statutory sentencing factors of 18 U.S.C. § 3553(a) other than
the Sentencing Guidelines themselves. None of the arguments raised by the defendant warrants
reversal.
A. Sentencing Enhancement Under U.S.S.G. § 2D1.1(b)(1)
The District Court's conclusion under § 2D1.1(b)(1) that the defendant possessed a firearm
is a factual finding that this Court reviews for clear error. See, e.g., United States v. Ables, 167 F.3d
1021, 1035 (6th Cir. 1999). A finding is clearly erroneous when, although there is evidence to
support it, the reviewing court is left with the definite and firm conviction that a mistake has been
committed. United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746(1948). We review the District Court’s interpretation of the Sentencing Guidelines de novo. United
States v. Gardner, 417 F.3d 541, 543 (6th Cir. 2005).
The Sentencing Guidelines instruct the court to increase a defendant's base offense level by
two levels "[i]f a dangerous weapon (including a firearm) was possessed." § 2D1.1(b)(1). The
government must show by a preponderance of the evidence, United States v. Johnson, 344 F.3d 562,
565 (6th Cir. 2003), that the dangerous weapon was possessed during "relevant conduct,”1 United
1
As we explained in Faison, effective November 1, 1991, the Guidelines no longer
require that the defendant possess the weapon during the commission of the offense. The
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United States of America v. Sharn Raynard Milan
States v. Faison, 339 F.3d 518, 520 (6th Cir. 2003). Relevant conduct under the Sentencing
Guidelines includes "all acts and omissions . . . that were part of the same course of conduct or
common scheme or plan as the offense of conviction.” Id. at 520 (citing U.S.S.G. § 1B1.3(a)(2)).
The District Court found that the defendant possessed a weapon based on a statement, as
reported in the presentence report, by James Milan, one of the defendant's co-conspirators, in the
presentence report:
Defendant Milan reported that he had previously observed a large-frame revolver at
the home of Sharn Raynard Milan and Stephen Dorrell Milan, and that he had
observed Sharn Raynard Milan shoot this weapon in the Spring of 2001.
(J.A. at 129.)
The defendant argues that James Milan’s statement cannot support the District Court’s
application of § 2D1.1(b)(1) because this account fails to establish any connection between the firing
of the weapon and the offenses for which the defendant was convicted.
This argument fails. Application Note 3 of U.S.S.G. § 2D1.1 provides that the enhancement
for possession of a weapon should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense. The defendant did not dispute the claim
that he possessed a firearm at his home in 2001–during the period of the conspiracy. A District
Court may accept as true all factual allegations in a presentence report to which the defendant does
not object. United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001) (citing United States v. Ward,
government must now prove only that the dangerous weapon was possessed during “relevant
conduct.” District Courts must no longer limit their review to the evidence related to the
proximity between the firearm and the drugs at the specific time of the offense. Faison, 339 F.3d
at 520, 520 n.1 (citations omitted).
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United States of America v. Sharn Raynard Milan
190 F.3d 483, 492 (6th Cir.1999)). Because the defendant does not contest that he possessed a
firearm during the period of the conspiracy, the District Court may infer that this possession was
connected to the offense. See United States v. Bolka, 355 F.3d 909, 912 (6th Cir. 2004).
The defendant may rebut this presumption by demonstrating that it is clearly improbable that
the firearm was connected to the offense. Bolka, 355 F.3d at 912 (citing United States v. Moses, 289
F.3d 847, 850 (6th Cir. 2002)). The court may consider several factors in making this determination:
the proximity of the firearm to the drugs, the type of firearm involved, whether the firearm was
loaded, and any alternative purpose offered to explain the presence of the firearm. Moses, 289 F.3d
at 850 (citation omitted). Milan offers no alternative explanation for the presence of the weapon,
and he does not dispute that drugs were stored and drug transactions took place in his home–where
he, according to James Milan’s statement, possessed the revolver. Because the defendant cannot
rebut the presumption that his possession of the revolver was connected to the drug conspiracy,
enhancement under § 2D1.1(b)(1) is appropriate. See United States v. Miggins, 302 F.3d 384,
390-91 (6th Cir. 2002) (citing United States v. McGhee, 882 F.2d 1095, 1097-98 (6th Cir. 1989)).
B. Sentencing Enhancement Under U.S.S.G. § 3B1.1(a)
Milan argues that the District Court's factual findings under § 3B1.1(a) are not specific
enough to allow review by this Court. As we have explained previously, it is unclear what standard
of review this Court should apply in evaluating the District Court's application of § 3B1.1(a). See,
e.g., United States v. McDaniel, 398 F.3d 540, 551 (6th Cir. 2005); United States v. Henley, 360 F.3d
509, 516-18 (6th Cir. 2004). Before the Supreme Court's decision in Buford v. United States, 532
U.S. 59, 121 S. Ct. 1276, 149 L. Ed. 2d 197 (2001), it was clear that we reviewed a District Court's
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factual findings for clear error and legal conclusions de novo. Henley, 360 F.3d at 516 (citation
omitted). The Supreme Court in Buford, however, held that an appellate court should review
deferentially, rather than de novo, a District Court's application of U.S.S.G. § 4B1.2 because of the
fact-bound nature of the legal decision. 532 U.S. at 66. We reserve judgment as to whether the
District Court's application of § 3B1.1(a) to the facts of this case should be reviewed deferentially
or de novo, because we would affirm using either standard of review.
The Sentencing Guidelines instruct the court to increase a defendant's base offense level by
two levels "[i]f the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive." § 3B1.1(a). To qualify for an adjustment, the
defendant must have been the organizer or leader of one or more other participants. § 3B1.1,
Application Note 2.
In applying the § 3B1.1(a) enhancement, the District Court stated as follows:
It's apparent to me, Mr. Milan, that you were actively involved as a ringleader in this
very large drug conspiracy with eight defendants, seven besides you, and that you
clearly were a leader and organizer in that enterprise. So that four-level enhancement
is also appropriate. All those other defendants pled guilty, you pled guilty, and it
seems to me that's a sufficient basis, given your role in the offense, to add that
four-level enhancement.
(J.A. at 110-11.)
While it would have been preferable for the District Court to have identified a specific
individual over whom Milan exercised control, the District Court is not required to state on the
record the specific facts it relied on in applying § 3B1.1(a). See United States v. Caseslorente, 220
F.3d 727, 736 (6th Cir. 2000).
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The government cites numerous items in the presentence report, none contested by the
defendant, that support the court's application of § 3B1.1(a). (See Appellee's brief at 11-14). These
include allegations that the defendant was the “‘kingpin’” of the drug conspiracy and that specific
co-conspirators purchased crack cocaine from or delivered crack cocaine for the defendant. Id. A
District Court may accept as true all factual allegations in the presentence report to which the
defendant does not object. United States v. Levy, 250 F.3d 1015, 1018 (6th Cir. 2001) (citing United
States v. Ward, 190 F.3d 483, 492 (6th Cir.1999)). Based on the facts in the report, the District
Court properly concluded that the defendant was an organizer or leader under § 3B1.1(a).
C. The Reasonableness of Milan's Sentence Under Booker
We review Milan's sentence for substantive and procedural reasonableness. See United
States v. Blackwell, 459 F.3d 739, 773 (6th Cir. 2006) (citing United States v. Webb, 403 F.3d 373,
383 (6th Cir. 2005) (holding that in determining whether a sentence is reasonable, the reviewing
court must consider the length of the sentence, the factors the District Court evaluated, and the
procedures the District Court employed at sentencing).
A sentence may be substantively unreasonable if the District Court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent 18 U.S.C.
§ 3553(a) factors, or gives an unreasonable amount of weight to any pertinent factor. United States
v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (citing Webb, 403 F.3d at 385). A sentence may
be procedurally unreasonable if the District Judge imposes a sentence that he or she deems
appropriate without considering the applicable Guideline range or the § 3553(a) factors. Collington,
461 F.3d at 808 (citing Webb, 403 F.3d at 383).
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Because defendant failed to object to his sentence at the sentencing hearing, we review his
claim to vacate his sentence for plain error. See United States v. Caswell, 456 F.3d 652, 655 (6th
Cir. 2006) (citing United States v. Oliver, 397 F.3d 369, 377-78 (6th Cir. 2005)). On plain error
review, we may only correct such a mistake if there is: 1) an error; 2) that is plain; 3) that affects
substantial rights; and 4) that seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. (citing Johnson v. United States, 520 U.S. 461, 466, 117 S. Ct. 1544, 137 L. Ed.
2d 718 (1997)).
To determine if an error was committed, this Court must first determine whether the sentence
is unreasonable. Webb, 403 F.3d at 383 (citation omitted). Only after this analysis is complete can
this Court determine whether any error that occurred was plain or whether it affected the substantial
rights of the parties. Caswell, 456 F.3d at 656.
1. Substantive Reasonableness
The defendant has failed to rebut the presumption that his sentence, because it is properly
calculated under the Guidelines, is substantively reasonable. See United States v. Williams, 436 F.3d
706, 708 (6th Cir. 2006). The defendant has not identified any relevant factor the District Court
should have considered that would have benefitted the defendant at sentencing. See United States
v. Johnson, 467 F.3d 559, 571 (6th Cir. 2006) (citation omitted). Nor has the defendant pointed to
any factor that the District Court improperly considered. See Collington, 461 F.3d at 808.
Therefore, Milan’s sentence is substantively reasonable and not arbitrary.
2. Procedural Reasonableness
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The defendant argues the District Court relied exclusively on the Sentencing Guideline range
in sentencing the defendant. Because the District Court did not state that it considered § 3553(a),
this Court must analyze the record to infer whether the District Court engaged at all in the required
meaningful examination of the § 3553(a) factors.2 See, e.g., United States v. Johnson, 2006 WL
3069075 (6th Cir. 2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). The more
the District Court obscures its reasoning or requires us to ponder and speculate, the more likely we
are to find procedural unreasonableness in the court’s decision. United States v. McBride, 434 F.3d
470, 476 n.3 (6th Cir. 2006).
On review of the record, we conclude that Milan's sentence is procedurally reasonable.
While the District Court did not explicitly state that it engaged generally in the necessary
consideration of relevant § 3553(a) factors, the record reflects that the District Court did, in fact,
consider these factors in sentencing the defendant. A District Court must consider the § 3553(a)
factors at sentencing and articulate its reasoning to allow for reasonable appellate review, but it need
not recite these factors. See, e.g., United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005) (citations
omitted).
The District Court considered "the need for the sentence imposed . . . to provide the
defendant with needed . . . medical care,"§ 3553(a)(2)(D), by ordering the defendant to participate
2
The District Court must consider, in addition to the Sentencing Guidelines, the nature
and circumstances of the offense; the history and characteristics of the defendant; the need for the
sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to
provide just punishment, to provide adequate deterrence, to protect the public, and to provide the
defendant with educational or vocational training, medical care, or other correctional treatment.
See § 3553(a)(1)-(2).
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in a drug treatment and testing program. Additionally, the court evaluated "the seriousness of the
offense" under § 3553(a)(2)(A) by discussing the discrepancy between the relatively small amount
of drugs attributed to the defendant under the Sentencing Guidelines and the large amount involved
in the conspiracy, in which the defendant played an organizing role. Moreover, the court considered
the need "to afford adequate deterrence to criminal conduct" under § 3553(a)(2)(B) by noting that
the defendant will likely have "learn[ed his] lesson" by the time he completes his sentence. While
further elucidation by the District Court of its reasoning would have been helpful to the defendant
and to this Court, this shortcoming does not render Milan’s sentence procedurally unreasonable.
We conclude that the defendant's sentence is substantively and procedurally reasonable. The
defendant cannot demonstrate any error, plain or otherwise.
III. Conclusion
For the foregoing reasons, we AFFIRM the District Court’s judgment.
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