United States v. Hopson , 189 F. App'x 426 ( 2006 )

File Name: 06a0485n.06
Filed: July 11, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 05-3253
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
DION S. HOPSON, COURT FOR THE SOUTHERN
DISTRICT OF OHIO
Defendant-Appellant.
/
Before: MARTIN, NORRIS, and McKEAGUE, Circuit Judges
BOYCE F. MARTIN, JR., Circuit Judge. Dion Scott Hopson pled guilty to making a false
statement to a federally licensed firearm dealer, 18 U.S.C. § 924(a)(1)(A), and was found guilty of
one count of violating the Hobbs Act, 18 U.S.C. § 1951, and one count of carrying and brandishing
a firearm during a crime of violence, 18 U.S.C. § 924(c). Upon oral announcement of the sentence
and while the next case was being called, Hopson allegedly threatened the prosecutor. This led to
the district court conducting an additional hearing whereupon it added fourteen months to Hopson’s
previous sentence. Hopson now appeals that revised sentence. For the following reasons, we affirm
the decision of the district court.
I.
No. 05-3253
United States v. Hopson
Page 2
After pleading guilty to the charge of making a false statement to a federally licensed firearm
dealer, Hopson stood trial on two counts of violating the Hobbs Act and two counts of carrying and
brandishing a firearm during a crime of violence. The jury returned a verdict of guilty on one count
of each offense on May 15, 2002. Following his sentencing on November 15, 2002, Hopson
appealed to this Court. Upon a finding of error in the original sentence,1 the case was remanded
back to the district court for resentencing.
Hopson’s resentencing hearing occurred on November 9, 2004. The Hobbs Act violation
(“Count 4”) and the false statement (“Count 1”) merged, resulting in a sentencing guideline range
of sixty-three to seventy-eight months.2 The conviction of carrying and brandishing of a firearm
during a crime of violence (“Count 5”) carries with it an eighty-four month mandatory minimum.
18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced Hopson to the mandatory eighty-four
months in addition to seventy months for the other two charges, for a total of 154 months.
Upon conclusion of the sentencing hearing, the record shows that as the district court was
preparing to call its next case, Assistant U.S. Attorney David Bosley stopped the proceedings and
informed the court that Hopson “told me he is going to get me when he gets out.” At this point, the
district court ordered an additional sentencing hearing to take place in order to determine what
Hopson said and if it would affect his sentence.
1
This Court held that the district court erred in its application of the Sentencing Guidelines
as to Hopson’s leadership role, U.S.S.G. § 3B1.1. United States v. Hopson, 134 Fed. Appx. 781 (6th
Cir. 2004) (unpublished decision).
2
This hearing was pre-United States v. Booker, 543 U.S. 220 (decided on January 12, 2005).
No. 05-3253
United States v. Hopson
Page 3
On February 17, 2005, the district court conducted the second resentencing hearing. During
the hearing, the court heard from witnesses in the courtroom from the previous hearing. Based on
that testimony, the district court concluded that Hopson had intimidated Bosley and, as a result of
this uncharged conduct, a sentence enhancement was justified.3 The court reiterated the sentencing
guideline range for the merged Counts 1 and 4 and the mandatory minimum for the Count 5
brandishing and carrying a firearm charge, noting that now, post-Booker, the sentencing guidelines
are only advisory and not mandatory. The district court noted that it would be inappropriate to apply
the defendant’s post-sentence actions to the Guidelines sentencing enhancement under section 3C1.1
for obstruction of justice because that obstruction must take place “during the course of the
investigation, prosecution, or sentencing of the instant offense.” Therefore, because the alleged
threat took place after the sentence was given (albeit only by seconds), the guideline enhancement
could not be applied. The district court then proceeded to consider the 18 U.S.C. § 3553(a) factors
for sentencing, in which it found factor (2)(C) to be appropriate: “to protect the public from further
crimes of the defendant.” To that purpose, the district court wished to enhance Hopson’s previous
sentence.
If I were to apply the guideline for obstruction of justice, which I have
already found that I could not, the defendant would receive an additional 15 to 18
months – excuse me, 14 to 18 months because his offense level would rise to a 24.
And again that guideline does not apply, but that gives some indication of what the
sentencing commission believes would be an appropriate enhancement for an
obstruction of justice in a case of this sort. Again, I note if this conduct had occurred
3
It has been established that judicial fact-finding by a preponderance of the evidence is an
acceptable means of sentencing based on uncharged conduct. Booker, 543 U.S. at 259. See also
United States v. Watts, 519 U.S. 148 (1997) (“application of the preponderance standard at
sentencing generally satisfies due process”).
No. 05-3253
United States v. Hopson
Page 4
simply an hour earlier, the guideline would have been applied. So the fortuity of this
happening on the heels of the sentencing seems to me something that should not
frustrate a fair and appropriate sentence.
Based on this analysis, the district court increased the previous sentence of seventy months for
Counts 1 and 4 to eighty-four months, in addition to the eighty-four months already imposed by
statutory mandate for Count 5. The district court noted that this was an upward departure from the
advisory sentencing guidelines range, but concluded that the section 3553(a) factors warranted such
a deviation.4 Hopson now appeals this final sentencing decision by the district court.
II.
Hopson appeals his sentence as modified by the district court based on his actions of
November 9, 2004. This challenge presents two separate issues: 1) whether the district court had
the power to impose the new sentence and 2) if so, whether that new sentence was reasonable.
A. District Court’s Power to Impose the New Sentence
This Court reviews the question of law of whether the district court had the authority to
impose a new sentence on Hopson de novo. See United States v. Van Hoosier, 442 F.3d 939, 943
(6th Cir. 2006). The district court had two major limitations on its authority in resentencing Hopson.
First, the district court was limited by the mandate from this Court’s remand of the case back for
resentencing. Second, the district court was potentially limited by the finality of the sentencing
before Hopson’s alleged outburst.
4
The district court stated the sentence was a fourteen-month upward departure from the
Guidelines. In actuality, the sentence was only a six month upward departure from the appropriate
guideline range of sixty-three to seventy-eight months.
No. 05-3253
United States v. Hopson
Page 5
1. The Mandate Rule
[T]he mandate rule requires lower courts to adhere to the commands of a
superior court. Accordingly, [u]pon remand of a case for further proceedings after
a decision by the appellate court, the trial court must proceed in accordance with the
mandate and the law of the case as established on appeal. The trial court must
implement both the letter and the spirit of the mandate, taking into account the
appellate court’s opinion and the circumstances it embraces.
United States v. Cook, 238 F.3d 786, 789 (6th Cir. 2001) (emphasis added) (quoting United States
v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994)). In Cook, this Court held that its mandate to the
district court to determine Cook’s acceptance of responsibility at the time of initial sentencing was
properly construed as not requiring the district court to consider any evidence of Cook’s post-
sentencing acceptance of responsibility. Id. at 790. The Cook court did not hold, however, that its
limited mandate necessarily precluded consideration of Cook’s post-sentencing actions in general.
This Court observed that even if Cook’s post-sentencing actions had been considered, they would
not have warranted the relief urged by Cook. Id.
This Court instructed the district court to resentence Hopson without an enhancement for a
leadership position. Hopson, 134 Fed. Appx. 781. The record shows that the mandate was followed
in both of the district court’s resentencings as the leadership enhancement was not applied to
Hopson’s sentence either time. Based on the holding in Cook, the district court could consider
Hopson’s outburst as not inconsistent with the appellate court’s mandate and as part of the
“circumstances it embraces.” See Cook, 238 F.3d at 789.
The Eighth Circuit addressed a similar circumstance in United States v. Stapleton, 316 F.3d
754 (8th Cir. 2003). Stapleton was granted a resentencing hearing based on an appeal of his criminal
history points calculation. During Stapleton’s resentencing hearing, one of the witnesses testified
No. 05-3253
United States v. Hopson
Page 6
that during his testimony Stapleton was staring at him, shaking his head and moving his lips to
convey the message of “I am going to get you” or “I am going to get even with you.” The district
court found these actions to qualify as an obstruction of justice and Stapleton appealed this decision
as beyond the district court’s mandate. The Eighth Circuit held that the district court could impose
an obstruction of justice enhancement, despite that court’s previous mandate to the district court.
In our prior opinion, we did not decide any issues relating to obstruction of justice,
and we did not establish any restrictions preventing the district court from
considering obstruction of justice. Stapleton’s obstructive conduct at resentencing
was simply not an issue in the prior appeal because he had not yet committed it.
Stapleton, 316 F.3d at 757. The court’s final holding was “we do not find it inconsistent to allow
consideration of post-sentencing obstructive conduct that occurs in the judge’s presence at
resentencing as the basis for an obstruction-of-justice enhancement. Otherwise, the judge would lack
an effective remedy for obstructive conduct that interferes with the resentencing process.” This
logic fits this case extremely well. Therefore, this Court’s previous mandate does not act as a bar
to the resentencing of Hopson based on his outburst.
2. The Finality of the Sentence
At Hopson’s final resentencing hearing, he argued that the district court did not have the
authority to impose a new sentence because the district court’s previous sentence had become final.
We are now asked to decide at what point a district judge no longer has the ability to alter an
announced sentence.
Federal Rule of Criminal Procedure 35 addresses the correction of a sentence. Rule 35(a)
states “[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from
arithmetical, technical, or other clear error.” FED. R. CRIM. P. 35(a). “As used in this rule,
No. 05-3253
United States v. Hopson
Page 7
‘sentencing’ means the oral announcement of the sentence.” FED. R. CRIM. P. 35(c). The
significance of these provisions is to define the day on which sentencing occurred, but they do not
provide the specificity necessary to decide the issue here.
The Federal Rules of Criminal Procedure, thus, do not address the precise moment in time
when an oral announcement of sentence becomes final. Since Rule 35 does not compel a finding
that the sentencing here was final, the district court had the discretion to continue the proceedings
to address unresolved issues. While there must be some final line drawn to determine at what point
during sentencing a judge may no longer consider actions before him in sentencing, we need not
draw that bright line today. Instead, upon review of the record, we find that Hopson’s actions in this
case, occurring in the well of the courtroom and in the presence of defense counsel, the prosecutor,
and the district court, clearly fall within the district court’s purview in imposing a sentence.
Therefore, we affirm the decision of the district court to withdraw Hopson’s sentence after
his outburst and resentence him at a later date.
B. Reasonableness of the Sentence
This Court must now review Hopson’s revised sentence for reasonableness. United States
v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006) (“Reasonableness is the appellate standard of
review”) (emphasis in original). The district court imposed the minimum sentence required by
statute for Count 5, carrying and brandishing of a firearm during a crime of violence, 18 U.S.C. §
924(c)(1)(A)(ii), and thus Hopson does not appeal this sentence. Hopson was given eighty-four
months for Counts 1 and 4 and it is this sentence, which we review for reasonableness.
No. 05-3253
United States v. Hopson
Page 8
If the district court imposes a sentence beyond the statutory maximum for a crime based on
facts not found by a jury or admitted by the defendant, then that sentence violates the Sixth
Amendment. Booker, 543 U.S. at 232. The maximum sentence for Count 1 is two hundred and
forty months, 18 U.S.C. § 1951(a); therefore, no Sixth Amendment concern is implicated by the
sentence of eighty-four months for Counts 1 and 4. Based on an undisputed advisory guidelines
calculation, Hopson would receive a sentence between sixty-three and seventy-eight months. The
current sentence of eighty-four months reflects a six-month upward variance from the advisory
guidelines range. The fact that the district court departed from the Sentencing Guidelines does not
mean this sentence is presumptively unreasonable. Foreman, 436 F.3d at 644. Based upon the
district court’s discussion of the section 3553(a) factors, especially its reliance on section
3553(a)(2)(C) in justifying its upward variance from the Guidelines, we find the upward variance
to be reasonable in light of Hopson’s actions in the presence of the district court.
III.
Based on the above discussion, we affirm the district court’s resentencing of Hopson.