United States v. Frederick McCormick ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 06-1716/1813
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United States of America, *
*
Appellee/Cross-Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Frederick Allen McCormick, *
*
Appellant/Cross-Appellee. *
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Submitted: November 16, 2006
Filed: December 21, 2006
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Before BYE, BOWMAN, and GRUENDER, Circuit Judges.
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BOWMAN, Circuit Judge.
Frederick Allen McCormick pleaded guilty to possessing pseudoephedrine
knowing or having reasonable cause to believe that it would be used to manufacture
methamphetamine, 21 U.S.C. § 841(c)(2) (2000). The District Court initially
sentenced McCormick to 100 months of imprisonment, but we remanded for
resentencing after United States v. Booker, 543 U.S. 220 (2005). United States v.
McCormick, 142 F. App'x 957, 958 (8th Cir. 2005) (per curiam) (unpublished). On
remand, the District Court calculated a base-offense level of 25 and a criminal history
category IV, which resulted in a guidelines range of 84 to 105 months. The District
Court varied downward and sentenced McCormick to forty-eight months of
imprisonment because McCormick's accomplice apparently received a sentence
between one and two years in state court. McCormick appeals, arguing that the
sentence is unreasonably long in light of the 18 U.S.C. § 3553(a) factors. The
government cross-appeals, arguing that the District Court abused its discretion by
considering the accomplice's state-court sentence and committed clear error in
determining the ultimate sentence. We agree with the government, and we remand for
resentencing.
McCormick was arrested after buying pseudoephedrine while riding in his
accomplice's vehicle. McCormick argued at the second sentencing hearing that an
unwarranted sentencing disparity existed between his federal sentence and his
accomplice's state sentence. Although no record of the accomplice's state conviction
was introduced, the assistant U.S. attorney recalled that the accomplice's sentence was
"one to two [years], or something like that." Sent. Tr. at 19. After considerable
discussion about the accomplice's sentence, the District Court varied downward,
stating, "I believe that the disparate sentences between the two of these gentlemen
compels the court to reduce Mr. McCormick's sentence." Id. at 32–33.
We review a sentence for reasonableness, considering whether the sentencing
court failed to consider a relevant factor that should have received significant weight,
gave significant weight to an improper or irrelevant factor, or committed a clear error
of judgment considering the facts of the case. United States v. Haack, 403 F.3d 997,
1004 (8th Cir.), cert. denied, 126 S. Ct. 276 (2005). In this case, the District Court
lacked the authority to vary downward based on a disparity between McCormick's
federal sentence and his accomplice's state court sentence and therefore gave
significant weight to an improper factor.
In United States v. Jeremiah, 446 F.3d 805 (8th Cir. 2006), we reaffirmed the
principle first articulated by this Court in United States v. Deitz, 991 F.2d 443, 447
(8th Cir. 1993), that "the Commission's goal of imposing uniformity upon federal
sentences for similarly situated defendants would be impeded, not furthered, if
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potential federal/state sentencing discrepancies were considered. . . . The District
Court was neither required nor permitted under § 3553(a)(6) to consider a potential
federal/state sentencing disparity in imposing Jeremiah's sentence." Jeremiah, 446
F.3d at 807–08 (internal quotation marks and citations omitted); accord United States
v. Vilchez, 967 F.2d 1351, 1353–55 (9th Cir. 1992) (holding that the district court's
departure based on the sentencing disparity between the federal-court defendant and
his state-court accomplice was erroneous under same reasoning articulated in Deitz
and Jeremiah).
Under this Court's precedent, the District Court abused its discretion by
considering the disparity between McCormick's federal sentence and his accomplice's
state-court sentence. The District Court also clearly erred by sentencing McCormick
forty-three percent below the low end of the guidelines range based on the
unextraordinary circumstances of this case. See United States v. Dalton, 404 F.3d
1029, 1033 (8th Cir. 2005) ("An extraordinary reduction must be supported by
extraordinary circumstances."). We reject McCormick's argument on appeal that the
sentence is unreasonably long. See, e.g., United States v. Puckett, 163 F. App'x 430,
431 (8th Cir. 2006) (per curiam) (unpublished) (rejecting defendant's challenge that
sentence below advisory range was unreasonable). We reverse and remand for
resentencing consistent with this opinion.
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