United States v. Mark Lee ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3526
___________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Mark Allen Lee, *
*
Appellee. *
___________
Submitted: March 15, 2006
Filed: July 20, 2006
___________
Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
Mark Allen Lee pleaded guilty to one count of possession of five grams or more
of methamphetamine with intent to distribute. Lee's three previous narcotics
convictions subjected him to an enhanced sentence pursuant to 21 U.S.C. § 851. The
resulting advisory Guidelines sentencing range was 262 to 327 months' imprisonment.
However, the district court sentenced Lee to the statutory minimum of 120 months.
The government appeals Lee's sentence as unreasonable. For the following reasons,
we reverse and remand for resentencing.
I. Background
After observing traffic violations, Missouri police stopped Lee's vehicle near
a high school. Lee consented to a police search of the vehicle. The officers instructed
the occupants to exit the vehicle. The search uncovered methamphetamine
paraphernalia and $510 in cash. Also, a medicine bottle containing 20.4 grams of pure
methamphetamine was discovered on the ground near one of the vehicle's passengers.
Lee claimed ownership of the methamphetamine. He also admitted that he and his
passengers had been smoking methamphetamine just prior to the traffic stop and that
he had supplied the others with methamphetamine. Police arrested Lee and two
passengers.
Lee pleaded guilty to one count of possession of five grams or more of
methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B). Due to Lee's three previous narcotics convictions, the government sought
to enhance Lee's sentence pursuant to 21 U.S.C. § 851. The presentence report
("PSR") calculated Lee's base offense level as 28 and added one level because the
offense occurred near a high school—a protected location. However, Lee's career-
offender status raised the total offense level to 34, including a three-level adjustment
for acceptance of responsibility. The PSR calculated a criminal history of category VI.
The resulting advisory Guidelines range was 262 to 327 months' imprisonment.
At sentencing, the district court noted Lee's criminal history and criticized him
for his failure to conform his behavior with the law, notwithstanding the prior
convictions and punishments. The court told Lee that he was "too old for this" and that
he needed to make more of an effort to clean himself up because if he was caught
again, he could expect to face incarceration for the remainder of his life. At the same
time, the court considered Lee's first conviction as relatively insignificant because Lee
simply possessed a syringe and a "whiff" of methamphetamine, which resulted in a
twelve-day sentence. Lee's other two prior convictions, however, related to the
manufacture and distribution of methamphetamine.
-2-
The court sentenced Lee to 120 months' imprisonment (an approximately 54
percent variance from the bottom of the advisory Guidelines range), reasoning that
"ten years will serve the purpose, protect the public and so forth." The government
then objected to the sentence as unreasonable. The court responded that "the Court
believes that it is a reasonable sentence, that it will serve sufficient for punishment and
protection of the community" and reemphasized the minor nature of Lee's first
offense. The court then concluded "So it seems to me here that Mr. Lee had a drug
problem. So I think that this [ten-year sentence] will serve the purposes of justice." In
its written order, the court explained that "The Court varied from the guidelines by
imposing a sentence of 120 months because the Court found the guideline
imprisonment range to be greater than necessary to achieve a reasonable sentence."
The government appeals the reasonableness of Lee's sentence. Specifically, the
government argues that the district court relied upon improper factors (drug abuse and
age) and failed to give adequate consideration to the seriousness of the offense and the
need to promote respect for the law, provide just punishment, afford adequate
deterrence, and protect the public.
II. Discussion
In sentencing a defendant, the district court should first calculate the advisory
Guidelines range. United States v. Sitting Bear, 436 F.3d 929, 934 (8th Cir. 2006).
Second, the district court should consider whether any departure is warranted under
the Guidelines. Id. Third, the district court should consider the sentencing factors of
18 U.S.C. § 3553(a) and impose a reasonable sentence. Id. at 934–35. We review the
reasonableness of a sentence for an abuse of discretion. United States v. Sebastian,
436 F.3d 913, 915 (8th Cir. 2006). "[A]n abuse of discretion may occur when (1) a
court fails to consider a relevant factor that should have received significant weight;
(2) a court gives significant weight to an improper or irrelevant factor; or (3) a court
considers only the appropriate factors but in weighing those factors commits a 'clear
error of judgment.'" United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (citing
-3-
Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)). The more the district
court varies from the advisory Guidelines range, the more compelling the justification
pursuant to § 3553(a) must be. United States v. Gall, 446 F.3d 884, 889 (8th Cir.
2006). Where the record regarding the rationale for a variance is vague, remand for
clarification may be necessary. See United States v. Feemster, 435 F.3d 881, 883–84
(8th Cir. 2006).
Here, the district court imposed a variance of approximately 54 percent. A
variance of this magnitude is large but is neither unique nor necessarily unreasonable.
Feemster, 435 F.3d at 883–84 (reviewing other cases upholding large variances). The
district court adequately articulated its reasoning for the large variance; however,
given the factual record, we hold the court clearly erred by basing its variance
primarily upon Lee's age and history of drug abuse. The record reflects that Lee's
characteristics in these areas were not exceptional.
Drug addiction or abuse is not a proper reason to impose a downward variance,
absent exceptional circumstances. See 18 U.S.C. § 3553(a)(5)(A) (instructing
sentencing courts to consider the policy statements of the Sentencing Commission);
see also U.S.S.G. § 5H1.4 ("Drug or alcohol dependence or abuse is not a reason for
a downward departure); U.S.S.G. § 5K2.0(a)(4) ("An offender characteristic or other
circumstance identified in Chapter Five, Part H (Offender Characteristics) . . . as not
ordinarily relevant in determining whether a departure is warranted may be relevant
. . . only if such offender characteristic or other circumstance is present to an
exceptional degree."). Similarly, age is normally not relevant to sentencing, unless the
defendant is elderly or infirm. See U.S.S.G. § 5H1.1; § 5H1.4 ("[A]n extraordinary
physical impairment may be a reason to depart downward; e.g., in the case of a
seriously infirm defendant . . . .").
While Lee has a drug abuse problem, the record indicates that he is more than
a simple user of narcotics. Two of his prior convictions are for distribution-related
-4-
narcotics offenses. The instant offense is also for possession with intent to distribute.
Therefore, Lee falls within the career offender classification, see U.S.S.G. § 4B1.1(a),
and his drug addiction does not present an exceptional circumstance to warrant such
an exceptional variance when weighed against the factors set forth in § 3553(a). The
same is true of Lee's age. Lee is 44 years old, is healthy, and has no history of health
problems. PSR ¶ 49. As such, Lee's case does not present circumstances of the kind
and to the degree that warrant variance on the basis of age.
Based upon the foregoing, we vacate Lee's sentence and remand the case for
resentencing.
______________________________
-5-