United States v. Sexton

ROGERS, J., delivered the opinion of the court, in which McKEAGUE, J., joined. MERRITT, J. (pp. 333-38), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

Defendants Norman T. Sexton, Richard Romans, and James A. Legg challenge the sentences imposed by the district court on remand from this court for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Defendants were sentenced in 2002 after being convicted of offenses stemming from the distribution of cocaine. After the Supreme Court’s decision in Booker, this court entered an order vacating the sentences of all three defendants and remanding their cases for resentencing. On remand, the district court reimposed identical sentences.

Defendants make five primary arguments on appeal: (1) the district court violated their Sixth Amendment and due process rights by using its own factual findings to calculate their sentencing ranges under the United States Sentencing Guidelines; (2) their sentences exceeded the “maximum statutory sentence” allowable for their offenses; (3) the imposition of their sentences in accordance with the remedial portion of Booker created an unconstitutional ex post facto effect; (4) Sexton’s sentence was unreasonable; and (5) the district court’s refusal to order the preparation of new presentencing reports on remand was improper under Fed.R.Crim.P. 32. Because all of these arguments are without merit, we affirm the sentences imposed by the district court.

I.

On December 20, 2000, a jury found all three defendants guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and found defendants Romans and Legg guilty of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The presentencing reports (PSRs) prepared for defendants provided Sentencing Guidelines ranges of 235 to 240 months for Sexton, 210 to 240 months for Legg, and 151 to 188 months for Romans. The PSRs attributed 15.05, 13.69, and 5.86 kilograms of cocaine to Sexton, Legg, and Romans, respectively, for purposes of calculating their base offense levels. Pursuant to U.S.S.G. § 3B1.1, the PSRs also recommended enhancing all three defendants’ base offense levels because of their roles in the offense. Legg’s offense level was also increased under U.S.S.G. § 2Dl.l(b)(l) for his possession of a firearm in connection with the offense. Both the drug quantity and sentencing enhancement determinations made in defendants’ PSRs were based upon testimony given at trial.

After examining the trial testimony, the district court adopted the findings of the PSRs with respect to the drug quantity attributable to each defendant and the application of § 3B1.1 role enhancements to the base offense levels of Sexton and Legg. The court concluded, however, that a role .enhancement was not warranted with regard to Romans and that a firearm enhancement was not warranted with regard to Legg. Consequently, the district court determined that the proper Guidelines ranges for Sexton, Legg, and Romans were 235 to 240 months, 168 to 210 months, and 121 to 151 months, respectively. On June 2, 2002, the district court sentenced Sexton to 238 months, Legg to 196 months, and Romans to 148 months of confinement.

Defendants appealed their sentences to this court, arguing that the use of judicial fact-finding to determine their respective drug amounts violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that the district court erred in applying § 3B1.1 role enhancements. In a decision filed on January 6, 2005, this court rejected defendants’ claims, but noted that a case then pending before the Supreme Court, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), might affect their sentences. Given that possibility, this court advised defendants that they could file a petition for rehearing if Booker did, indeed, have an impact on their sentences. After the Supreme Court decided Booker on January 12, 2005, defendants petitioned this court for rehearing in light of that opinion. This court subsequently entered an order vacating the sentences of all three defendants and remanding the case to the district court for resentencing.

Prior to their resentencing hearing, all three defendants filed motions arguing that Booker required the district court to order the preparation of new PSRs, which were to be based only upon facts that had been found by the jury beyond a reasonable doubt. Defendants also renewed all of their prior objections to the PSRs. The district court denied these motions because defendants failed to point out any factual inaccuracies in the PSRs or any legal authority for the proposition that facts used for sentencing purposes must be found by a jury. Further, with respect to defendants’ renewed objections to the PSRs, the district court held that it was without authority to reopen prior sentencing rulings, since the sole purpose of the remand was for the court to decide whether it would exercise its authority to vary from the Sentencing Guidelines.

Defendants were resentenced on September 1, 2005. At the outset, the district court reiterated that its only task was to determine whether it wished to exercise its new discretionary authority under Booker and that it “ha[d] no authority to revisit the guidelines.” The district court then invited the parties to address the sentencing goals set forth in 18 U.S.C. § 3553(a). At this time, all three defendants objected again to the calculation of their Guidelines ranges using facts not found by a jury beyond a reasonable doubt. Defendants also took this opportunity to request that the sentencing court take into account their individual mitigating circumstances. Sexton, for instance, reminded the court of his good standing in the community, as evidenced by the number of persons attending his bond hearing, and the negative effect that the case was having on his family.

After listening to all of the parties, the district court imposed defendants’ sentences. The district court began by noting that it understood the advisory nature of the Guidelines and that “in arriving at an appropriate sentence,” it would consult the Guidelines as well as the sentencing goals enumerated in § 3553(a). While acknowledging that “the attorneys have spoken to those goals,” the district court then listed and explained all four of the major § 3553(a) sentencing goals. After reciting those goals, the district court concluded that retribution and general deterrence were the most important goals in this case, given that defendants had committed drug trafficking crimes. Finally, the district court explicitly acknowledged each defendant’s assertions as to his specific mitigating circumstances. “Taking into account all of these factors,” the district court then imposed the same sentences that it had initially imposed.

II.

The district court did not violate defendants’ Sixth Amendment and due process rights by making factual findings, by a preponderance of the evidence, to determine defendants’ sentencing ranges. As noted, the district court made its own factual determinations for sentencing purposes, based upon trial testimony, as to the quantity of cocaine attributable to each defendant and each defendant’s role in the offense.

This court has squarely rejected defendants’ contention that Booker and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), require all factual findings affecting a sentence’s severity to be made by a jury beyond a reasonable doubt. In United States v. Cook, 453 F.3d 775, 777 (6th Cir.2006), this court explained that “[Booker ] has no bearing on advisory guideline calculations,” but, instead, applies only to judicially found facts used “to impose a mandatory enhancement.” Where, as here, a district court understands that the Guidelines are only advisory, judicial fact-finding done by the preponderance of the evidence is permissible. As we stated in United States v. Mickens, 453 F.3d 668, 673 (6th Cir.2006) (collecting cases), “[b]y now, it is well established that the preponderance standard does not violate Booker, so long as the trial court appreciates that the guidelines are advisory, not binding.” See also United States v. Stone, 432 F.3d 651, 654-55 (6th Cir.2005) (“Booker did not eliminate judicial facUfinding”). Moreover, nothing in the Supreme Court’s recent ruling in Rita v. United States, — U.S. —, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), changes our understanding.

III.

Defendants’ sentences also did not exceed the maximum statutory penalty that could be imposed for their offenses. In its normal use, the term “statutory maximum” simply describes the “upper limit of punishment that Congress has legislatively specified for violation of a statute.” United States v. Rubbo, 396 F.3d 1330, 1334-35 (11th Cir.2005). Pursuant to the statute under which defendants were convicted, each faced a maximum sentence of 240 months. 21 U.S.C. § 841(b)(1)(C). The district court sentenced Sexton, Legg, and Romans to 238, 196, and 148 months of confinement, respectively. Accordingly, none of the defendants were sentenced to a period exceeding the maximum statutory penalty.

Defendants argue that under Blakely and Booker, a crime’s maximum penalty is the greatest sentence that a judge may impose under the Guidelines based upon facts admitted by a defendant or found by a jury. As previously noted, defendants’ sentences were calculated using drug amounts determined by the district judge. The district court ultimately concluded for sentencing purposes that defendants were responsible for more cocaine than defendants were convicted of being responsible for under their offense definitions. Thus, defendants assert that their sentences, even though less than 240 months, exceed the relevant “statutory maximum.”

Since defendants were sentenced under an advisory Guidelines scheme, the maximum statutory penalty that the district court could impose was determined by the statute of conviction, rather than by a Guidelines range calculated using only jury findings. Defendants appear to base their arguments upon the Supreme Court’s statement in Blakely that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303, 124 S.Ct. 2531 (emphasis added and omitted). This court has explained, however, that Blakely defined the phrase “statutory maximum” only “for purposes of the Apprendi rule” and “did not change the meaning of that term (or equivalent terms) in other contexts.” United States v. Phillips, 143 Fed. Appx 667, 672 (6th Cir.2005) (“the ‘maximum statutory penalty’ is not the same as the Blakely ‘statutory maximum’ ”). Because defendants were sentenced under an advisory Guidelines scheme, which does not implicate Apprendi Sixth Amendment concerns, the Blakely definition is inapplicable here. See Booker, 543 U.S. at 233, 125 S.Ct. 738 (holding that the use of an advisory Sentencing Guidelines scheme “would not implicate the Sixth Amendment”).

IV.

Furthermore, the application of the remedial portion of Booker to defendants’ cases did not create an ex post facto effect in violation of defendants’ due process rights. Defendants claim that the application of Booker’s remedial holding created an ex post facto effect by allowing the district court to impose greater sentences on remand under the advisory Guidelines than it could have imposed at the time that they committed their crimes, when a mandatory Guidelines scheme was in place. Defendants’ arguments with respect to this issue are unavailing, as this court has held in multiple cases that the retroactive application of Booker’s remedial sentencing ruling does not lead to an ex post facto problem. See United States v. Hill, 209 Fed.Appx. 467, 468 (6th Cir.2006); United States v. Barton, 455 F.3d 649, 652-57 (6th Cir.2006); United States v. Shepherd, 453 F.3d 702, 705-06 (6th Cir.2006).

V.

Sexton’s sentence was also not unreasonable. Sexton appears to assert that his sentence was unreasonable because the district court either did not consider his community standing or did not give it adequate weight. The question of whether a sentence is reasonable is determined using the abuse-of-discretion standard of review. Gall v. United States, — U.S. —, 128 S.Ct. 586, 594-96, 169 L.Ed.2d 445 (2007). Review for reasonableness has both procedural and substantive components. See id. at 596; United States v. Borho, 485 F.3d 904, 908 (6th Cir.2007).

The record indicates that the district court committed no significant procedural error with regard to Sexton’s sentence. The district court did not “fail[ ] to calculate (or improperly calculate]) the Guidelines range, treat[ ] the Guidelines as mandatory, fail[] to consider the § 3553(a) factors, select[ ] a sentence based on clearly erroneous facts, or fail[] to adequately explain the chosen sentence.” Gall, — U.S. -, 128 S.Ct. 586, 596, 2007 WL 4292116, at *7. Here, the record demonstrates that the district court sufficiently considered and addressed the Guidelines, the § 3553(a) factors, as well as Sexton’s mitigating circumstances in arriving at Sexton’s sentence. The district court indicated that it was taking into account the properly calculated Guidelines ranges at several points during the resentencing hearing, which is supported by the fact that defendants were, indeed, sentenced within those ranges. The record also reveals that the district court understood the advisory nature of the Guidelines. Further, the district court recited and explained all of the § 3553(a) goals, stated that it had considered all of the goals, and then explained which sentencing goals it believed were the most relevant given that defendants were charged with drug trafficking offenses. Finally, the district court acknowledged that “Mr. Sexton’s attorney made an argument regarding the particular characteristics of the defendant.” While the district court could have provided a more thorough sentencing explanation, its reasoning is adequate to allow for reasonable appellate review. See United States v. Williams, 436 F.3d 706, 708-09 (6th Cir.2006).

Sexton argues that the district court erred by not sufficiently considering his individual characteristics. During the sentencing hearing, Sexton asked the court to take into account his good standing in the community, which he argued was evidenced by the number of people attending his bond hearing, in arriving at his sentence. Although the district court did not state its reasons for rejecting this argument, it did not need to, given that the issue was simple and it was obvious that the court had considered his claim from the context and the court’s explicit acknowledgment of the argument. Under Rita, a district court need not provide an explanation for rejecting a mitigating argument if “the matter is conceptually simple” and “the record makes clear that the sentencing judge considered the evidence and arguments.” 127 S.Ct. at 2468-69; see also United States v. Pettie, 242 Fed.Appx. 318, 317 (6th Cir.2007) (stating that a district court need not discuss a type of “regular, recurring circumstance” during sentencing absent a showing of “exceptional hardship”).

Likewise, Sexton’s sentence is not substantively unreasonable. A sentence will be found to be substantively unreasonable “when the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” Borho, 485 F.3d at 908 (quoting United States v. Collington, 461 F.3d 805, 808 (6th Cir.2006)). Because Sexton’s sentence is within a properly calculated Guidelines range, it is entitled to a presumption of reasonableness on review. Williams, 436 F.3d at 708. That presumption, of course, applies to the Guidelines range calculated by taking into account enhancements based on judge-determined facts. Moreover, nothing in Rita precludes the application of the presumption to such a properly determined Guidelines range.

Sexton has not offered evidence sufficient to rebut the presumption of reasonableness and demonstrate that the district court abused its discretion. The only argument that Sexton appears to make is that the district court, in balancing the relevant § 3553(a) factors, gave too little consideration to his personal characteristics and too much weight to retribution and general deterrence. It is reasonable, however, for the district court to have given significant weight to general deterrence and retribution when sentencing Sexton in light of the extent and duration of his drug trafficking. According to his PSR, Sexton was at the heart of a cocaine trafficking conspiracy involving multiple persons for at least five years. Considering the deleterious effect that such conduct would naturally have on a community, it was not unreasonable for the district court to give less weight to his personal characteristics. Because Sexton’s argument ultimately boils down to an assertion that the district court should have balanced the § 3553(a) factors differently, it is “simply beyond the scope of our appellate review, which looks to whether the sentence is reasonable, as opposed to whether in the first instance we would have imposed the same sentence.” United States v. Ely, 468 F.3d 399, 404 (6th Cir.2006).

VI.

Finally, the district court did not abuse its discretion by declining to order the preparation of new PSRs on remand. Contrary to then* assertions, defendants were not entitled to new PSRs under either Fed.R.Crim.P. 32 or 18 U.S.C. § 3553. Defendants have not pointed to any authority interpreting Rule 32 or § 3553, which are silent on the matter, to require the creation of new PSRs on remand for Booker resentencing.

Moreover, as the district court noted, there was no need to prepare new PSRs in the instant action because the existing PSRs were factually accurate and complete. Defendants do not allege that their PSRs contained any inaccurate facts or omitted any relevant information with regard to their presentencing conduct. And, under this court’s decision in United States v. Keller, 498 F.3d 316, 323-25 (6th Cir.2007), the district court was not permitted to consider the defendants’ post-sentencing conduct for purposes of Booker resentencing. This conclusion is supported by the decisions of courts in other circuits, which have similarly held that it is unnecessary to prepare new PSRs on remand where the parties receive an opportunity to be heard and no new information exists that would warrant an update. See United States v. Alvarez-Cuevas, 210 Fed.Appx. 23, 24 (1st Cir.2007) (holding that on remand for Booker resentencing, defendant was not entitled to the creation of a new PSR where defendant had not identified any new information not already considered by the judge); United States v. Bezmalinovic, 76 Fed.Appx. 375, 377 (2d Cir.2003); United States v. Crank, 21 Fed. Appx. 521, 522-23 (8th Cir.2001).

VII.

For the foregoing reasons, we AFFIRM the sentences imposed by the district court.

. Romans also contends that his sentence was “unreasonable” because it was determined using judicially found facts. As discussed, this argument is without merit.

. This case does not present an issue as to whether the Rita presumption applies to the Guidelines range with or without respect to departures under U.S.S.G. § 5K.

. Defendants’ primary argument for the calculation of new PSRs is that the existing PSRs improperly calculated their Guidelines ranges to the extent that the PSRs relied on facts not determined by a jury. This argument, previously addressed, is contrary to well established law.