United States v. Keith Wagner

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0644n.06
No. 09-4461
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, Aug 31, 2011
LEONARD GREEN, Clerk
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
KEITH M. WAGNER, NORTHERN DISTRICT OF OHIO
Defendant-Appellant.
/
BEFORE: BOGGS and CLAY, Circuit Judges; TARNOW, District Judge.*
CLAY, Circuit Judge. Defendant Keith Michael Wagner appeals his sentence on
conviction of one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Defendant argues on
appeal that his 1989 conviction for aggravated assault and burglary, for which he was charged as an
adult when he was 17 years old, should not be counted as a predicate offense for the purposes of the
career offender enhancement, United States Sentencing Guidelines § 4B1.1. Defendant also argues
that the conviction should not have been scored in calculating his criminal history category.
For the reasons set forth below, we AFFIRM the sentence imposed by the district court.
*
The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 09-4461
BACKGROUND
On November 14, 2008, Defendant Keith Michael Wagner entered a Canton, Ohio branch
of Huntington Bank. When he reached the teller’s window, he placed a black bag on the counter and
demanded that the teller hand over “large bills” with “no dye packs.” (Def.’s Br. at 5.) The teller
complied by handing over approximately $3,826.00, and Defendant exited the bank.
Defendant was arrested by Florida authorities on November 26, 2008, and turned over to
federal custody on December 24, 2008, to face a one count indictment for bank robbery, in violation
of 18 U.S.C. § 2113(a). On April 7, 2009, the district court ordered the preparation of a pre-plea
Presentence Investigation Report (“PSR”). On July 1, 2009, Defendant pleaded guilty to bank
robbery, without the benefit of a written plea agreement.
As outlined in the PSR, Defendant’s base offense level was 20, pursuant to United States
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 2B3.1(a). He received a two level increase
because the offense involved the funds of a financial institution, pursuant to U.S.S.G. § 2B3.1(B)(1).
The career offender enhancement was applied to Defendant and his offense level was adjusted to 32,
pursuant to U.S.S.G. § 4B1.1(b)(C). After applying a three level reduction for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1, Defendant’s adjusted total offense level was 29.
Defendant was scored 13 criminal history points for prior offenses. He received two
additional points, pursuant to U.S.S.G. § 4A1.1(d), because he was on supervised release at the time
of the instant offense; he received an additional point because the offense occurred less than two
years following his last release from custody, pursuant to U.S.S.G. § 4A1.1(e). Defendant’s 16 total
2
No. 09-4461
criminal history points equated to a Criminal History Category VI.1 Thus, his recommended
advisory Guidelines sentencing range of 151 to 188 months of incarceration. The PSR noted that,
absent the career offender enhancement, Defendant’s advisory Guidelines range would have been
63 to 78 months. Defendant registered no objections to the calculations in the PSR.
Defendant filed two sentencing memoranda with the district court. In the first, Defendant
argued for a rejection of the career offender designation, and requested a downward variance based
on 18 U.S.C. § 3553(a) factors, including his abusive childhood and the impact that his juvenile
conviction for aggravated assault and burglary had on his Guidelines range. (R. 27: Def.’s Sent.
Mem.) In his supplemental memorandum, Defendant argued that he was mis-scored in the PSR for
several prior offenses, and that his two prior convictions for bank robbery should have been counted
together for the purposes of the career offender enhancement. (R. 28: Def.’s Supp. Sent. Mem. at
1-2.)
Defendant was sentenced on November 9, 2009. The district court addressed Defendant’s
argument that the court should vary from Defendant’s recommended sentence as a career offender
because he was a juvenile at the time of a predicate offense, stating:
I have examined the defendant’s arguments, and I have to say that while I often
believe that the application of the career offender status seems unduly harsh and
inappropriate, this to me appears to be the classic case where the policy
determination made by the sentencing commission seems to fit. The defendant,
while he may have committed his first qualifying offense back at the age of 17 . . .
it doesn’t change the fact that this defendant under any definition is a career offender.
He keeps committing crime after crime. Every time he is released from custody he
1
The career offender enhancement did not affect this calculation, as Defendant’s Criminal
History Category with the enhancement would have also been VI.
3
No. 09-4461
commits another crime. In this particular sentence he was only on supervised release
for a very short period of time.
And so while I have taken into account all of the defendant’s personal circumstances,
as well as the defendant’s argument regarding the harsh means of counting the
juvenile offense towards the defendant’s criminal status, the Court ultimately
concludes that it is appropriate to do so. And this defendant is appropriately
considered to be a career offender.
I note that the offense did not occur when he was 13, 14 or 15, but when he was
already 17. I note that the juvenile offense was for aggravated assault, which is . . .
itself a substantial offense. And I note that the defendant since then has committed
multiple bank robberies, including this one. As I said, he has not shown himself to
be amenable to any form of supervision by the state or the Federal Court.
And so for all those reasons the Court finds that it is appropriate to characterize the
defendant as a career offender. And it is appropriate to consider application of that
career offender status and the resulting higher guideline range for this defendant in
these circumstances.
(Sent. Tr. at 13-15.) After reviewing the § 3553(a) factors and addressing Defendant’s arguments
regarding his abusive childhood and difficult time finding a vocation as an adult, the district court
imposed a sentence of 160 months of incarceration. The district court additionally imposed upon
Defendant a 24 month sentence of incarceration for violation of his supervised release, to be served
consecutively to the sentence imposed in the instant case. Defendant now appeals.
ANALYSIS
I. Standard of Review
We review a sentence for both procedural and substantive reasonableness under an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “We review a district court’s
legal conclusions regarding the Sentencing Guidelines de novo,” and its findings of fact for clear
error. United States v. Moon, 513 F.3d 527, 539-40 (6th Cir. 2008).
4
No. 09-4461
As an exception, “[w]here a party has failed to object to a procedural defect, we review
claims of procedural unreasonableness for plain error.” United States v. Wallace, 597 F.3d 794, 802
(6th Cir. 2010). Plain error is “(1) error (2) that was obvious or clear, (3) that affected defendant’s
substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (internal
citations and quotation marks omitted).
A sentence may be procedurally unreasonable if the district court erred in “failing to consider
the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the Guidelines range.”
Gall v. United States, 552 U.S. at 51. It may be substantively unreasonable if the district court
“select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider
pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.”
United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (quoting United States v. Webb, 403
F.3d 373, 385 (6th Cir. 2005)).
Defendant argues that the district court erred by improperly scoring Defendant’s 1989
conviction for aggravated assault and burglary, committed when he was 17 years old, for the
purposes of calculating his criminal history and applying the career offender enhancement.
Defendant’s argument is as follows:
The Guidelines require that criminal history and career offender calculations must
look to the original sentence imposed. USSG § 4A1.2(a)(1), (b)(1) & comment. (nn.
1-2). Mr. Wagner’s probation-only sentence received at the age of seventeen must
be considered under section 4A[1].1(c). Id. § 4A1.2(b)(1), comment. (n.2). Because
that probation-only sentence was imposed more than five years before the conduct
that led to his federal sentence, it cannot be counted as a “prior sentence” for
5
No. 09-4461
purposes of calculating criminal history. Id. § 4A1.1(c), comment. (n.3); § 4A1.1(d),
comment. (n.7). Because the sentence cannot be counted under § 4A1.1, it is
unavailable as a predicate for career offender status. USSG § 4B1.2(c).
(Def.’s Br. at 6-7.)
As the government correctly notes, Defendant failed to raise this technical challenge before
the district court, in either his original or supplemental sentencing memorandum. Instead, Defendant
argued that his 1989 conviction should not be scored under the Guidelines for policy reasons.
Moreover, Defendant failed to raise this particular objection at his sentencing hearing when afforded
an opportunity by the district court to raise additional objections.
While we take no position regarding Defendant’s contention that the treatment of “a
probation-only conviction received at the age of seventeen as a predicate for career offender status”
is “an issue of first impression” in this Circuit, (Reply at 1), we disagree that this is the issue now
presented for us to decide. Instead, the question before us is whether Defendant’s sentence of
incarceration for a probation violation, stemming from such a “probation-only” conviction received
when Defendant was 17 years old, was properly scored under the Guidelines and applied for the
purposes of the career offender enhancement.
Consequently, we review Defendant’s challenges to his criminal history calculation for plain
error, and his substantive unreasonableness arguments for an abuse of discretion.
II. Procedural Reasonableness: Calculation of Defendant’s Guidelines Sentencing
Range
Defendant’s PSR listed, as an adult offense, his 1989 conviction for aggravated assault and
burglary. (PSR ¶ 27.) Included under this entry is Defendant’s October 11, 1989 sentence of seven
6
No. 09-4461
years of probation, and his July 20, 1990 probation revocation and sentence of seven years of
incarceration.2 The PSR indicates that Defendant was paroled on September 9, 1996. (Id.) The PSR
attributed three criminal history points to this offense, pursuant to U.S.S.G. § 4A1.1(a).
Though Defendant argues that the PSR inaccurately reflects the amount of time he actually
served on the probation violation, Defendant admits that he “did 17 months in Georgia, and I was
17 years old, I got out and stayed out almost five years straight, except for a year or so I did on [a]
technical violation.” (Sent. Tr. at 22.) By Defendant’s own admission, then, he served
approximately two years of incarceration on the probation violation.
Defendant now argues that because he was initially sentenced to probation in 1989, the
offense should only be scored one point, pursuant to U.S.S.G. § 4A1.1(c). (Def.’s Br. at 12.)
Defendant argues that because this one-point offense occurred more than five years prior to the
instant offense, and was “imposed for an offense committed prior to the defendant’s eighteenth
birthday,” it cannot be counted under U.S.S.G. § 4A1.1(c). (Id.)
The government takes no position regarding what Defendant’s criminal history calculation
would have been had his 1989 conviction not resulted in a probation violation and subsequent
incarceration. Instead, the government argues that, “Wagner’s sentence of seven years of
imprisonment after his probation was revoked counts as a ‘prior offense’ and was within the 15-year
2
Though Defendant refers to this as a “probation-only sentence,” this description is not
completely accurate. Defendant was convicted in the Ben Hill County Superior Court in Georgia.
Under Georgia law, a court “in its discretion shall impose sentence upon the defendant but may stay
and suspend the execution of the sentence or any portion thereof or may place him on probation
under the supervision and control of the probation supervisor for the duration of such probation.”
Ga. Code Ann. § 42-8-34(c) (West 1989). Therefore, Defendant’s sentence was for probation, but
subject to a term of incarceration.
7
No. 09-4461
limit as set forth in § 4A1.2(e)(1) of the Guidelines.” (Pl.’s Br. at 6.) Therefore, the government
argues, it was properly scored as part of Defendant’s criminal history and properly used as a
predicate offense under the career offender enhancement.
A. Scoring of Offenses for Criminal History Level
Defendant was scored three points for an offense that encompassed both his 1989 conviction
and 1990 probation violation.3 (PSR ¶ 27.) A defendant’s Criminal History Level is determined by
reference to Chapter Four of the Guidelines. Under § 4A1.1(a), the district court is required to
“[a]dd 3 points [to the criminal history score] for each prior sentence of imprisonment exceeding one
year and one month.” U.S.S.G. § 4A1.1(a). The commentary to this section instructs that “[t]he
definitions and instructions in § 4A1.2 govern the computation of criminal history points.” U.S.S.G.
§ 4A1.1 cmt.
Two § 4A1.2 definitions are relevant to the calculation of Defendant’s 1989 conviction and
probation violation. Section 4A1.2(d)(1), entitled “Offenses Committed Prior to Age Eighteen,”
instructs that “[i]f the defendant was convicted as an adult and received a sentence of imprisonment
exceeding one year and one month, add 3 points under § 4A1.1(a) for each such sentence.” Section
4A1.2(k)(1) addresses “Revocations of Probation,” and instructs the court to “add the original term
of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used
to compute the criminal history points for § 4A1.1(a), (b), or (c), as applicable.”
In this case, Defendant committed an offense prior to the age of eighteen. In 1989, he was
sentenced to seven years of probation. In 1990, upon the revocation of his probation, he was
3
As in the PSR, the 2008 editions of the Guidelines are used herein.
8
No. 09-4461
sentenced to seven years of incarceration for the offense. Adding the original term of imprisonment
(0 years) to the “term of imprisonment imposed upon revocation,” as per U.S.S.G. § 4A1.2(k)(1),
yields a total “sentence of imprisonment” of seven years, which exceeds one year and one month.
See United States v. Galvan, 453 F.3d 738, 740 (6th Cir. 2006) (“‘§ 4A1.2(k)(1) contemplates that,
in calculating a defendant’s total sentence of imprisonment for a particular offense, the district court
will aggregate any term of imprisonment imposed because of a probation violation with the
defendant’s original sentence of imprisonment, if any.’” (quoting United States v. Glover, 154 F.3d
1291, 1294 (11th Cir. 1998) (emphasis added)).
Because, by his own admission and the information reported in the PSR, Defendant was last
released from incarceration on the 1989 conviction on September 9, 1996 (see Def.’s Br. at 17), his
continued incarceration falls within the applicable fifteen year time period outlined in U.S.S.G. §
4A1.2(e)(1). See United States v. Parson, 288 F.3d 818, 822 (6th Cir. 2002) (clarifying treatment
of multiple probation revocations under the Guidelines).
Reading these provisions together, it is clear that a sentence of more than one year and one
month of incarceration, imposed for a probation revocation on an adult conviction for an offense
committed prior to a defendant reaching the age of eighteen, some portion of which was served
during the fifteen years preceding the instant offense, is scored three points under the Guidelines.
Therefore, the district court properly concluded that the Guidelines mandated the addition of three
points to Defendant’s criminal history score for his 1989 offense of aggravated assault and burglary.4
4
Defendant urges this Court to “appl[y] existing Guideline provisions in keeping with the
Roper-Graham restrictions on maximizing punishment for youthful conduct.” (Def.’s Br. at 10.)
This argument is more appropriately analyzed as a policy argument, and for that reason is discussed
9
No. 09-4461
Defendant is correct that his 1989 conviction and sentence of probation, absent a revocation,
would have fallen under the instructions provided in U.S.S.G. § 4A1.1(c), and that “[b]ecause that
probation-only sentence was imposed more than five years before the conduct that led to his federal
sentence, it cannot be counted as a ‘prior sentence’ for purposes of calculating criminal history.”
(Def.’s Br. at 6-7.) But because Defendant’s probation was revoked, and he “actually served a period
of imprisonment,” U.S.S.G. § 4A1.2 cmt. n.2, Defendant’s analysis in inapplicable and his appeal
therefore fails.
B. Predicate Offense for Career Offender Enhancement
Under the Guidelines,
A defendant is a career offender if (1) the defendant was at least eighteen years old
at the time the defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a).
Defendant does not contest that he was 36 years old at the time of the instant offense or that
the instant offense is a crime of violence. Therefore, the only issue before this Court is whether the
district court erred in finding that Defendant had two prior felony convictions for a crime of violence
or controlled substance offense. Under the relevant portion of U.S.S.G. § 4B1.2:
further in a later section of this opinion. Proper calculation of a defendant’s Guidelines range is a
threshold procedure that the district court must undertake before it can vary from those Guidelines.
See Gall, 552 U.S. at 49 (“[A] district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.”); Kimbrough v. United States, 552 U.S. 85, 108 (2007)
(stating that “district courts must treat the Guidelines as the ‘starting point and the initial
benchmark.’”).
10
No. 09-4461
The term “two prior felony convictions” means . . . the sentences for at least two of
the aforementioned felony convictions are counted separately under the provisions
of § 4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be
the date that the guilt of the defendant has been established, whether by guilty plea,
trial, or plea of nolo contendere.
U.S.S.G. § 4B1.2(c)(2). In addition to his 1989 offense of aggravated assault and burglary,
Defendant had two convictions for armed bank robbery and an additional conviction for bank
robbery by force. (PSR ¶¶ 29-30.)
Defendant argues that because his 1989 offense should not have been scored as part of his
criminal history, it also cannot be used as a predicate offense under U.S.S.G. § 4B1.1 to determine
career offender status. Because we have determined that the conviction was properly scored as part
of his criminal history calculations, Defendant’s argument here must also fail.
Alternatively, Defendant contends that his “probation violation and [June 26, 1990] theft and
escape charges were consolidated, with the concurrent sentencing imposed on the same day.
Therefore, the offenses could not be counted separately against Mr. Wagner under the Guidelines.
USSG § 4A1.2(a)(2)(B).” (Def.’s Br. at 15.) This argument cannot prevail. The Guidelines are
explicit that “[i]f . . . at the time of [probation] revocation another sentence was imposed for a new
criminal conviction, that conviction would be computed separately from the sentence imposed for
the revocation.” U.S.S.G. § 4A1.2 n.11. Such was the situation in this case. Therefore, the district
court correctly applied the career offender enhancement to Defendant’s sentence.
C. Discretion to Vary Based on Public Policy
Defendant argues that, as a matter of public policy, “Guideline application should reflect the
Graham-Roper [Graham v. Florida, ___ U.S. ___, 130 S. Ct. 2011 (2010) and Roper v. Simmons,
11
No. 09-4461
543 U.S. 551 (2005)] reliance on empirical evidence of juveniles’ reduced neurological and
developmental capacity and resulting diminished culpability by barring maximal punishment for
youthful conduct.” (Def.’s Br. at 6.) The district court’s refusal to vary Defendant’s sentence based
on these policy considerations constitutes, Defendant argues, an abuse of discretion.
As a factual matter, Defendant is not being punished under the career offender enhancement
for his juvenile crimes, which might, perhaps, implicate the reasoning underlying the Supreme
Court’s decisions in Graham and Roper. Instead, Defendant is being punished both for the instant
offense—bank robbery—and for what the legislature clearly perceives as his decision to make a
career out of offending. The Supreme Court’s decisions in Roper and Graham are premised, at least
in part, on the idea that juvenile offenders deserve the possibility of a second chance; Defendant’s
career offender enhancement is premised on the fact that Defendant has used his second, third, and
forth chances to commit further serious offenses. Cf. Graham, 130 S. Ct. at 2030 (“A State is not
required to guarantee eventual freedom to a juvenile offender . . . . What the State must do, however,
is give . . . [juvenile offenders] some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.”).
Although the district court may vary from the Guidelines range based on policy
disagreements, see United States v. Herrera-Zuniga, 571 F.3d 568, 585 (6th Cir. 2009), the district
court is not required to do so when it does not share the Defendant’s particular policy concerns. See
United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011) (“[T]he fact that a district court may
disagree with a Guideline for policy reasons and may reject the Guidelines range because of that
disagreement does not mean that the court must disagree with that Guideline or that it must reject
12
No. 09-4461
the Guidelines range if it disagrees.”). We have held that “when a district court observes that the
Guidelines are advisory and provides no indication that policy disagreements are not a proper basis
to vary, then a sentence within the Guidelines range remains presumptively reasonable on appeal.”
United States v. Simmons, 587 F.3d 348, 364 (6th Cir. 2009).
During Defendant’s sentencing, the district court acknowledged its “discretion to disagree
with the sentencing commission on this proposition if the Court chooses to do so.” (Sent. Tr. at 13.)
Because there is no question that the district court recognized its discretion to consider the
circumstances surrounding Defendant’s 1989 offense, and to vary from the Guidelines based on
policy disagreement, the district court did not abuse its discretion by declining to grant Defendant’s
motion for a downward variance on that basis.
III. Substantive Reasonableness: Application of Career Offender Enhancement
Defendant argues that his sentence is substantively unreasonable because “[e]mpirical
evidence demonstrates that the risk of recidivism decreases, and the likelihood of desistence
increases, as older defendants such as Mr. Wagner age,” and as such, “[t]he career offender enhancer
is unjustified on its face, and unreasonable as applied in this case.” (Def.’s Br. at 17-18.)
This Court has previously addressed similar Roper arguments regarding the career offender
enhancement, and has stated:
Relying on Roper v. Simmons, [the defendant] argues that, for the same reasons of
diminished culpability that we no longer execute those who are under 18 when they
commit their crimes, courts should give consideration to the immaturity of a
defendant at the time of the predicate offenses when rendering a sentence enhanced
or based on previous criminal convictions. This type of generalized argument cannot
succeed given the presumption that a within-Guidelines sentence is reasonable. If
[the defendant] were correct that Roper generally requires sentencing courts to
discount convictions for offenses committed when under the age of 18, then a
13
No. 09-4461
sentence reached without such discounting presumptively would be unreasonable—
even though it follows the Guidelines. . . . [G]iven the presumption of reasonableness
[afforded to within-Guidelines sentences] it is plain that [the defendant] cannot
prevail on appeal by propounding a generalized challenge to the Guidelines on policy
grounds.
United States v. Prado, 228 F. App’x. 542, 548 (6th Cir. 2007) (internal citation omitted).
During Defendant’s sentencing hearing the district court expounded, at length, its
considerations in rejecting Defendant’s public policy argument. These considerations included the
fact that “[Defendant] keeps committing crime after crime,” that Defendant “was only on supervised
release for a very short period of time” before committing the instant offense, that “the juvenile
offense was for aggravated assault, which is for itself a substantial offense,” that “[D]efendant since
then has committed multiple bank robberies,” and that Defendant “has not shown himself to be
amenable to any form of supervision by the state or the Federal Court.” (Sent. Tr. at 13-15.)
Consequently, the district court found that Defendant’s generalized public policy arguments
regarding the treatment of juvenile offenses did not outweigh Defendant’s individualized factors,
which the district court determined made the imposition of the career offender enhancement
appropriate.
That Defendant styles his claim as a facial challenge to the career offender enhancement
whenever a juvenile crime is used as a predicate offense does not change the district court’s calculus.
As we recently made clear, substantive reasonableness does not require a “district court . . . on its
own initiative, [to] examine the underlying bases for a Guideline before imposing a sentence.”
Brooks, 628 F.3d at 800. Therefore, the district court’s failure to weigh the empirical evidence, or
14
No. 09-4461
lack thereof, utilized in crafting the career offender enhancement does not constitute substantive
unreasonableness.
For these reasons, and because Defendant offers no other arguments regarding the substantive
unreasonableness of his sentence, the district court did not abuse its discretion in sentencing
Defendant to a within-Guidelines sentence.
CONCLUSION
The 160 month sentence imposed by the district court was both substantively and
procedurally reasonable. The district court properly calculated Defendant’s criminal history score
and advisory sentencing range under the Guidelines, and the district court acknowledged its authority
to vary from the Guidelines based on policy concerns and addressed Defendant’s argument for a
downward variance based on the fact the one of Defendant’s predicate offenses was committed when
he was a juvenile. We therefore hereby AFFIRM the sentence imposed by the district court.
15