United States v. Oliver , 217 F. App'x 453 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0126n.06
Filed: February 15, 2007
No. 06-1190
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
DAVID LEE OLIVER, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
)
Before: SUHRHEINRICH, GIBBONS, and COOK, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant David Lee Oliver
(“Oliver”) challenges the sentence imposed by the district court on procedural reasonableness
grounds. Because the record demonstrates the district court’s consideration of the relevant
sentencing factors outlined in 18 U.S.C. § 3553(a) and because Oliver fails to point to any mitigating
evidence that the district court should have considered in imposing sentence, his challenge fails.
Consequently, we affirm Oliver’s sentence.
I.
A jury convicted Oliver of conspiracy to possess with intent to distribute 500 grams or more
of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 846. On August
4, 2003, Oliver was sentenced to 180 months imprisonment under the then mandatory guidelines
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regime. This court subsequently vacated his sentence in light of United States v. Booker, 543 U.S.
220 (2005). United States v. Oliver, 129 F. App’x 210 (6th Cir. 2005).
On December 19, 2005, the district court held a new sentencing hearing. The court relied
upon the guidelines calculations used during the pre-Booker sentencing. Under those calculations,
not challenged on appeal, the appropriate sentencing range recommended by the guidelines called
for between 168 and 210 months incarceration. The district court ultimately imposed a sentence of
180 months imprisonment.
Oliver argued before the district court that his efforts at rehabilitation and his remorse for
having committed the charged crime warranted a more lenient sentence than the one imposed
originally and challenged here on appeal. While the district court acknowledged the positive steps
that Oliver had taken since having been convicted, it ultimately found, “[i]t does not stand as a
reason for me, however, to think that there’s a substantial reason for varying from the sentence that
was originally imposed.” The court then explained its sentence as follows:
[A]ccordingly, taking into account the recommended guideline range as calculated
by the original sentencing judge, 168 to 210 months, a reduction from the
recommended calculation by the Probation Department, a reduction for
overstatement of the defendant’s criminal history, it is the determination of the court,
considering the recommended guideline range as well as all of the factors contained
in Title 18, Section 3553(a), that the defendant, David Lee Oliver, is hereby
committed to the custody of the United States Bureau of Prisons to serve a term of
180 months.
II.
Oliver challenges his sentence on the ground that it is unreasonable. Post-Booker, the
discretion of a sentencing court has been enhanced, and a sentence will be upheld on appeal if that
sentence is “reasonable.” United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005). This
reasonableness inquiry has both a procedural and a substantive component, requiring review of both
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the procedures used and factors considered in reaching the sentence and the punishment itself. See
United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). On appeal, Oliver raises only procedural
reasonableness, however.
Although district courts are no longer bound by the sentencing ranges contained in the
guidelines, a sentencing court must consider the applicable guidelines range as one of a number of
factors enumerated in 18 U.S.C. § 3553(a). Jackson, 408 F.3d at 304. The goal of the procedural
reasonableness requirement is to ensure that a sentencing court explains its reasoning to a sufficient
degree to allow for reasonable appellate review. Id. at 305. The court need not explicitly consider
each of the § 3553(a) factors; a sentence is procedurally reasonable if the record demonstrates that
the sentencing court addressed the relevant factors in reaching its conclusion. See United States v.
McBride, 434 F.3d 470, 475-76 & n.3 (6th Cir. 2006) (citing Webb, 409 F.3d at 383-85). Moreover,
satisfaction of the procedural reasonableness requirement does not depend on a district court’s
providing a rote listing or some other ritualistic incantation of the § 3553(a) factors. See United
States v. Collington, 461 F.3d 805, 809 (6th Cir. 2006); see also United States v. Williams, 436 F.3d
706, 708-09 (6th Cir. 2006).
Oliver does not challenge the district court’s guidelines calculations but instead challenges
what he characterizes as the district court’s failure to consider adequately the factors enumerated in
18 U.S.C. § 3553(a). To the extent that Oliver endeavors to impose a rule requiring that the district
court, in passing sentence, explicitly reference all of the § 3553(a) factors, this court has rejected any
such formulaic approach to procedural reasonableness. See, e.g., McBride, 434 F.3d at 476 n.3.
Oliver further argues that the district court simply relied on the guidelines recommendation and
ignored the other § 3553(a) factors. Contrary to Oliver’s assertion, the record before us amply
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demonstrates the district court’s consideration of both the applicable guidelines range and the other
relevant factors. Oliver does not direct us to any factor that the district court should have considered
but did not.
Oliver also argues that the district court did not consider the mitigating evidence that he
offered regarding his efforts at rehabilitation following his incarceration in 2003 and his remorse for
having violated the law. Before the district court, both at the resentencing hearing and in a
memorandum furnished to the court, Oliver pointed to the positive steps he had taken while in
prison, including having held a job, conducted himself properly, and completed drug treatment. The
district court not only considered this evidence but also commended Oliver for his progress. The
district court ultimately determined that this progress, however positive, did not warrant further
lenity in sentencing and imposed a sentence in accordance with the recommended guidelines range
and identical to that imposed originally.
The district court did not, in explicit terms, reference each of the § 3553(a) factors, but our
precedent does not impose any particular script upon a sentencing court. The record demonstrates
the district court’s consideration of the relevant sentencing factors, and Oliver has failed to point to
any evidence that the district court should have considered but did not. The district court’s rationale
is evident from the record, and there is no suggestion that the district court failed to weigh all of the
relevant factors in passing sentence. As a consequence, the sentence was not procedurally
unreasonable.
III.
For the foregoing reasons, we affirm Oliver’s sentence.
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