RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0059p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-1260
v.
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TONY RICHARDSON, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 04-00164—David W. McKeague, District Judge.
Argued: January 27, 2006
Decided and Filed: February 13, 2006
Before: SILER, BATCHELDER, and MOORE, Circuit Judges.
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COUNSEL
ARGUED: David L. Kaczor, FEDERAL PUBLIC DEFENDERS OFFICE, WESTERN DISTRICT
OF MICHIGAN, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, ASSISTANT
UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: David L.
Kaczor, FEDERAL PUBLIC DEFENDERS OFFICE, WESTERN DISTRICT OF MICHIGAN,
Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Tony Richardson
(“Richardson”) pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a) for robbing a
Bank One branch in Grand Rapids, Michigan, in the summer of 2004. Considering the Sentencing
Guidelines as advisory, the district court classified Richardson as a career offender under U.S.S.G.
§ 4B1.1 because he had two previous state convictions for “crimes of violence,” and sentenced
Richardson to 180 months in prison. On direct appeal, Richardson argues that his sentence is
unreasonable under United States v. Booker, 125 S. Ct. 738 (2005), and furthermore, that the district
court’s enhancement of his sentence as a career offender under U.S.S.G. § 4B1.1 violates his Sixth
Amendment rights. Upon review, we conclude that Richardson’s sentence is reasonable in light of
Booker and does not offend the Sixth Amendment. We AFFIRM.
1
No. 05-1260 United States v. Richardson Page 2
I. BACKGROUND
Defendant-Appellant Richardson appeals his 180-month sentence for bank robbery in
violation of 18 U.S.C. § 2113(a). At approximately 2:00 p.m. on July 2, 2004, Richardson
approached a bank teller in a Bank One in Grand Rapids, Michigan, and passed her a note he had
written on a withdrawal slip announcing a robbery and demanding money. The teller gave
Richardson $4,084.00 in currency, some of which was wrapped in a dye pack, and Richardson fled
from the building. The teller stated that Richardson did not indicate that he had a weapon, and she
recalled that the note he passed her said, “This is a robbery, give me all your $100’s, $50’s, and
$20’s. Act like nothing is wrong or I will shoot you.” Joint Appendix (“J.A.”) at 69 (Presentence
Investigation Report (“PSR”) at ¶ 12). Richardson, who was nineteen at the time, was apprehended
without incident in a nearby apartment building a short while later after the police received a tip
about his location. When Richardson was questioned by police, he admitted that he committed the
robbery and stated that he was not assisted by anyone else. Richardson, who has abused drugs since
age seven, admitted that he used cocaine prior to committing the robbery and that he applied some
of the proceeds from the robbery to buy cocaine base, his drug of choice. Richardson stated to the
police that the note he passed to the teller stated, “Give me the money or you will die, no blow up
ink, $100’s, $20’s, $50’s, be normal.” J.A. at 69 (PSR at ¶ 14); see also J.A. at 38 (Sentencing Hr’g
Tr. at 8). When Richardson requested an attorney, the police ended the interview.
Richardson pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). At the
sentencing hearing on January 31, 2005, the district court determined that Richardson’s total offense
level was 29, which reflected an enhancement under Guideline § 4B1.1 because the court concluded
that Richardson was a career offender, as well as reductions for acceptance of responsibility and
timeliness. The court imposed the career-offender enhancement because it found that, as a matter
of law, Richardson’s prior convictions for larceny from a person and fleeing and eluding were
crimes involving actual violence or the threat of violence as defined by § 4B1.1. Because of
Richardson’s career-offender status, the district court also found that his criminal history category
was a VI.
The statutory maximum for a violation of § 2113(a) is twenty years, and the guideline range
for Richardson, given the district court’s findings, was between 151 and 188 months of
imprisonment. Acknowledging that the Guidelines range was advisory, the district court concluded
that the range was reasonable and appropriate when considered with the factors in 18 U.S.C.
§ 3553(a). The court then sentenced Richardson to 180 months of imprisonment, stating that the
basis for the sentence was “the violent nature of Mr. Richardson since he was young, and his
continuing inability to control his emotions and his impulses and his reactions, even after he’s gotten
free of drugs and has been incarcerated, where he still is a violent predator.” J.A. at 58 (Sentencing
Hr’g Tr. at 28). The court recommended that Richardson participate in the 500-hour residential drug
treatment program, and determined that at the conclusion of his sentence, Richardson would be
placed on three years of supervised release. Richardson filed a timely notice of appeal.
II. ANALYSIS
Richardson advances two claims on appeal: (1) his 180-month sentence is unreasonable
under Booker; and (2) the district court violated his Sixth Amendment rights when it determined he
was a career offender under Guideline § 4B1.1 and enhanced his sentence because of the career-
offender designation.
A. Richardson’s Reasonableness Claim
Richardson first argues that his sentence is unreasonable under Booker. Richardson claims
that his sentence is unreasonable because the district court did not analyze and apply the § 3553(a)
No. 05-1260 United States v. Richardson Page 3
factors with enough specificity when determining his sentence. Richardson also argues that his
sentence is longer than necessary to achieve the purposes of sentencing in § 3553(a)(2).
Booker transformed the Sentencing Guidelines from a mandatory scheme into an advisory
resource. “Without the ‘mandatory’ provision, the Act nonetheless requires judges to take account
of the Guidelines together with other sentencing goals.” Booker, 125 S. Ct. at 764. “[W]hile not
bound to apply the Guidelines,” the district courts “must consult those Guidelines and take them into
account when sentencing.” Id. at 767. The Supreme Court explained that “[s]ection 3553(a)
remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will
guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.”
Id. at 766.
Guided by Booker’s principle of meaningful appellate review for reasonableness and its
respect for the sentencing goals articulated in § 3553(a),1 we “may conclude that a sentence is
unreasonable when the district judge fails to ‘consider’ the applicable Guidelines range or neglects
to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the
judge deems an appropriate sentence without such required consideration.” United States v. Webb,
403 F.3d 373, 383 (6th Cir. 2005). We credit a sentence such as Richardson’s that falls within the
advisory Guidelines range “with a rebuttable presumption of reasonableness.” United States v.
Williams, No. 05-5416, at 2 (6th Cir. Jan. 31, 2006).2 This rebuttable presumption does not relieve
the sentencing court of its obligation to explain to the parties and the reviewing court its reasons for
imposing a particular sentence. Even when selecting a presumptively reasonable sentence within
the Guidelines range, a district court must “articulate[] its reasoning sufficiently to permit reasonable
appellate review, specifying its reasons for selecting” the specific sentence within that range. Id.
at 3. A district court “need not recite these [§ 3553(a)] factors but must articulate its reasoning in
deciding to impose a sentence in order to allow for reasonable appellate review.” United States v.
Kirby, 418 F.3d 621, 626 (6th Cir. 2005). We emphasize the obligation of the district court in each
case to communicate clearly its rationale for imposing the specific sentence. Where a defendant
raises a particular argument in seeking a lower sentence, the record must reflect both that the district
judge considered the defendant’s argument and that the judge explained the basis for rejecting it.
This assures not only that the defendant can understand the basis for the particular sentence but also
that the reviewing court can intelligently determine whether the specific sentence is indeed
reasonable.
Applying these principles to this case, we remain unpersuaded by Richardson’s argument
that his sentence is unreasonable. The sentencing hearing transcript reveals that the district court
articulated and explained its reasons for sentencing Richardson to a term at the higher end of the
Guidelines range. The court did not “simply select” what it viewed as “an appropriate sentence,”
Webb, 403 F.3d at 383, but rather explicitly considered many § 3553(a) factors in sentencing
Richardson. The district court considered Richardson’s history and characteristics, and was
justifiably concerned by his criminal history and the need to protect the public from his behavior.
The court explained that it imposed a sentence at the higher end of the Guidelines range because of
Richardson’s history of violent behavior, including three felony convictions by the time he was
1
The § 3553(a) factors that we consider in our reasonableness analysis include “the nature and circumstances
of the offense and the history and characteristics of the defendant” as well as the need for the defendant’s sentence “to
reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment,” “afford adequate
deterrence,” “protect the public from further crimes of the defendant,” and “to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C.
§ 3553(a)(1)-(2). See also 18 U.S.C. § 3553(a)(3)-(7) (listing additional factors).
2
We have previously rejected the argument “that a sentence within a proper Guidelines range is per-se
reasonable.” Webb, 403 F.3d at 385 n.9.
No. 05-1260 United States v. Richardson Page 4
nineteen. The district court also noted Richardson’s continued problems with violence since being
incarcerated for this offense, which evidenced “his continuing inability to control his emotions and
his impulses and his reactions, even after he’s gotten free of drugs.” J.A. at 58 (Sentencing Hr’g Tr.
at 28).
The district court also questioned Richardson about pending state charges for kidnaping,
carjacking, and armed robbery arising out of an incident occurring only a few days before this bank
robbery. Richardson’s counsel clarified to the court that although he was not Richardson’s attorney
for those state matters, it was his understanding that Richardson intended to plead guilty to those
charges. The district court gave Richardson a chance to explain those pending charges, and stated
that he was not relying on the charges but that “they serve to arguably put this [instant] conduct in
some sort of context.” J.A. at 55 (Sentencing Hr’g Tr. at 25). The court stated that Richardson’s
behavior suggested Richardson was “an incredibly dangerous predator,” and that his “predator
characteristics have continued to manifest themselves while he’s locked up.” J.A. at 54 (Sentencing
Hr’g Tr. at 24).
The record suggests that the district court also considered Richardson’s needs under
§ 3553(a)(2)(D). The court stated it would recommend Richardson for the residential drug treatment
program, and noted that Richardson’s incarceration for this federal offense, rather than the pending
state charges, meant that he would be in the “better run” federal system with “more opportunities
available to prisoners.” J.A. at 57 (Sentencing Hr’g Tr. at 27). The record does not support
Richardson’s argument that the district court acted unreasonably, but instead suggests that the court
was properly guided by the § 3553(a) factors when selecting a sentence at the higher end of the
Guidelines range. Richardson’s sentence is reasonable.
B. Richardson’s Sixth Amendment Claim
Richardson also argues that the district court violated his Sixth Amendment rights when it
concluded that two of his previous felony convictions were for “crimes of violence,” and therefore
determined that he was a career offender under Guideline § 4B1.1 subject to a sentencing
enhancement. Richardson argues that it was improper for the judge, and not a jury, to characterize
his previous convictions as crimes of violence as defined by § 4B1.1. Richardson also argues that
because he committed this offense prior to Booker, applying any detrimental effect of Booker’s
remedy ruling to him “would violate the ex post facto and due process principle of fair notice.”
Appellant Br. at 16. We review de novo Richardson’s constitutional challenge to his sentence.
United States v. Copeland, 321 F.3d 582, 601 (6th Cir. 2003).
Richardson’s arguments lack merit for several reasons. First, controlling law, both before
and after Booker, counsels that a judge can make factual findings about a defendant’s prior
convictions without implicating the Sixth Amendment. See Booker, 125 S. Ct. at 756; Blakely v.
Washington, 542 U.S. 296, 301 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United
States v. Hollingsworth, 414 F.3d 621, 624 (6th Cir. 2005) (“The determination that Hollingsworth’s
prior convictions for multiple counts of aggravated assault and aggravated robbery included at least
one crime of violence was thus squarely within the province of the sentencing judge.”). Conclusions
about Richardson’s prior convictions would be treated the same before or after Booker, and so he
was not harmed by the district court’s application of Booker, which had just been decided at the time
he was sentenced. Richardson’s claims that his sentence under Booker raises ex post facto concerns
are therefore unwarranted, because he was not disadvantaged by the court’s application of Booker.
See Weaver v. Graham, 450 U.S. 24, 29 (1981) (“[T]wo critical elements must be present for a
criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events
occurring before its enactment, and it must disadvantage the offender affected by it.”).
No. 05-1260 United States v. Richardson Page 5
Second, the determination that led to Richardson’s § 4B1.1 enhancement is not a judge-made
factual determination. We consider the question of whether a conviction is a conviction for a “crime
of violence” under the Sentencing Guidelines to be a legal determination, and therefore a question
appropriate for judicial decision-making. See United States v. Martin, 378 F.3d 578, 580 (6th Cir.
2004) (“[W]e give fresh review to the legal question whether either of [defendant’s] convictions
constitutes a ‘crime of violence.’”); United States v. Payne, 163 F.3d 371, 375 (6th Cir. 1998)
(holding “that the crime of larceny from the person in Michigan is a crime of violence as a matter
of law”). It is settled law that both of Richardson’s prior convictions under Michigan law, fleeing
and eluding and larceny from a person, are considered crimes of violence for the purpose of
sentencing. Martin, 378 at 580 (“[c]oncluding that third-degree fleeing and eluding under Michigan
law is a crime of violence”); Payne, 163 F.3d at 375. The district court’s determination that
Richardson should be classified as a career offender under § 4B1.1 was proper and does not violate
his rights under the Sixth Amendment.
III. CONCLUSION
Richardson’s sentence is reasonable and does not violate the Sixth Amendment, and
therefore we AFFIRM the judgment of the district court.