RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0260p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 06-1554
v.
,
>
RICHARD MCGEE, -
Defendant-Appellant. -
N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 05-00214—Robert Holmes Bell, Chief District Judge.
Argued: June 7, 2007
Decided and Filed: July 11, 2007
Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Brian P. Lennon,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
McKEAGUE, Circuit Judge. Appellant Richard Bruce McGee was found guilty of
possession with intent to distribute cocaine base, being a felon in possession of a firearm, and
possession of a firearm in furtherance of a drug trafficking crime. With respect to the first two
offenses, the district court calculated a Guidelines range of 46-57 months in prison and sentenced
Appellant to 48 months for each offense, to be served concurrently. With respect to the third
offense, the district court sentenced Appellant to the statutory mandatory minimum of 60 months
in prison, to be served consecutively to the 48-month sentence. On appeal, Appellant claims that
(1) the district court erred in the scoring of his criminal history category and (2) his sentence is
unreasonable. For the reasons stated below, we AFFIRM.
I. BACKGROUND
The charges and convictions in this case arose out of events on July 13, 2005. During the
execution of a search warrant on Appellant’s home in Benton Harbor, Michigan, Detective Eugene
1
No. 06-1554 United States v. McGee Page 2
Casto found the following items in Appellant’s bedroom: cocaine base, a loaded .44 Magnum
handgun, a 12-gauge shotgun, and packaging material. John Hopkins of the Berrien County
Sheriff’s Department also found cocaine in the left pocket of the pants that Appellant was wearing.
Sergeant Robert Boyce testified that he interviewed Appellant in a squad car outside the
house that day. After receiving his Miranda rights, Appellant stated that he understood those rights
and that he was still willing to speak. Appellant then admitted to Sergeant Boyce that (1) the
cocaine found at the residence and on his person belonged to him; (2) he intended to sell part of the
cocaine seized and to use part of it; (3) the 12-gauge shotgun belonged to him, as he had purchased
it from someone named Timothy five or six years ago; (4) he purchased the .44 Magnum handgun
from an unknown person in Benton Harbor one year ago; and (5) he had the .44 Magnum for
protection in case someone “tried to rip [him] off.” J.A. at 134-35.
On December 16, 2005, a jury returned guilty verdicts on all counts of a three-count
indictment. Appellant was found guilty of Count 1, possession of cocaine base with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); Count 2, unlawful possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1); and Count 3, unlawful possession of a firearm
in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i).
The Presentence Report (“PSR”)1 recommended finding that Appellant’s criminal history
category was II, based on three criminal history points: two points were added for Appellant’s 1992
felony drug conviction, and one point was added for his 1996 domestic violence conviction. Thus,
based on a total offense level of 22 and a criminal history category of II, the United States
Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) range calculated in the PSR was 46 to 57
months in prison on each of Counts 1 and 2. Count 3 was not calculated because the minimum term
of imprisonment required by statute is five years, to run consecutively to any other term of
imprisonment imposed.
Appellant objected to the recommendation that two points should be assessed as a result of
his 1992 conviction. He argued that the date for the commencement of the instant felon-in-
possession offense should be July 13, 2005, which would preclude the scoring of his 1992
conviction pursuant to U.S.S.G. § 4A1.2(e)(2), (3), because the commencement of the instant
offense would not have been within ten years of the imposition of his 1992 sentence. Had the
objection been sustained, the Guidelines range would have been 45-51 months. The Probation
Office responded that the instant offense commenced within ten years of his 1992 sentence because
Appellant took possession of the 12-gauge shotgun in 1999 or 2000, per his admission to Sergeant
Boyce. Appellant filed a sentencing memorandum on March 14, 2006. In it, he asked the district
court to consider his addictions and mental heath issues in fashioning a sentence.
At the March 21, 2006 sentencing hearing, the district court denied Appellant’s objection.
Appellant’s attorney referred to him as “a very poor historian,” and stated that although it is
certainly possible that [Appellant] had [the shotgun] as much as five or six years, []
his only basis for knowing how long he possessed that shotgun was the person he
received it from had moved to Ohio, and he thinks that person may have moved to
Ohio as recently as two or three years ago.
J.A. at 151. The district court judge stated that Sergeant Boyce testified that Appellant admitted that
the 12-gauge shotgun was his and that he received it five or six years ago. The judge also noted that
he had no evidence to the contrary, an assertion with which Appellant’s attorney agreed. Thus, the
1
The United States Probation Office used the 2005 edition of the Guidelines manual.
No. 06-1554 United States v. McGee Page 3
district court concluded that Appellant’s possession was within ten years of his 1992 felony
conviction.
The district court thus determined that the Guidelines range was correctly calculated and that
with respect to Counts 1 and 2, Appellant’s total offense level was 22 and his criminal history
category was II. The court therefore sentenced Appellant to 48 months in prison on Counts 1 and
2, to run concurrently, along with 60 months in prison on Count 3, to run consecutively. Appellant
filed a timely appeal.
II. ANALYSIS
A. Standard of Review
We apply a clearly erroneous standard of review to the factual findings of the district court,
and we apply a de novo standard of review to the legal conclusions of the district court. United
States v. Rodriguez, 40 F. App’x 899, 900 (6th Cir. 2002) (per curiam) (quoting United States v.
Curly, 167 F.3d 316, 318 (6th Cir. 1999)). A factual finding is clearly erroneous “when the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006).
We review a criminal sentence for reasonableness, United States v. Dexta, 470 F.3d 612, 614
(6th Cir. 2006) (citing United States v. Jackson, 408 F.3d 301, 304 (6th Cir. 2005)), cert. denied,
2007 WL 669295 (U.S. June 29, 2007) (No. 06-9826), and we credit sentences properly calculated
under the Guidelines with a rebuttable presumption of reasonableness. Rita v. United States, ___
S. Ct. ___, 2007 WL 1772146, at *6 (U.S. June 21, 2007); United States v. Williams, 436 F.3d 706,
708 (6th Cir.), cert. denied, 2007 WL 1854202 (U.S. June 29, 2007) (No. 06-5275).
B. Appellant’s Criminal History Category
Section 4A1.1(b) of the Guidelines provides that in determining a defendant’s criminal
history category, two points are added for each prior sentence of imprisonment of at least sixty days
not counted in Section 4A1.1(a), which provides that three points are added for each prior sentence
of imprisonment exceeding one year and one month. U.S.S.G. § 4A1.1(a), (b). However, Section
4A1.2 of the Guidelines, providing definitions and instructions in computing a criminal history
category, states that prior sentences not within certain time periods will not be counted for criminal
history category purposes. Id. at § 4A1.2(e)(3). Specifically,
(1) Any prior sentence of imprisonment exceeding one year and one month that was
imposed within fifteen years of the defendant’s commencement of the instant offense
is counted. Also count any prior sentence of imprisonment exceeding one year and
one month, whenever imposed, that resulted in the defendant being incarcerated
during any part of such fifteen-year period.
(2) Any other prior sentence that was imposed within ten years of the defendant’s
commencement of the instant offense is counted.
Id. at § 4A1.2(e)(1), (2).
In the instant case, Appellant was sentenced to 180 days in jail for his 1992 felony drug
conviction. Therefore, pursuant to U.S.S.G. § 4A1.2(e)(2), that conviction cannot be considered in
calculating Appellant’s criminal history category under U.S.S.G. § 4A1.1(b) if the instant felon-in-
possession offense commenced after 2002. We have stated that “the offense of felon in possession
is complete once the felon actually obtains possession of a firearm, but continues as long as it
remains in his possession.” United States v. Barnes, 910 F.2d 1342, 1344 (6th Cir. 1990). Based
on Appellant’s admission that he acquired the shotgun five or six years prior to his July 13, 2005
No. 06-1554 United States v. McGee Page 4
arrest, the PSR stated that he committed the instant felon-in-possession offense in 1999 or 2000,
which was within ten years of his 1992 felony drug conviction. For this reason, the PSR included
a two-point addition to his criminal history category. The district court made the same
determination.
On appeal, Appellant argues that the rule of lenity and the Walton estimate rule, providing
that when an ambiguity exists, it should be resolved in a criminal defendant’s favor, are applicable
to the instant case. See United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990). He therefore
concludes that the district court erred when it included the two-point addition in the calculation of
his criminal history category.
Because the only evidence in the record with respect to this issue is Appellant’s admission
to Sergeant Boyce that Appellant first possessed the shotgun five to six years ago, the district court
did not err. Just as we recognized that a prosecutor cannot “rely solely upon ‘evidence’ created
through the phrasing of [his] own question,” United States v. Frost, 125 F.3d 346, 357 (6th Cir.
1997), Appellant in the instant case cannot rely solely–especially after choosing to not testify, file
an affidavit, or make allocution–on his counsel’s argument during sentencing proceedings in
concluding that a factual ambiguity exists with respect to the question of how long he possessed the
shotgun. See United States v. Kane, 887 F.2d 568, 572 (5th Cir. 1989) (statements by counsel are
not evidence); United States v. Peterson, 808 F.2d 969, 975 (2d Cir. 1987) (same).
For these reasons, Appellant’s appeal to the rule of lenity and Walton fails. In Walton, we
held that “when choosing between a number of plausible estimates of drug quantity, none of which
is more likely than not the correct quantity, a court must err on the side of caution.” 908 F.2d at
1302. In that case, however, we specifically noted that there was evidence supporting the drug
estimates of both the prosecution and the defense. Id. at 1302-03. Similarly, the rule of lenity
requires some degree of ambiguity, in which case that ambiguity is generally resolved in the favor
of a criminal defendant. E.g., United States v. One TRW, Model M14, 7.62 Caliber Rifle, 441 F.3d
416, 420 n.3 (6th Cir. 2006) (recognizing that the ambiguity may not trigger the rule unless it is
“grievous”). In contrast, as pointed out by the district court, there is no evidence in the record in the
instant case regarding when Appellant first possessed the gun in question save his own admission
to Sergeant Boyce that he first obtained the gun five or six years prior to his July 2005 arrest.
Indeed, statements made by Appellant’s counsel in arguments at sentencing are not evidence in the
record. Accordingly, Walton and the rule of lenity, which require some ambiguity, are inapplicable.
The district court thus did not err in scoring Appellant’s criminal history.2
C. The Reasonableness of Appellant’s Sentence
In United States v. Booker, 543 U.S. 220, 245 (2005), the Supreme Court held that the
previously mandatory Guidelines are now advisory. However, it left the Guidelines scheme intact
2
Appellant’s other arguments with respect to this issue are similarly unpersuasive. He claims that the district
court’s reliance on Sergeant Boyce’s testimony was misplaced because Boyce had no personal knowledge as to when
the shotgun was actually acquired or whether Appellant’s estimate of a date was accurate. This argument fails to the
extent that Appellant made a direct admission to Sergeant Boyce.
He also contends that the district court erred because this question “did not turn on credibility as much as it
turned on [his] psychological difficulties and [his] inability to recall past events,” problems with respect to which the
district court was “well aware.” Appellant’s Br. 29. This argument demonstrates that Appellant misunderstands the
district court’s conclusion as well as the evidence in the record. Indeed, the district court’s denial of his objection was
based on the fact that, as stated above, there was no evidence in the record other than his own admission that he
possessed the gun for five to six years prior to July 2005. Furthermore, Sergeant Boyce testified that he had conducted
thousands of interviews and that before Appellant admitted that he had obtained the gun five to six years prior to July
2005, Sergeant Boyce determined that Appellant appeared to be normal, coherent, and not under the influence of alcohol
or any controlled substance.
No. 06-1554 United States v. McGee Page 5
for use by the district courts as a guide for sentencing. Id. at 264-65. Therefore, district courts are
permitted to vary from the Guidelines in fashioning a sentence fitting the mandate of 18 U.S.C.
§ 3553(a). United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007). Section 3553(a) of title 18
requires district courts to consider the following factors in determining a defendant’s sentence:
(1) the nature and circumstances of the offense and the history and characteristics of
the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for –
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in the
guidelines . . .;
(5) any pertinent policy statement . . .;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
We now review sentences under a reasonableness standard. Booker, 543 U.S. at 261-62;
Borho, 485 F.3d at 908. The reasonableness review contains both procedural and substantive
components. United States v. McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006). The procedural
aspect examines the rationale supporting the district court’s sentence, seeking to ensure that the
district court adequately considered the § 3553(a) factors. United States v. Trejo-Martinez, 481 F.3d
409, 412 (6th Cir. 2007) (citation omitted). The district court must explain its reasoning in a
manner sufficient to permit meaningful appellate review. Id. at 412-13 (citation omitted). “A
sentence may be procedurally unreasonable if 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.”
Borho, 485 F.3d at 908 (quoting United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)).
However, we have emphasized that in order for a sentence to be procedurally reasonable, a district
court need not provide “a rote listing or some other ritualistic incantation of the relevant § 3553(a)
factors.” Trejo-Martinez, 481 F.3d at 413 (citations omitted). “[A] sentence may 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 Collington, 462 F.3d at 808).
As stated above, a presumption of reasonableness applies to a sentence within the Guidelines range.
Rita, 2007 WL at 1772146, at *6.
In his appellate brief, Appellant relies heavily on our now-vacated decision in United States
v. Vonner, 452 F.3d 560, 567-68 (6th Cir.), reh’g en banc granted, (Oct. 12, 2006), for the
proposition that when a criminal defendant raises a specific claim as to why a sentence below the
No. 06-1554 United States v. McGee Page 6
Guidelines range should be imposed, meaningful appellate review requires that the district court
consider the argument and that it explain why it rejected that argument. Recognizing that Vonner
has been vacated, Appellant conceded at oral argument that his contention with respect to the
reasonableness of his sentence would fail under our law as it currently stands.
Appellant urged us, however, to delay issuing a decision in this case until the Supreme Court
decided Rita–which has now been decided–and to allow him to file a supplemental brief following
that decision. Along these lines, Appellant contends that his sentence should be vacated and that
he should be resentenced because he “had called a number of factors to the district court’s attention,
including [his] drug addiction[,] that had led him into the instant offenses, his mental, emotional,
psychological, and medical difficulties, and the fact that [his] mental difficulties caused him to make
a poor decision,” yet the district court “did not address [his] multiple reasons for a lesser sentence
and did not explain either how those reasons factored into the sentencing court’s calculus or the
sentencing court’s reasons for rejecting [his] reasons.” Appellant’s Br. 33, 35.
We reject Appellant’s invitation because although Rita has now been decided, his argument
fails regardless of the disposition of the issues in that case. Appellant’s within-Guidelines sentence
was adequately explained, as the district court judge considered the applicable range and the factors
in § 3553(a). Borho, 485 F.3d at 908. Moreover, the district court carefully considered the nature
and circumstances of Appellant’s drug operations, specifically referencing the facts underlying the
crime. The district court also noted that Appellant has a record of drug convictions, that his choice
to sell cocaine from his house was a serious offense, that his likelihood of recidivism “remains high
unless intervention is had” in light of his continued criminal behavior, and that, while recognizing
the seriousness of the offense and the need to protect the public, a sentence at the lower end of the
Guidelines range provides an opportunity for his rehabilitation.
Appellant’s argument with respect to his alleged mental problems and drug addiction lacks
merit, as he attempts to imply, based on a conversation he had with a psychologist, that his purported
problems prevented him from understanding constructive possession, which resulted in his decision
to go to trial rather than to plead guilty. Not only is this argument attenuated, but Appellant fails
to explain any factual basis for it or why his trial counsel could not apprise him of the distinction
between actual and constructive possession as well as the applicability of those concepts to the facts
of his case. His arguments with respect to his purported drug addiction are similarly so unsupported
and amorphous that the district court did not err in declining to specifically address them. Indeed,
in most cases, if there is no factual basis for a defendant’s argument, the district court need not
specifically address the argument. United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006),
in which we stated in dicta that “[w]here 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,” is not to the contrary. See also United States
v. Gale, 468 F.3d 929, 940 (6th Cir. 2006), cert. denied, 2007 WL 1854180 (U.S. June 29, 2007)
(No. 06-1157).
Finally, Appellant argues that the presumption of reasonableness applicable to a sentence
within the Guidelines range “is not necessarily the appropriate way to review sentences,” and he
asks us “to reconsider its standard of review and to better define what a criminal defendant must do
to rebut the presumption of reasonableness.” Appellant’s Br. 24, 36. As we are bound by the
Supreme Court’s decision in Rita, we must deny the first part of Appellant’s request.
We must deny the second as well. Indeed, Appellant does not argue that the presumption
should not apply under the facts of his case; rather, by asking the panel to “better define what a
criminal defendant must do to rebut the presumption of reasonableness,” he simply invites the panel
to issue an advisory opinion or to consider hypothetical or abstract questions, which Article III of
the Constitution prohibits us from entertaining. Sankyo Corp. v. Nakamura Trading Corp., 139 F.
No. 06-1554 United States v. McGee Page 7
App’x 648, 650 (6th Cir. 2005); United States v. Thomas, 43 F. App’x 728, 729 (6th Cir. 2002)
(“This court has no authority . . . to declare principles or rules of law which cannot affect the matter
in issue in the case before it.” (citation and internal quotation marks omitted)).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.