United States v. Carl Penny ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0293n.06
Case No. 19-4168
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 21, 2021
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. )
STATES DISTRICT COURT FOR
)
) THE NORTHERN DISTRICT OF
CARL PENNY, ) OHIO
Defendant-Appellant. )
)
BEFORE: BATCHELDER, KETHLEDGE, and THAPAR, Circuit Judges.
THAPAR, Circuit Judge. A district court sentenced Carl Penny to 97 months in prison on
a cocaine charge. Penny appealed, and we held that the court had committed procedural error at
sentencing. On remand, the court corrected the error but imposed the same sentence. Penny now
challenges that sentence as vindictive and substantively unreasonable. We affirm.
I.
Carl Penny trafficked cocaine and heroin. DEA agents caught him with over $100,000 in
cash in the trunk of his car, along with 19 rounds of ammunition. He pled guilty to conspiracy to
possess cocaine with intent to distribute, and a district judge sentenced him to 97 months in prison.
We vacated Penny’s original sentence. We explained that Penny was eligible to be
sentenced under a so-called “safety valve” provision that gives judges the discretion to impose a
Case No. 19-4168, United States v. Penny
sentence below the statutory minimum. United States v. Penny, 777 F. App’x 142, 146–47 (6th
Cir. 2019); see also 18 U.S.C. § 3553(f). And that matters even if the judge chooses not to exercise
that discretion, because defendants who qualify for a safety-valve sentence also qualify for a two-
level reduction in the offense level used to calculate their guideline sentencing range. See U.S.S.G.
§ 5C1.2(a). Since the district judge incorrectly determined that Penny did not qualify under the
safety-valve provision, he miscalculated Penny’s offense level. Penny, 777 F. App’x at 147. Thus,
we remanded the case for resentencing.
On remand, the district judge recalculated the guideline range, this time accounting for the
two-level safety-valve reduction.* But the new sentence was the same: 97 months.
II.
Penny argues that his sentence was (1) imposed vindictively, and (2) substantively
unreasonable. We disagree.
A court may not punish a defendant for a successful appeal by imposing a vindictive
sentence on remand. A rebuttable presumption of vindictiveness can arise when the court increases
the duration of a defendant’s sentence the second time around. See North Carolina v. Pearce,
395 U.S. 711, 725–26 (1969). But if the sentences are the same, there’s no presumption, and the
defendant must offer affirmative proof that the court acted vindictively. See United States v.
Rodgers, 278 F.3d 599, 604 (6th Cir. 2002).
Penny acknowledges that the district court imposed the “exact same sentence” on remand
as it had before. Appellant Br. at 12. But he says the court should have reduced the sentence to
*
It appears that the court may have miscalculated the offense level on remand, for reasons unrelated to the safety-
valve reduction. The government noted this issue in its appellate brief. But Penny has not raised it, so we will not
consider it further.
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Case No. 19-4168, United States v. Penny
reflect the extra safety-valve reduction in his offense level under the guidelines. Thus, in Penny’s
view, the same 97-month prison term “amounts in effect to a greater sentence.” Id. at 15.
That is not so. While courts do consider the guideline range in imposing a sentence, their
ultimate responsibility is to impose a sentence that is “sufficient, but not greater than necessary”
to achieve the sentencing goals identified by Congress. 18 U.S.C. § 3553(a). Thus, if a judge
concludes that a guideline sentence is either too harsh or too lenient to achieve the statutory
sentencing objectives, he must vary from the guidelines and impose a different sentence. That’s
what happened here. At Penny’s original sentencing hearing, the judge explained that the
§ 3553(a) sentencing factors required him to impose an above-guidelines sentence of 97 months.
On remand, the judge recalculated the guideline range but continued to believe that a 97-month
sentence best achieved the sentencing objectives. The judge’s view of the appropriate sentence
was consistent—and this consistency does not, without more, suggest spite or malice. That is why
we have repeatedly explained that the presumption of vindictiveness does not apply when the “total
resentence term” and the “total original sentence” are the same. Rodgers, 278 F.3d at 604 (citing
cases).
Since Penny cannot benefit from a presumption of vindictiveness, he must present evidence
that the court acted vindictively on remand. But he has offered none, and we find none in the
record. On the contrary, the district judge offered a thorough explanation for his decision to again
impose an above-guidelines sentence of 97 months. He described the circumstances of Penny’s
crime and explained that the guidelines were “woefully inadequate” to achieve the statutory
sentencing goals described in § 3553(a)(2). R. 209, Pg. ID 1867–70. There is no evidence that
vindictiveness motivated the judge’s conclusion that 97 months was an appropriate sentence.
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Case No. 19-4168, United States v. Penny
And that conclusion was not substantively unreasonable. Penny says the court abused its
discretion by (1) failing to explain why Penny should receive the same sentence on remand given
the safety-valve reduction, (2) failing to consider evidence of his rehabilitation in prison, and
(3) giving an unreasonable amount of weight to one factor—the “need for the sentence imposed to
reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense.” See 18 U.S.C. § 3553(a)(2)(A). The transcript of the sentencing
hearing reflects otherwise.
First, the judge provided a detailed explanation of why he continued to find a 97-month
sentence appropriate, given the extent of Penny’s involvement in the cocaine and heroin trade.
Second, he did consider “the fact that [Penny] has apparently done well while in custody” but
found that fact to be outweighed by the scale and reach of Penny’s drug trafficking. R. 209, Pg.
ID 1873. Third, he did not give undue weight to one factor. In addition to considering the
seriousness of the offense, the judge explained that two other factors—the need for “adequate
deterrence” and especially the need to “protect the public”—played large roles in his analysis. Id.at Pg. ID 1869–70, 1873; see also 18 U.S.C. § 3553(a)(2)(B)–(C). And in any event, “[d]istrict
courts may place great weight on one sentencing factor when that weight is warranted.” United
States v. Wright, 991 F.3d 717, 719 (6th Cir. 2021) (cleaned up). Since the judge provided a careful
and thorough analysis of the applicable sentencing factors and arrived at a substantively reasonable
sentence, there was no abuse of discretion.
We affirm.
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