United States v. Wells , 305 F. App'x 279 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0789n.06
Filed: December 31, 2008
No. 07-5914
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
JASON TIMOTHY WELLS, ) OPINION
)
Defendant-Appellant. )
BEFORE: KENNEDY, COLE, and GILMAN, Circuit Judges.
COLE, Circuit Judge. Jason Timothy Wells pleaded guilty to one count of possessing a
firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924. At sentencing, the district
court calculated an advisory range of 87 to 108 months of imprisonment, and imposed a within-
Guidelines sentence of 100 months’ imprisonment with three years of supervised release.
Wells now appeals that sentence on the basis of procedural unreasonableness. He argues that
the district court (1) failed to consider his argument for a variance and (2) erred in imposing a
“reasonable and sufficient” sentence, rather than a “sufficient, but not greater than necessary”
sentence. For the following reasons, we AFFIRM the sentence imposed by the district court.
I. BACKGROUND
On March 29, 2006, Metropolitan Nashville Police Department (“MNPD”) Lieutenant
Leander Dupie pulled over a white Honda Civic for failing to come to a complete stop at a red light.
No. 07-5914
USA v. Wells
(Tr. of Proceedings July 20, 2007 (“Hr’g Tr.”), Joint Appendix (“JA”) 60-61.) Wells, who was
driving the vehicle, pulled over at a nearby parking lot. (JA 61.) Lieutenant Dupie exited his
vehicle, made contact with Wells, and performed a routine traffic stop. (JA 60-61.) Because Wells
did not have any outstanding warrants, did not appear to be intoxicated, and possessed a valid
driver’s license, Lieutenant Dupie was prepared to issue Wells a citation and let him go. (JA 61.)
While Lieutenant Dupie conducted the traffic stop, MNPD Officer Elizabeth Harris arrived
on the scene. (Id.) She exited her vehicle and approached the passenger side of Wells’s vehicle.
(JA 62.) Officer Harris observed an open container of alcohol in the vehicle’s back seat. (Id.)
Thereafter, Lieutenant Dupie asked Wells to exit the vehicle. (Id.) Wells complied with the
request—exiting the vehicle and following Lieutenant Dupie to the rear right side of the car. (Id.)
Officer Harris opened the passenger door and began to retrieve the open container. (Id.)
However, on finding a weapon in the vehicle, she immediately exited the car, informed Lieutenant
Dupie of the weapon, and advised Wells that he was under arrest. (Id.)
As soon as Officer Harris informed Wells that he was under arrest, he pushed her out of the
way and ran toward the still running vehicle. (JA 62-63.) Thinking that Wells was going for the
gun, Lieutenant Dupie grabbed Wells around the upper body and instructed him to stop. (JA 63.)
Lieutenant Dupie and Wells struggled as Wells tried to get in his car and Lieutenant Dupie tried to
keep him out. (Id.) Despite Lieutenant Dupie’s efforts, Wells pinned Lieutenant Dupie’s right arm
between the back of the seat and Wells’s body. (Id.) Wells then put the vehicle in gear, hit the gas,
and dragged Lieutenant Dupie for approximately twenty yards. (Id.) Wells dragged Lieutenant
Dupie along the pavement on his knees and stomach until Lieutenant Dupie was able to pull his arm
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free and fall away from the car. (JA 63-64.) Wells does not contend that he stopped or slowed the
car to release Lieutenant Dupie. (JA 64.)
Wells continued to drive away from the scene, exiting the parking lot and continuing on the
nearby roadway. (JA 65.) Wells later abandoned the vehicle, which was found by Lieutenant Dupie
and Officer Harris about one mile away. (Id.) After recovering Wells’s vehicle, Lieutenant Dupie
and Officer Harris conducted an inventory search, recovering a loaded .380-caliber Bersa semi-
automatic pistol in the back seat of the vehicle, a 9-millimeter-caliber Taurus semi-automatic pistol
in the trunk, ammunition, approximately 200 grams of marijuana, and the open container of alcohol.
(JA 65-66; Gov’t’s Statement of Facts 1-2, JA 14-15.)
About an hour after the traffic stop, MNPD Officer Eric Mumaw and another officer found
Wells hiding in bushes near an apartment complex. (Hr’g Tr., JA 70.) Though Wells initially
resisted arrest, he was eventually apprehended and arrested. (JA 71-72.)
On December 13, 2006, the grand jury returned a one-count indictment against Wells for
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924, specifically the
Bersa and Taurus semi-automatic pistols found in Wells’s vehicle. (Indictment, JA 6.) Wells
pleaded guilty to the charge. (Pet. To Enter a Plea of Guilty 1-6, JA 7-12.)
The United States Probation Office filed a Presentence Investigation Report (“PSR”) in the
district court. (PSR, JA 101.) The PSR calculated Wells’s base offense level at 20, since Wells
committed this offense after sustaining a felony conviction for a controlled substance. (JA 105.)
The PSR added four levels because Wells possessed the firearm in connection with another felony,
specifically the possession with intent to distribute marijuana. (JA 106.) Six additional levels were
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added, under U.S.S.G. § 3A1.2(c)(1), because Wells assaulted Lieutenant Dupie “during the course
of the offense or immediate flight therefrom.” (Id.) Finally, Wells’s base offense level was
decreased by three levels for accepting responsibility for the offense. (Id.) With the resulting
offense level of 27 and a criminal history category of IV, Wells’s original advisory guideline range
was 100-to-125 months’ imprisonment with a ten-year statutory maximum. (JA 119.)
In July 2007, Wells filed a Position Statement regarding the PSR. (Wells Position Statement,
JA 16-17.) In his Position Statement, Wells did not object to the sentencing factors in the PSR, with
the exception of the two-point assessment of a Sumner County conviction for DUI in paragraph 34.
(JA 16.) Wells also submitted a Sentencing Memorandum in which he requested that the district
court impose a “sufficient but not greater than necessary” sentence. (Sentencing Mem., JA 18.)
Specifically, Wells argued that his conduct in fleeing from the police did not warrant a six-point
enhancement under U.S.S.G. § 3A1.2(c)(1). (JA 22-24.) Wells also requested leniency because he
had made significant strides toward rehabilitation. (JA 24-26.)
In response to Wells’s Sentencing Memorandum, the Government argued that the six-level
enhancement under U.S.S.G. § 3A1.2(c)(1) for assaulting a law enforcement officer was correctly
applied. (Resp. to Sentencing Mem., JA 34-37.) The Government also argued that the district court
should not sentence Wells below the applicable Guidelines range based on the factors set out in
§ 3553(a). (JA 38-41.) In its conclusion, the Government recommended a sentence at the highest
possible end of Wells’s Guideline range, specifically recommending that the district court impose
a sentence of 120 months. (JA 41-42.) After submitting its response to Wells’s Sentencing
Memorandum, the Government submitted an addendum to the PSR. (Second Addendum to PSR,
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JA 125-26.) Based on Wells’s objection to paragraph 34 of the PSR, the Government adjusted
Wells’s criminal history category to III. (JA 125.) This new criminal history category resulted in
an advisory Guideline range of 87 to 108 months’ imprisonment. (Id.)
At sentencing, the district court addressed objections, in which the following colloquy took
place between the Court and Wells’s attorney, Mr. Lenahan:
The Court: All right. Mr. Lenahan, we’ll take up the objections, any other remaining
objections that you have.
Mr. Lenahan: If Your Honor please, I don’t have any other objections, although --
The Court: I think there was the objection for the enhancement for the bodily injury,
serious bodily injury. do [sic] you still maintain that?
Mr. Lenahan: Well actually, if Your Honor please, it’s not an objection to the use of
that enhancement. Again, it’s a Booker[-]type argument to lessen the impact of that.
The Court: Okay. Well, with those positions, I take it that there is no issue that the
total offense level is 27, the Criminal History Category is III, the guideline range is
87 to 108 months, the period of supervised release is two to three years, the fine
range is $12,500 to $125,000, and there is a one hundred dollar special assessment.
Mr. Lenahan: That’s correct, Your Honor.
(Hr’g Tr., JA 57.)
The Government then presented two witnesses who testified regarding the circumstances of
Wells’s offense, his efforts to flee the police, and his subsequent arrest. (JA 59-74.) Wells presented
one witness who testified regarding Wells’s remorse for the incident and his apology to Lieutenant
Dupie. (JA 75-77.) Wells also read a letter to the district court, in which he expressed remorse for
his actions. (JA 83-85.)
The Government then requested the highest possible Guideline-range sentence—108-months’
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imprisonment. (JA 89.) The Government contended that Wells had a serious criminal history,
(JA 88), and that the district court needed to send a message to Wells and other defendants that
jeopardizing the life of an officer is a serious offense. (JA 88-89.) The Government also argued that
Wells had not done anything exceptional to justify receiving a lower sentence. (JA 89-90.)
In response, Wells’s counsel gave the following argument:
Mr. Lenahan: If Your Honor please, this was a dangerous incident. My client
acknowledged that. I think it’s significant what he did not do. He did not use that
firearm. He did not take that firearm with him. He did not confront the police with
that firearm later. He did not set up some kind of hostage situation. There are many
things that could have made this incident much worse.
He is in a clear period of recovery. I think he has done a remarkable job in
the time he has had.
The Court: You have argued in your papers that the Court should impose no sentence
greater than necessary.
Mr. Lenahan: That’s right.
The Court: And he has got several convictions for evading police in ‘96. He’s got
driving erratically on I-65 in 2000. A few months later, he was evading arrest again
from the officers. He was placed on -- he was given probation, but he failed to
complete the school. Now, another occasion when he was stopped, he had marijuana
blunts, was under the influence. The there was another occasion where he was
convicted of an open container. Oh, I’m sorry, marijuana possession.
And all of these incidents involved the safety of -- another one of these
incidents involved the safety of an officer.
I mean, and at a much younger age, he is involved in an incident when a
firearm was pointed at an individual. So it’s not just alcohol. It’s drugs and
weapons.
Mr. Lenahan: If Your Honor please, he does have all of those things on his record,
and they are significant. And yet, when we talk about a sentence necessary but not
greater than, the government wants to give him nine years, previously they wanted
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to give him ten years, which is the maximum the statute carries for this offense.
Whatever sentence the Judge imposes in any of these cases, you are going to
have your hands on this defendant for three more years after that on supervised
release.
And the man has not been in prison. He has been in jail. He has been on
probation. Almost every one of these things is alcohol-related. And like he said,
that’s not an excuse. But surely the Court doesn’t believe that a sentence of more
than something like four years would be necessary in this case for him to go to prison
for the first time, and you have your hands on his life for three more years after that,
and can sentence him for up to three more years after that if, in fact, he doesn’t
continue his recovery.
Sometimes people have to hit bottom before they can do what’s right. And
I think that has come for this young man. He is still going to have to prove that when
he gets out of whatever sentence that you give him and gets on supervised release.
And really for the rest of his life, because his problem is never going to go away. He
just can’t ever drink again.
But a sentence in this case that’s any longer than something like that seems
to me to be way beyond what’s necessary, if your Honor please. Seven, eight, nine
years, Your Honor? Every case is different, but this individual, it seems to me, has
somewhat differentiated himself from the others who come before you.
I know that’s always a problem with the Court that you have to justify the
sentence in every case with the general sentencing principles. But even a sentence
of, say, four years -- that’s a long sentence. Followed be three years on supervised
release, that’s an enormous amount of time, Your Honor.
(JA 90-92.)
After the Government’s response requesting a sentence at the highest end of the Guidelines
range, the Court announced the following sentence:
Mr. Wells, the Court will commit you to the custody of the Bureau of Prisons for 100
months. The Court will place you on supervised release for a period of three years.
The Court will not impose a fine because you lack the resources to pay a fine. The
Court must impose a special assessment of $100.
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Special conditions of your supervised release will be that you participate in
alcohol and drug testing and substance abuse treatment program as recommended by
the officials in the Bureau of Prisons. You must abstain from the use of all alcohol,
alcoholic beverages, and any drugs. Once you are released from custody, you must
obtain employment and provide evidence of your employment, particularly your
payroll slips, to the probation officer.
You are prohibited from carrying, owning, or possessing a firearm,
destructive device or any other dangerous weapon. You must submit to the
collection of DNA as directed by the Bureau of Prisons. You may not operate a
motor vehicle without a valid driver’s license.
The Court has imposed this sentence, Mr. Wells, because of the prior history
that you have with drugs, with weapons, and with traffic offenses. The Court also
took into account the very dangerous circumstances of this particular offense,
particularly the serious danger to the life of a police officer. The Court was also
concerned that the other sentences that had been previously imposed in this case had
given you periods of probation, and apparently those sentences were not sufficient.
The Court tried to give some recognition for your efforts at rehabilitation. As
I told you at the time of sentencing, if you continue to do well, you will receive
sentence credits of approximately two months, 54 days a year of good time[.]
[T]oward the end of the last ten percent of your sentence[,] [y]ou will be placed in
a community house as a transition to resuming normal life.
And when one considers all of those circumstances, and the net effect of the
sentence, I believe that that will be a sentence that is reasonable and sufficient. The
Court considered all of the personal circumstances in the presentence report and was
very sympathetic to the letters from your family, but, given all of the prior
convictions, particularly those involving danger to others, the Court believes that this
will be a particular sentence that is reasonable for this case.
(JA 93-95.) The district court further stated that Wells was recommended for a facility that gives
access to drug and alcohol treatment programs. (JA 95.)
After imposing sentence, the district court allowed Wells’s attorney to address the Court, but
the court did not ask the parties for objections to Wells’s sentence. (Id.) Wells’s counsel requested
and the district court recommended that Wells be placed in a facility as close to Nashville as
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possible. (Id.) Wells did not raise any further objections to his sentence. This appeal followed.
II. ANALYSIS
Wells argues that his sentence was procedurally unreasonable for two reasons. First, he
argues that the district court failed to explain its reasons for rejecting Wells’s argument for
mitigating the U.S.S.G. § 3A1.2(c)(1) enhancement for assaulting a police officer. Second, Wells
argues that the district court erred in imposing a “reasonable and sufficient” sentence rather than a
sentence “sufficient, but not greater than necessary to comply with the sentencing purposes of”
§ 3553(a)(2). This Court finds neither argument compelling.
A. Standard of Review
This Court reviews a district court’s sentencing determination for reasonableness under a
deferential abuse-of-discretion standard. Rita v. United States, 127 S. Ct. 2456 (2007); Gall v.
United States, 128 S. Ct. 586 (2007). The reasonableness inquiry generally entails review of both
the sentence’s procedural and substantive components. Gall, 128 S. Ct. at 597. Wells challenges
only the procedural reasonableness of his sentence. Accordingly, we limit our review to that issue.
In reviewing sentences for procedural reasonableness, this Court “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 articled its reasoning for imposing the particular sentence chosen, including any
rejection of the parties’ arguments for an outside-Guidelines sentence and any decision to deviate
from the advisory Guidelines range.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). The
district court also commits procedural error if the sentencing judge fails to “set forth enough
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[reasoning] to satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468
(citing United States v. Taylor, 487 U.S. 326, 336-37 (1988)). After the defendant raises a particular
argument in seeking a lower sentence, “the record must reflect both that the district judge considered
the defendant’s argument and that the judge explained the basis for rejecting it.” United States v.
Lalonde, 509 F.3d 750, 770 (6th Cir. 2007) (citations omitted).
Generally, this Court is required to review for plain error when a defendant fails to object
after his sentence is imposed. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en
banc). However, in United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we announced a new
procedural rule requiring district courts to “ask the parties whether they have any objections to the
sentence just pronounced that have not previously been raised.” Id. at 872. “If the district court fails
to provide the parties with this opportunity, they will not have forfeited their objections and thus will
not be required to demonstrate plain error on appeal.” Id. at 872-73. Here the district court gave the
parties an opportunity to speak, but it did not specifically request objections to the imposed sentence.
Thus, the standard of review on appeal is reasonableness, not plain error.
B. The U.S.S.G. § 3A1.2(c)(1) enhancement
Wells argues that the district court erred by failing to address or explain its reasons for
rejecting Wells’s contention that a downward variance was warranted because his conduct was
significantly less serious than other cases warranting a six-point enhancement under U.S.S.G. §
3A1.2(c)(1) for creating a substantial risk of serious bodily injury to a law enforcement officer.
Wells claims that he pointed the district court to a number of cases where this Circuit has applied
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the § 3A1.2(c)(1) enhancement but the relevant conduct in those cases was more serious than
Wells’s conduct. To be sure, Wells does not argue that his conduct falls outside of the ambit of the
U.S.S.G. § 3A1.2(c)(1) six-level enhancement; rather, his position is that the district court imposed
a procedurally unreasonable sentence because it failed to address his request for a downward
variance.
We find that the district court did not abuse its discretion with regard to Wells’s six-level
enhancement under U.S.S.G. § 3A1.2(c)(1). Wells does not dispute, and we likewise find that,
Wells’s conduct falls within the plain language of that section.
Moreover, we are satisfied that “the sentencing judge listened . . . , considered the supporting
evidence, was fully aware of the defendant’s circumstances and took them into account in
sentencing . . . .” See Vonner, 516 F.3d at 387 (citing Rita, 127 S. Ct. at 2469) (internal quotations
omitted). Before announcing Wells’s sentence, the district court heard Wells’s argument for a
downward variance. Wells’s counsel states that he was advancing a “Booker[-]type argument to
lessen the impact” of the § 3A1.2(c)(1) six-level enhancement, contending that:
I think it’s significant what he did not do. He did not use that firearm. He did not
take that firearm with him. He did not confront the police with that firearm later. He
did not set up some kind of hostage situation. There are many things that could have
made this incident much worse.
(Hr’g Tr., JA 90.)
There is no indication that the district court failed to listen to this argument, consider the
evidence supporting it, or otherwise failed to be fully aware of Wells’s circumstances. The court
adequately responded to Wells’s claim—i.e., that his conduct was not as bad as other conduct that
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typically triggers the six-level enhancement—by observing that Wells’s conduct posed a “serious
danger to the life of a police officer.” (JA 94.) A longer monologue is not necessary. The district
court fulfilled its obligation in considering Wells’s arguments in determining his 100-month
sentence.
Although the district court is not required to give the reasons for rejecting any and all
arguments for alternative sentencing, see Vonner, 516 F.3d at 387, the court provided multiple
reasons for its imposed sentence. The district court cited Wells’s prior history of drugs and weapons
offenses as well as the fact that Wells’s earlier probations had not been sufficient to stem his illegal
behavior. The court also gave Wells credit for his recent efforts at rehabilitation. More importantly,
the record reflects the court’s consideration of Wells’s § 3A1.2(c)(1) enhancement argument, stating
“[t]he Court also took into account the very dangerous circumstances of this particular offense,
particularly the serious danger to the life of a police officer.” (Hr’g Tr., JA 94.) In sum, because this
record demonstrates that the district court considered Wells’s arguments that his sentence should be
decreased because of the nature of his enhancement conduct, we find that the district court’s sentence
satisfied the requirements of procedural reasonableness.
C. Reasonable and sufficient
Wells also argues that the district court committed procedural error because it stated it was
imposing a “reasonable and sufficient” sentence, (Id., JA 95), rather than “a sentence sufficient, but
not greater than necessary, to comply with the purposes of section 3553(a)(2).” United States v.
Wilms, 495 F.3d 277, 281 (6th Cir 2007) (citations omitted). Wells is correct that the district court
stated the wrong standard in announcing his sentence. However, as this Court has previously stated,
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“the mere fact that the district court utters the word ‘reasonableness’ or recognizes that we apply a
presumption of reasonableness on appeals does not render its sentencing determination procedurally
unreasonable.” Id. (citing United States v. Davis, 458 F.3d 505, 511 (6th Cir. 2006)). Considering
our repeated conclusion that “the focus on sentencing ‘is on substance rather than form’ and that
sentencing does not require any particular ‘magic words,’” Davis, 458 F.3d at 511 (quoting Vonner,
452 F.3d at 568 & n.4), we find that the district court’s reference to “reasonable and sufficient” does
not render Wells’s sentence procedurally unreasonable.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the sentence imposed by the district court.
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