United States v. Cottrell

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5001

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOHN LEWIS COTTRELL, II,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:09-cr-00005-jpj-pms-3)

Submitted: July 15, 2010 Decided: July 26, 2010

Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender for the Western
District of Virginia, Brian J. Beck, Assistant Federal Public
Defender, Abingdon, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Jennifer R. Bockhorst, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

John Lewis Cottrell, II, was charged with one count of

conspiracy to possess with intent to distribute and to

distribute oxycodone, in violation of 21 U.S.C. § 846 (2006),

and two counts of possession with intent to distribute and

distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1)

(2006). Cottrell pled guilty to all three charges and was

sentenced to 180 months of imprisonment. He now appeals; for

the following reasons, we affirm.

After Cottrell’s arrest on the charges to which he

eventually pled guilty, Cottrell was released on an unsecured

bond, with the condition that he not violate federal, state, or

local law. A few months after his release, Cottrell was

arrested and charged with grand larceny in Virginia state court.

As a result, the district court ordered the bond be forfeited in

part, and Cottrell returned to the custody of the Attorney

General for confinement.

The presentence report (“PSR”) prepared following

Cottrell’s guilty pleas concluded that, based on the drug

quantity involved in his offense conduct, Cottrell’s base

offense level was twenty-eight, pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 2D1.1(c)(6) (2008). The PSR

determined that because Cottrell had committed a criminal

offense while on bond, he was not entitled to an acceptance of

2
responsibility reduction, even though he had admitted to the

charged conduct and cooperated with the probation officer during

the preparation of the PSR. Thus, Cottrell’s total offense

level was twenty-eight.

However, the PSR also determined that Cottrell could be

sentenced as a career offender, pursuant to USSG § 4B1.1,

because of his prior felony convictions, for a total offense

level of thirty-four. In calculating Cottrell’s criminal

history, the PSR noted his several juvenile convictions, none of

which earned him criminal history points. Based on his adult

convictions, the PSR determined that Cottrell’s criminal history

criminal history category was VI. Accordingly, the PSR

concluded that if the court agreed that Cottrell was a career

offender, his Guidelines range for imprisonment would be 262 to

327 months, pursuant to USSG ch. 5, pt. A (sentencing table).

The PSR also noted that, in the event the court determined that

Cottrell was not a career offender, there were potential grounds

for an upward departure based on Cottrell’s prior convictions.

At sentencing, the court determined that Cottrell was

not entitled to the acceptance of responsibility reduction

because, although he had pled guilty and admitted his conduct,

he had committed a criminal violation while on bond. However,

the court sustained Cottrell’s objection regarding the career

offender designation, finding that his prior adult conviction

3
for possession of marijuana while in custody did not constitute

a controlled substance offense within the meaning of USSG

§ 4B1.2. As a result, the court found Cottrell’s total offense

level to be twenty-eight, with a resulting Guidelines range of

140 to 175 months. Nonetheless, the court sentenced Cottrell

above the Guidelines range to 180 months of imprisonment,

specifically noting Cottrell’s lengthy criminal history, the

seriousness of his offense, the need for deterrence, and the

need to protect the public. The court reiterated these factors

in its written statement of reasons.

On appeal, Cottrell challenges the reasonableness of

his sentence on three grounds, arguing: (1) that the district

court’s failure “to issue a sufficient written statement

explaining the upward departure/variance constitutes procedural

error”; (2) “the district court’s upward departure/variance was

procedurally and substantively unreasonable given that one of

the explained bases for the departure—defendant’s juvenile

criminal history—was a factor that the empirically based

criminal history guidelines disregarded and where there was no

reason given for rejecting” Guidelines policy; and (3) the

district court erred when it denied the acceptance of

responsibility reduction, “in light of Mr. Cottrell’s

uncontradicted [sic] expression of remorse, his coordinated

state and federal guilty pleas, and because the district court

4
relied upon improper factors (criminal history and juvenile

history) as a basis for denial.”

When the procedural and substantive reasonableness of

a sentence is challenged on appeal, this court reviews the

sentence using an abuse of discretion standard. See Gall v.

United States, 552 U.S. 38, 51 (2007). Procedural errors

include “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing

to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from

the Guidelines range.” Id.

We first address Cottrell’s argument that the district

court committed procedural error when it failed to give him an

acceptance of responsibility reduction. Under USSG § 3E1.1, if

a “defendant clearly demonstrates acceptance of responsibility

for his offense,” his offense level is decreased by two levels.

The commentary to § 3E1.1 lists a number of factors that may be

considered in making this determination, including admitting the

offense conduct and voluntarily terminating criminal conduct.

USSG § 3E1.1 cmt. n.1. While the commentary explains that

“[e]ntry of a plea of guilty prior to the commencement of trial

combined with truthfully admitting the conduct comprising the

offense of conviction, and truthfully admitting or not falsely

5
denying any additional relevant conduct for which he is

accountable . . . will constitute significant evidence of

acceptance of responsibility,” it also states that “this

evidence may be outweighed by conduct of the defendant that is

inconsistent with such acceptance of responsibility.” USSG

§ 3E1.1 cmt. n.3. Moreover, “[a] defendant who enters a guilty

plea is not entitled to an adjustment . . . as a matter of

right.” Id. The commentary also explains that because “[t]he

sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility,” the judge’s

determination on this reduction “is entitled to great deference

on review.” USSG § 3E1.1 cmt. n.5. Accordingly, we “review a

district court’s decision concerning an

acceptance-of-responsibility adjustment for clear error.”

United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).

Here, Cottrell argues that because he committed the

additional state violation prior to entry of his guilty plea and

not after, the district court should have granted him the

reduction. Moreover, he asserts that the court improperly

considered his criminal disposition as a reason for denying

acceptance. However, we have previously held that continued

criminal conduct following indictment is a sufficient reason for

denying a reduction for acceptance of responsibility. See

Dugger, 485 F.3d at 240 (finding the district court did not err

6
in denying the reduction where defendant engaged in criminal

activity following indictment, even though defendant later

admitted to all criminal conduct); United States v. Kidd,

12 F.3d 30, 34 (4th Cir. 1993) (affirming the denial of the

acceptance of responsibility reduction where defendant committed

criminal activity while on pretrial release, even though

defendant later entered a guilty plea, admitted relevant

conduct, and cooperated with his probation officer). Moreover,

although the district court did note when denying the reduction

that Cottrell had a long criminal history, the court relied on

the fact that he “engaged in serious criminal conduct after the

charges.” The court highlighted Cottrell’s prior criminal

history only in explaining that he had not accepted

responsibility and was “merely going through the motions of

contrition.” Dugger, 485 F.3d at 241 (internal quotation marks

ommitted). Accordingly, we hold that the district court did not

clearly err in denying Cottrell a reduction for acceptance of

responsibility.

Next, Cottrell challenges the district court’s written

explanation of his sentence, arguing that the court failed to

provide a sufficient written explanation as required by

18 U.S.C.A. § 3553(c)(2) (West, Westlaw through P.L. 111-190).

Cottrell asserts that the court not only failed to fulfill the

written requirement, but also failed “to sufficiently explain

7
how the controlling criminal history scoring did not

sufficiently account for defendant’s history and

characteristic.” He further asserts in this claim and in a

separate claim that the district court’s reference to his

“criminal conduct while age 15 . . . was a factor which the

guidelines dictated not be counted given the scoring rules

applicable to juvenile convictions,” and if the court disagreed

with this it needed to explain its policy disagreement in

detail. In his reply brief, Cottrell also argues that despite

the language used by the district court, the increase in his

sentence was a departure, not a variance, and should be reviewed

as such on appeal.

When a district court sentences a defendant outside of

the established Guidelines range, § 3553(c)(2) requires the

court to “state in open court the reasons for its imposition of

the particular sentence,” and “the specific reason for the

imposition of a sentence different from that described, which

reasons must also be stated with specificity in a statement of

reasons form.” In evaluating the sentencing court’s explanation

of a selected sentence, this court has consistently held that,

while a district court must consider the statutory factors and

explain its sentence, it need not explicitly reference § 3553(a)

or discuss every factor on the record. United States v.

Johnson, 445 F.3d 339, 345 (4th Cir. 2006). At the same time,

8
however, the district court “must make an individualized

assessment based on the facts presented.” Gall, 552 U.S. at 50;

see also Rita v. United States, 551 U.S. 338, 356-57 (2007).

The reasons articulated by the district court for a given

sentence need not be “couched in the precise language of

§ 3553(a),” so long as the “reasons can be matched to a factor

appropriate for consideration . . . and clearly tied to

[defendant’s] particular situation.” United States v. Moulden,

478 F.3d 652, 658 (4th Cir. 2007).

In United States v. Carter, 564 F.3d 325 (4th Cir.

2009), we further explained that while the “individualized

assessment [of each defendant] need not be elaborate or lengthy,

. . . it must provide a rationale tailored to the particular

case at hand and [be] adequate to permit meaningful appellate

review.” Id. at 330 (internal quotation marks omitted). Thus,

a conclusory statement that a specific sentence is the proper

one does not satisfy the district court’s responsibilities. Id.

at 328-29. In addition, we cannot presume that the district

court adopted the arguments of one of the parties while imposing

sentence; an appellate court may not guess at the district

court’s rationale. Id. at 329-30.

Here, the district court provided an extensive

explanation prior to sentencing Cottrell. Having recognized the

Guidelines range was 140 to 175 months, the court explained that

9
it had to impose a sentence that was not greater than necessary

to satisfy § 3553(a). The court acknowledged Cottrell’s

extensive criminal history, which began at age fifteen and

continued until, and even after, his arrest for the underlying

offense at the age of twenty-six. The court highlighted the

need for a sentence that would deter Cottrell from criminal

activity, as his prior sentences and periods of probation had

had no deterrent effect. The court also explained that

Cottrell’s offenses had been serious, and that even after being

arrested on federal charges he committed a felony while on bond.

The court stated that Cottrell’s actions indicated that he had

“little intention of changing his behavior or becoming a law

abiding, productive member of society.” Although the court

acknowledged the arguments made by Cottrell’s counsel, it found

that Cottrell’s past indicated that he would be a danger to

society when released, and “that the nature and circumstances of

the offense, as well as in particular the history and

characteristics of [Cottrell],” warranted a sentence above the

Guidelines range in order “to reflect the seriousness of

[Cottrell’s] crime” and “to protect the public from further

crimes” by him. Accordingly, the court imposed a sentence of

180 months.

Despite Cottrell’s contentions, we conclude the

district court’s sentence constituted a variance from Cottrell’s

10
Guidelines range rather than a departure. * We further conclude

that the court adequately explained the rationale for the chosen

sentence, both orally and in writing.

Here, the district court expressly relied on the

§ 3553(a) factors in sentencing Cottrell and in explaining the

above-Guidelines sentence, focusing on Cottrell’s history and

characteristics, and the need for the sentence to deter criminal

conduct and protect the public. In the written statement, the

court again noted that it was sentencing Cottrell to an

above-Guidelines sentence based on the § 3553(a) factors,

specifically “the nature and circumstances of the offense and

the history and characteristics of the defendant,” and “to

protect the public from further crimes” by Cottrell. The court

also noted Cottrell’s high likelihood of recidivism based on his

prior criminal conduct. To the extent that the court referenced

Cottrell’s juvenile convictions, it did so only in terms of

explaining the sentence pursuant to the § 3553(a)(1) factor of

the history and characteristics of the defendant. The court did

*
The Supreme Court in Irizarry v. United States, 553 U.S.
708, ___, 128 S. Ct. 2198, 2202-03 (2008), explained that the
terms “variance” and “departure” are distinct. A departure “is
a term of art under the Guidelines and refers only to non-
Guidelines sentences imposed under the framework set out in the
Guidelines.” Id. at 2202. A variance, on the other hand, is a
non-Guidelines sentence “justified under the sentencing factors
set forth in 18 U.S.C. § 3553(a).” Id. at 2203.

11
not use these convictions to calculate Cottrell’s criminal

history because the increased sentence was, as noted, based on a

variance and not a departure. Accordingly, we hold that the

court properly relied on the § 3553(a) factors to explain the

sentence and variance, both at the sentencing hearing and in the

written statement of reasons. Thus, there was no procedural

error by the court in its explanation of Cottrell’s sentence.

Accordingly, we affirm Cottrell’s conviction and

sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

AFFIRMED

12