United States v. Renner , 281 F. App'x 529 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0352n.06
Filed: June 19, 2008
No(s) 06-6498; 07-5105
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Plaintiff-Appellee, ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
v. )
) OPINION
JAMES ELLIS RENNER; RUFUS HOLMES, )
)
Defendants-Appellants. )
BEFORE: SILER and COLE, Circuit Judges; and CLELAND, District Judge*
R. GUY COLE, JR., Circuit Judge. In this consolidated appeal, Defendants-Appellants
James Ellis Renner and Rufus Holmes challenge their sentences for conspiring to distribute and
distributing a quantity of pills containing oxycodone, a Schedule II controlled substance, as
unreasonable. For the following reasons, we AFFIRM both sentences.
I. BACKGROUND
On June 22, 2006, a grand jury in the Eastern District of Kentucky returned a nineteen-count
superseding indictment against Danny D. Clark, James Ellis Renner, Samuel Duane Lawson, Rufus
Holmes, and Marlene Holmes, charging them with conspiring to distribute and possession with the
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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intent to distribute a quantity of pills containing oxycodone and methadone, in violation of 21 U.S.C.
§ 841(a)(1). This indictment came as a result of a year-long investigation by federal, state and local
authorities, which included multiple controlled buys, confidential informants and cooperating
witnesses.
On August 14, 2006, Renner pleaded guilty to Count 1, conspiring to distribute and
possession with the intent to distribute a quantity of pills containing oxycodone; Count 13, aiding
and abetting the possession of, with the intent to distribute, a quantity of pills containing a detectable
amount of oxycodone; Count 15, aiding and abetting the possession of, with the intent to distribute,
a quantity of pills containing a detectable amount of oxycodone; and Count 19, criminal forfeiture
pursuant to 21 U.S.C. § 853.
As a part of his plea agreement, Renner admitted that, on November 13, 2004, federal, state,
and local authorities seized approximately twenty eighty-milligram OxyContin tablets—a
prescription painkiller containing oxycodone—and $2,125.00 in currency during a traffic stop. On
March 15, 2005, authorities obtained consent to search Renner’s residence and found ten and three-
quarters OxyContin tablets, one hundred and thirteen prescription Xanax pills, and thirty-two units
of hydrocodone, another Schedule II controlled substance. Renner also admitted that, over the
course of the conspiracy, he purchased a total of 2,100 OxyContin tablets, mostly for distribution.
According to the Guidelines, Renner pleaded guilty to an amount of oxycodone equal to
1,125.6 kilograms of marijuana, which put his base offense level at thirty two. UNITED STATES
SENTENCING GUIDELINES (“U.S.S.G.” or “Guidelines”) § 2D1.1(c)(4). The Presentence
Investigation Report (“PSR”) recommended an increase pursuant to U.S.S.G. § 2D1.1(b)(1), for the
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possession of a dangerous firearm during the offense, which resulted in an adjusted offense level of
thirty four. Pursuant to U.S.S.G. § 3E1.1(a), the PSR recommended a three-point decrease for
acceptance of responsibility. Based on a total offense level of thirty one and a criminal history
category of six, the PSR calculated the Guidelines range as 188 to 235 months of imprisonment.
On September 27, 2006, Holmes pleaded guilty to Count 1, conspiring to distribute and
possess with the intent to distribute a quantity of pills containing oxycodone; Count 12, aiding and
abetting the distribution of a quantity of pills containing a detectable amount of oxycodone; Count
17, aiding and abetting the distribution of pills containing a detectable amount of oxycodone; and
Count 19, criminal forfeiture pursuant to 21 U.S.C. § 853.
As a part of Holmes’s plea agreement, Holmes admitted that, on September 22, 2004, federal
and local authorities used a cooperating witness to purchase three OxyContin tablets from him for
the price of $300.00. On April 28, 2006, another cooperating witness purchased two OxyContin
tablets from Holmes for the price of $200.00. As a result of these controlled buys, which were audio
recorded, authorities determined that Holmes and his wife, Marlene, purchased the pills from Clark
for redistribution. Altogether, Holmes and his wife purchased approximately 31,200 OxyContin
tablets and sold approximately two hundred OxyContin tablets per week for three years, all of which
were supplied by Clark.
According to the Guidelines, Holmes pleaded guilty to an amount of oxycodone equal to
16,723 kilograms of marijuana, which put his base offense level at thirty six. U.S.S.G.
§ 2D1.1(c)(4). The PSR recommended a two-point decrease pursuant to the safety valve in U.S.S.G.
§ 2D1.1(b)(9), which resulted in an adjusted offense level of thirty four. Pursuant to U.S.S.G.
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§ 3E1.1(a), the PSR recommended a three-point decrease for acceptance of responsibility. Based
on a total offense level of thirty one and a criminal history category of one, the PSR calculated the
Guidelines range as 108 to 135 months of imprisonment.
The United States District Court for the Eastern District of Kentucky sentenced Renner to
200 months on each count to be served concurrently, and Holmes to a term of 87 months on each
count to be served concurrently. Both defendants timely appealed.
II. ANALYSIS
A. James Ellis Renner
Renner argues that (1) the district court’s enhancement of his sentence for possession of a
firearm violated United States v. Booker, 543 U.S. 220 (2005), because the court relied on a fact not
found by a jury beyond a reasonable doubt; and (2) the district court did not properly consider his
poor health during sentencing. We find neither argument compelling.
1. Judicial Fact-Finding
Renner’s argument that the district court violated Booker by judicial fact-finding is meritless.
In Booker, the Supreme Court clarified the constitutionality of judicial fact-finding under the
Guidelines by declaring that the Guidelines range was to be considered advisory rather than
mandatory. Booker, 543 U.S. 259-60. But, as this Court has repeatedly held, “judicial fact-finding
in sentencing proceedings using a preponderance of the evidence standard post-Booker does not
violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by jury.”
United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006); see also United States v. Cook, 453 F.3d
775, 777 (6th Cir. 2006). Contrary to Renner’s claim, Booker did not hold that judicial fact-finding
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is unconstitutional unless the facts applied to the sentencing determination are found beyond a
reasonable doubt.
2. Reasonableness Review
Renner also challenges his sentence of 200 months, within the Guidelines range of 188 to 235
months, as unreasonable. The district court’s task at sentencing is to “impose a sentence sufficient,
but not greater than necessary, to comply with the purposes” of the factors set forth in Section
3553(a). 18 U.S.C. § 3553(a). “‘The court need not recite the[] factors [listed in 18 U.S.C.
§ 3553(a)] but must articulate its reasoning in deciding to impose a sentence in order to allow for
reasonable appellate review.’” United States v. Penson, ---, F.3d ----, 2008 WL 2167383, at *3 (6th
Cir. 2008) (quoting United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005)).
Under Rita v. United States, --- U.S. ---, 127 S. Ct. 2456 (2007), and Gall v. United States,
--- U.S. ---, 128 S. Ct. 586 (2007), we review a district court’s sentencing determination for
reasonableness under a deferential abuse-of-discretion standard. “This review entails a two-step
process. The appellate court ‘must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence.’” Penson,
2008 WL 2167383, at *4 (quoting Gall, 128 S. Ct. at 597). “‘Assuming that the district court’s
sentencing decision is procedurally sound, the appellate court should then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.’” Id. (quoting Gall,
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128 S. Ct. at 597). We may apply a nonbinding, rebuttable presumption of reasonableness to a
within-Guidelines sentence. Rita, 127 S. Ct. at 2462-63.
(a) Procedural Reasonableness
Renner’s central claim is that the district court should have granted a downward departure
because of his poor health. According to the PSR, Renner “has suffered five heart attacks and three
strokes, and has undergone open-heart surgery twice.” Renner has also had two angioplasty
procedures and two cardiac catheterizations, and takes eleven prescription medications in the
morning and six at night for his various heart conditions. Pursuant to U.S.S.G. § 5H1.4, “an
extraordinary physical impairment may be a reason to downward depart; e.g., in the case of a
seriously infirm defendant, home detention may be as efficient as, and less costly than,
imprisonment.” The problem, however, is that Renner did not seek a downward departure in the
district court, and cannot do so now. United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)
(holding that defendant’s failure to seek a downward departure waives the claim on appeal).
To the extent that Renner’s argument could be construed as a challenge to the procedural
reasonableness of the sentence, we review for plain error because at the conclusion of the sentencing
hearing, the district court asked the parties “if there’s any objection to the sentence imposed,” and
Renner’s counsel responded, “No objection, Your Honor.” See United States v. Vonner, 516 F.3d
382, 386 (6th Cir. 2008) (en banc). To demonstrate plain error, Renner must show “(1) that an error
occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error
affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the
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fairness, integrity or public reputation of the judicial proceedings.” United States v. Davis, 397 F.3d
340, 346 (6th Cir. 2005).
Here, no error occurred, plain or otherwise, because the district court properly calculated the
applicable Guidelines range, gave both parties the opportunity to argue for whatever sentence they
deemed appropriate, and considered all of the § 3553(a) factors. United States v. Bolds, 511 F.3d
568, 581 (6th Cir. 2007) (“[I]n reviewing sentences for procedural reasonableness we must ensure
that the district court: (1) properly calculated the applicable advisory Guidelines range; (2)
considered the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the
Guidelines range; and (3) adequately articulated its reasoning for imposing the particular sentence
chosen, including any rejection of the parties’ arguments for an outside-Guildeines sentence and any
decision to deviate from the advisory Guidelines range.”).
After detailing Renner’s extensive criminal history, and noting that “the penalties that [Renner
has] received have not diminished his activities,” the district court concluded that “it is necessary to
impose a substantial sentence in order to adequately deter future criminal conduct of this defendant
and also to protect the public.” The court also considered Renner’s request for leniency based on the
fact that he is serving an eleven-year concurrent state sentence. The court denied the request because
“[t]o impose a sentence otherwise would unduly diminish the seriousness of his offenses and his
activities,” but declined to sentence Renner at the upper end of the Guidelines range because to do
so would violate “subsection (6), the need to avoid unwarranted sentencing disparities among
defendant’s with similar records.” Considering “all the factors in the case, including the undischarged
state term that he will serve, as well as all of the characteristics,” the court ultimately concluded that
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a two-hundred month sentence “would be appropriate and serve all of the statutory purposes . . . just
reviewed.”
True, the court did not mention his medical condition directly, but this fact does not change
our analysis. Although “the record must reflect both that the district judge considered the defendant’s
argument [for a lower sentence] and that the judge explained the basis for rejecting it,” United States
v. Jones, 489 F.3d 243, 251 (6th Cir. 2007) (quoting United States v. Richardson, 437 F.3d 550, 554
(6th Cir. 2006)), Renner’s counsel mentioned Renner’s poor health only in passing during the
sentencing hearing. After describing the severity of Renner’s drug addiction, pointing out his
acceptance of responsibility, and requesting leniency based on a concurrent eleven-year state sentence
that Renner is currently serving, Renner’s counsel concluded: “[G]iven the nature of this offense and
it being the same exact conduct, my client is in poor health, and given the fact that these cases are
essentially the same case as this conspiracy in this court, we would ask that the Court consider not
only sentencing Mr. Renner to the lower end of the guidelines but to run his federal sentence
concurrent with the state charges.” A district court’s failure to respond to a statement made in such
a perfunctory manner does not render a sentence procedurally unreasonable. See United States v.
Liou, 491 F.3d 334, 339 n.4 (6th Cir. 2007) (“[W]hile a district court’s failure to address each
argument [of the defendant] head-on will not lead to automatic vacatur, we will vacate a sentence if
the ‘context and the record’ do not ‘make clear’ the court’s reasoning.”) (quoting Rita, 127 S. Ct. at
2469).
Furthermore, the record demonstrates that the district court correctly calculated the Guidelines
sentencing range, considered the availability of Guideline departures, independently applied all the
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§ 3553(a) factors, including Renner’s arguments for a lower sentence, and explained its reasons for
imposing a sentence of 200 months. The district court also noted in detail the nature and
circumstances of Renner’s criminal history, including multiple prior felony and misdemeanor drug
convictions. In short, the district court adequately explained the chosen sentence to allow for
meaningful appellate review. Bolds, 511 F.3d at 580-81.
(b) Substantive Reasonableness
We review Renner’s challenge to the substantive reasonableness of his sentence for abuse of
discretion. Gall, 128 S. Ct. at 597. We have held that “[a] sentence may be substantively
unreasonable where the district court selects the sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount
of weight to any pertinent factor.” Jones, 489 F.3d at 252 (internal quotations and alterations
omitted). However, sentences within the Guidelines range are afforded a rebuttable presumption of
reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).
Here, Renner has not rebutted the presumption of reasonableness we accord to within-
Guidelines sentences. First, the record does not support the proposition that Renner’s medical
condition cannot be adequately treated by the Bureau of Prisons. See, e.g., United States v. Jones, 197
F. App’x 455, 458-59 (6th Cir. 2006) (declining to find a sentence unreasonable based on the
defendant’s age and physical condition). Second, a policy statement contained in the Guidelines
states that the defendant’s physical condition is “not ordinarily relevant in determining whether a
departure may be warranted.” U.S.S.G. § 5H1.4; see also United States v. Jackson, 408 F.3d 301, 305
n.3 (6th Cir. 2005) (holding that if a district court relies on a discouraged factor in sentencing, such
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as physical condition, “the district court will need to address these provisions and decide what weight,
if any, to afford them in light of Booker”). Because Renner’s medical condition is not ordinarily a
relevant ground for imposing a lower sentence under the Guidelines unless it “is present to an
exceptional degree,” U.S.S.G.§ 5K2.0(a)(4), the failure to reduce his sentence on the basis of his
health—either sua sponte or through a motion for downward departure—was not an abuse of
discretion. Given Renner’s extensive criminal history and the nature of the offense, and given the
court’s careful consideration of his remaining arguments for leniency, we cannot conclude that the
district court selected Renner’s sentence arbitrarily or gave an unreasonable amount of weight to any
pertinent factor. See United States v. Collier, 246 F. App’x 321, 334 (6th Cir. 2007) (holding that
defendant’s age and medical condition “do not sufficiently impugn the reasonableness of a within-
Guidelines range sentence”).
B. Rufus Holmes
1. Reasonableness Review
Holmes challenges his sentence of 87 months, below the Guidelines range of 108 to 135
months, as unreasonable. According to Holmes, the district court did not properly explain and
address the factors used in determining his sentence, nor do the § 3553(a) factors support the length
of that sentence.
(a) Procedural Reasonableness
At the end of Holmes’s hearing, the district court asked the parties if they had any objections
to the sentence, and Holmes’s counsel responded, “No, Your Honor.” Accordingly, we review
Holmes’s claim that his sentence is procedurally unreasonable for plain error. Vonner, 516 F.3d at
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386. Here, no error occurred, plain or otherwise, because the district court properly calculated the
applicable Guidelines range, gave both parties the opportunity to argue for whatever sentence they
deemed appropriate, and considered all of the § 3553(a) factors. Bolds, 511 F.3d at 581.
The district court began by noting the “substantial quantities” of drugs and the extended period
of time the conspiracy lasted. The court went through each statutory factor, considered Holmes’s
history and characteristics—including his medical condition and lack of criminal history—and
explained that it was “sympathetic to his position.” The court then concluded that eighty-seven
months, below the advisory Guidelines range of 108 to 135 months, “would not unduly diminish the
offense that has been discussed here,” and “would be sufficient but not greater than necessary to serve
all of the statutory purposes.” The record demonstrates that the district court correctly calculated the
Guidelines sentencing range, considered the availability of Guidelines departures, independently
applied all the § 3553(a) factors, including Holmes’s arguments for a lower sentence, and explained
its reasons for imposing a sentence of 87 months. In sum, because the district court adequately
explained the chosen sentence to allow for meaningful appellate review, Bolds, 511 F.3d at 580-81,
no plain error occurred.
(b) Substantive Reasonableness
Holmes’s sentence is also substantively reasonable. On appeal, Holmes merely reiterates his
lack of criminal history and his drug addiction as reasons for a shorter sentence, but the district court
explicitly considered both of those factors below. Given the nature and circumstances of the
offense—large quantities of drugs and the extended period of time of the conspiracy—and given the
court’s careful consideration of Holmes’s plea for leniency, we conclude that the district court did
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not select the sentence arbitrarily or give an unreasonable amount of weight to any pertinent factor.
Furthermore, sentences within the Guidelines range are afforded a rebuttable presumption of
reasonableness, Williams, 436 F.3d at 708, and it follows that a below-Guidelines sentence is also
given the same presumption of reasonableness, see United States v. Hamid, 227 F. App’x 475, 479
(6th Cir. 2007). Because Holmes has not advanced any argument to rebut that presumption, the
district court did not abuse its discretion in sentencing him to 87 months.
III. CONCLUSION
For those reasons, we AFFIRM both sentences.
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