United States v. Marcellus Thompson ( 2009 )


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  •                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                          File Name: 09a0401p.06
    
                    UNITED STATES COURT OF APPEALS
                                      FOR THE SIXTH CIRCUIT
                                        _________________
    
    
                                                     X
                               Plaintiff-Appellee, -
     UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                           No. 08-3760
              v.
                                                      ,
                                                       >
                                                      -
                            Defendant-Appellant. -
     MARCELLUS THOMPSON,
                                                      -
                                                     N
                       Appeal from the United States District Court
                      for the Northern District of Ohio at Cleveland.
                 No. 06-00565-002—Lesley Brooks Wells, District Judge.
                                     Submitted: October 13, 2009
                               Decided and Filed: November 20, 2009
                                                                                                *
           Before: KENNEDY and ROGERS, Circuit Judges; HOOD, District Judge.
    
                                          _________________
    
                                               COUNSEL
    ON BRIEF: Mark R. DeVan, BERKMAN, GORDON, MURRAY & DeVAN,
    Cleveland, Ohio, for Appellant. Laura McMullen Ford, ASSISTANT UNITED
    STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                                          _________________
    
                                                OPINION
                                          _________________
    
            HOOD, Senior District Judge. Defendant-Appellant Marcellus Thompson
    (“Thompson”) appeals the district court’s sentence upon his plea of guilty to a charge
    of possession with intent to distribute cocaine base. The district court determined that
    the applicable advisory sentencing guideline range was 24 to 30 months and sentenced
    
    
    
            *
            The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
    Kentucky, sitting by designation.
    
    
                                                     1
    No. 08-3760        United States v. Thompson                                     Page 2
    
    
    Thompson to 28 months’ imprisonment. Thompson claims that this sentence is improper
    because the district court calculated his sentencing guideline range by including a two-
    point enhancement for a juvenile confinement that occurred less than two years prior to
    the instant offense. The two-point enhancement increased the sentencing guideline
    range from 18 to 24 months to 24 to 30 months. Thompson argues that his sentence is
    procedurally unreasonable in contravention of § 4A1.1(e) of the U.S. Sentencing
    Guidelines (the “Guidelines”) and requests that his sentence be vacated and remanded
    to the district court for resentencing. In response, the United States of America has
    argued that the guideline range was properly calculated and that the sentence was
    procedurally reasonable.
    
           For the reasons which follow, the opinion of the district court is AFFIRMED.
    
    I.     Factual and Procedural Background
    
           On April 21, 2008, Thompson pleaded guilty to possession with intent to
    distribute 1.9 grams of cocaine base. Based on his prior criminal convictions, the Pre-
    Sentence Report (“PSR”) reflected that Thompson had a criminal history score subtotal
    of six points. The PSR assigned the following point values to Thompson’s prior
    offenses:
    
           (1) February 20, 2002: Adjudicated delinquent for violence against his sister,
    resulting in no custody. One point under USSG § 4A1.1(c).
    
           (2) January 31, 2003: Adjudicated delinquent for joyriding, resulting in no
    custody. One point under USSG § 4A1.1(c).
    
           (3) April 3, 2003: Drug possession conviction, resulting in a commitment to six
    months juvenile custody at the Ohio Department of Youth Services, released on May 19,
    2004. Two points under USSG § 4A1.1(b).
    
           (4) October 21, 2003: Drug trafficking conviction, resulting in no custody. One
    point under USSG § 4A1.1(c).
    No. 08-3760        United States v. Thompson                                        Page 3
    
    
           (5) October 13, 2004: Adjudicated delinquent for drug possession, resulting in
    no custody. One point under USSG § 4A1.1(c).
    
           (6) December 28, 2004: Adjudicated delinquent for assault, resulting in no
    custody. One point under USSG § 4A1.1(c).
    
           (7) December 29, 2004: Adjudicated delinquent for drug possession, resulting
    in continuation of parole. One point under USSG § 4A1.1(c).
    
           (8) May 28, 2006: Possession of marijuana conviction, resulting in a sentence of
    three days incarceration. One point under USSG § 4A1.1(c).
    
           These offenses add up to a total of nine criminal history points. Under USSG
    § 4A1.1(c), only a maximum of four points can be attributed to prior convictions that
    lack a significant term of incarceration. As a result, the PSR assigned a total of four
    points for all of the convictions listed above except the April 3, 2003 conviction for drug
    possession. For the April 3, 2003 conviction, which included a significant term of
    incarceration, the PSR assigned two points. In total, the PSR assigned six criminal
    history points for all prior convictions.
    
           Thompson’s April 3, 2003, drug possession conviction occurred when he was
    sixteen years old and resulted in a six-month sentence of confinement at the Ohio
    Department of Youth Services. Because Thompson committed the instant offense less
    than two years following his release from custody for the April 3, 2003, juvenile offense,
    the PSR assessed two additional points to Thompson’s criminal history score, under
    USSG § 4A.1.1(e), for a total of eight criminal history points.
    
           Thompson objected at sentencing to the two additional points under USSG
    § 4A1.1(e), contending that § 4A1.1(e) does not apply to juvenile offenses. Thompson
    admitted that his juvenile offenses would be included in his criminal history points based
    on prior convictions under USSG § 4A1.1(b). On appeal, however, he argues that
    because juvenile offenses are specifically included in the language of § 4A1.2(d) in
    reference to calculating sentences under § 4A1.1(a), (b) and (c), but not specifically in
    No. 08-3760          United States v. Thompson                                       Page 4
    
    
    reference to § 4A1.1(e), § 4A1.1(e) necessarily excludes confinements for juvenile
    offenses and the district court erred in including the juvenile offenses under that section.
    
    II.     Jurisdiction
    
            The district court had jurisdiction pursuant to 18 U.S.C. § 3231 because
    Thompson was charged with and convicted of a offense against the laws of the United
    States; specifically, a violation of 18 U.S.C. § 841(a)(1) . This Court has jurisdiction
    over the instant appeal pursuant to 28 U.S.C. § 1291, which confers appellate
    jurisdiction over final orders of the district court.
    
    III.    Standard of Review
    
            This Court reviews a criminal sentence for reasonableness under an abuse of
    discretion standard. Gall v. United States, 
    552 U.S. 38
    , 
    128 S. Ct. 586
    , 597 (2007). The
    reasonableness analysis has two tiers: procedural reasonableness and substantive
    reasonableness. Id. At issue in this case is whether the district court committed a
    procedural error by improperly calculating Thompson’s criminal history score. Properly
    calculated sentences under the Guidelines are credited with a rebuttable presumption of
    reasonableness. United States v. McGee, 
    494 F.3d 551
    , 554 (6th Cir. 2007) (citing Rita
    v. United States, 
    551 U.S. 338
     (6th Cir. 2007)). This Court reviews the district court’s
    factual findings in calculating the Guidelines range for clear error, but its legal
    conclusions are reviewed de novo. United States v. Galloway, 
    439 F.3d 320
    , 322 (6th
    Cir. 2006).
    
    IV. Analysis
    
            Thompson argues that the PSR and, by extension, the district court, erred in
    calculating his criminal history points under USSG § 4A1.1(e) because the instant
    offense occurred within two years of his release from juvenile confinement. USSG
    § 4A1.1(e) states:
    
            (e) Add 2 points if the defendant committed the instant offense less than
            two years after release from imprisonment on a sentence counted under
            [USSG § 4A1.1](a) or (b) or while in imprisonment or escape status on
    No. 08-3760          United States v. Thompson                                        Page 5
    
    
              such a sentence. If 2 points are added for item (d), add only 1 point for
              this item.
    
    USSG § 4A1.1(e). Applicable § 4A1.1(b) states, “(b) Add 2 points for each prior
    sentence of imprisonment of at least sixty days not counted in (a).” USSG § 4A1.1(a).
    Application Note 2 clearly includes juvenile confinements under USSG § 4A1.1(b),
    stating in part:
    
              An adult or juvenile sentence imposed for an offense committed prior to
              the defendant’s eighteenth birthday is counted only if the confinement
              resulting from such sentence extended into the five-year period preceding
              the defendant’s commencement of the instant offense.
    
    USSG § 4A1.1(b) cmt. n.2 (2007). USSG § 4A1.2(d)(2) specifically directs that two
    points be added “under § 4A1.1(b) for each adult or juvenile sentence to confinement
    of at least sixty days if the defendant was released from such confinement within five
    years of his commencement of the instant offense.” USSG § 4A1.2(d)(2) (emphasis
    added).
    
              Thompson concedes that Application Note 2 to § 4A1.1(b) and the text of
    § 4A1.2(d)(2) require the inclusion of his juvenile offenses and confinements in the
    calculation of his criminal history points under § 4A1.1(b) and § 4A1.2(d)(2).
    Thompson argues that, because § 4A1.1(e) does not explicitly state that juvenile
    confinements are included for the purpose of the two-point enhancement under
    § 4A1.1(e), Thompson’s juvenile confinement cannot be counted under that section.
    
              Thompson takes the position that § 4A1.2(d) “provides for the computation of
    juvenile sentences by reference to three subsections, § 4A1.1(a), (b), and (c)” but that
    § 4A1.1(e) is “[c]onspicuously absent from § 4A1.2(d).” (Appellant Brief, p. 9). As a
    result, Thompson argues that the language of the Guidelines excludes juvenile sentences
    from § 4A1.1(e) because of the maxim of statutory construction, “expressio unius est
    exclusio alterius,” or the inclusion of one (§ 4A1.1(a), (b), and (c) in § 4A1.2(d)) implies
    the exclusion of the other (§ 4A1.1(e) from § 4A1.2(d)). Both of Thompson’s arguments
    are without merit.
    No. 08-3760         United States v. Thompson                                       Page 6
    
    
            This Court has directly and indirectly addressed the issue of whether a juvenile
    sentence of confinement is counted in a defendant’s criminal history score under USSG
    § 4A1.1(e) on at least three occasions. United States v. Hanley, 
    906 F.2d 1116
     (6th Cir.
    1990); United States v. Kirby, 
    893 F.2d 867
     (6th Cir. 1990) (per curiam); and United
    States v. Hall, 279 Fed.Appx. 359, 
    2008 WL 2224804
     (6th Cir. 2008) (unpublished
    opinion). Thompson attempts to distinguish Hanley by stating that the question in
    Hanley was whether commitment for a juvenile offense constitutes “imprisonment”
    under USSG § 4A1.2(d), not whether juvenile commitments are included under
    § 4A1.1(e) for the two-point enhancement. Thompson is correct in stating that the
    question in Hanley was not the same as in this case; however, this Court in Hanley
    explicitly stated that “commitment to a juvenile facility constitutes an ‘imprisonment’
    for the purposes of applying the two-point enhancement provision in Guidelines
    § 4A1.1(e).” Hanley, 906 F.2d at 1120. This Court directly considered this issue in
    Kirby and found that “because the juvenile adjudication was properly counted under
    section 4A1.1(b), the two-point enhancement was proper under section 4A1.1(e), since
    that section is keyed to a sentence counted under section 4A1.1(b).” Kirby, 893 F.2d at
    868. This Court’s precedent in Hanley and Kirby clearly establishes that the district
    court properly included Thompson’s juvenile sentence in its calculation of his criminal
    history points under § 4A1.1(b) and (e).
    
            Other circuits have agreed that “the commission of an offense within two years
    of release from a term of juvenile confinement which is assigned criminal history points
    under section 4A1.1(b) results in two additional criminal history points under USSG
    § 4A1.1(e).” United States v. Allen, 
    63 F.3d 411
    , 412 (8th Cir. 1995) (per curiam); see
    also United States v. Cruz, 
    106 F.3d 1134
    , 1135 n.1 (3d Cir. 1997). Upon reviewing a
    case with facts similar to the one at bar, the First Circuit held:
    
            The defendant does not seriously contend that his juvenile conviction
            was improperly counted under section 4A1.2(d)(2)(A) and, by reference,
            under section 4A1.1(b); indeed, any such contention would be specious
            on its face. It follows inexorably that the two-point enhancement under
            section 4A1.1(e) was properly assessed . . . Because the defendant
            committed the instant offense less than two years after leaving [juvenile
    No. 08-3760        United States v. Thompson                                      Page 7
    
    
           confinement], the district court correctly included two additional CHPs
           [criminal history points] under section 4A1.1(e).
    
    United States v. Unger, 
    915 F.2d 759
    , 764 (1st Cir. 1990) (internal citations omitted).
    
           Thompson admits that his juvenile confinement must be included in his criminal
    history score under § 4A1.1(b). USSG § 4A1.1(e) requires that the district court “[a]dd
    2 points if the defendant committed the instant offense less than two years after release
    from imprisonment on a sentence counted under [USSG § 4A1.1](a) or (b),” which is the
    case here. USSG § 4A1.1(e). Therefore, “because the juvenile adjudication was
    properly counted under section 4A1.1(b), the two-point enhancement was proper under
    section 4A1.1(e), since that section is keyed to a sentence counted under section
    4A1.1(b).” Kirby, 893 F.2d at 868 (1990).
    
           Despite Thompson’s argument to the contrary, this and other circuits have agreed
    that juvenile confinement, the release from which occurs less that two years prior to the
    instant offense, properly generates an enhancement of two criminal history points for the
    purposes of determining a defendant’s sentencing guideline range.            Under this
    calculation, the district court properly attributed six criminal history points to
    Thompson’s prior convictions and two additional points under USSG § 4A1.1(e)
    because the instant offense occurred less than two years after his release from
    confinement, for a total of eight criminal history points and a sentencing guidelines
    range of 24 to 30 months.
    
    V. Conclusion
    
            For the foregoing reasons, we AFFIRM the judgment of the district court.