NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0230n.06
E
No. 12-3524
MAR 2013
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT PE8O S. HUNT, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
WENDELL M. STOUTERMIRE, )
) OPINION
Defendant-Appellant. )
BEFORE: NORRIS, GIBBONS, and DONALD, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Defendant Wendall Stoutermire pleaded guilty to one
count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a). He received a sentence of
twenty-three months of incarceration followed by one year of supervised release. The judgment also
ordered the sentence to run consecutively to a “future imposed sentence in Pennsylvania for [a]
probation violation.” On appeal, defendant contends that his sentence was procedurally and
substantively unreasonable because the district court failed to consider adequately the factors set
forth in 18 U.S.C. § 3553(a). He also challenges the authority of the district court to order the
federal sentence to be served consecutively to an as-yet-unknown state sentence. For the reasons that
follow, we affirm the judgment.
I.
No. 12-3524
United States v. Stouterm ire
This prosecution stemmed from defendant’s use ofcounterfeit Michigan driver’s licenses and
credit cards to make fraudulent purchases at several Best Buy stores in northern Ohio. Defendant
was arrested while attempting to make an illegal purchase at a Best Buy store in Mayfield Heights.
Two accomplices were apprehended in the parking lot while defendant was inside. Defendant
initially gave a false name when approached but later cooperated. When the police searched his car,
they found three syringes, a plastic bag with white powder residue, a new iPhone, and two iPads.
Defendant subsequently entered into a written plea agreement, which provided that defendant
was advised that his plea “requires the Court to impose a mandatory 2 year sentence of
imprisonment.” However, the agreement also stated that, if the defendant cooperated with
authorities, the government “may move the Court for a substantial assistance reduction pursuant to
U.S. S .G. Section 5K1 .1,” which could result in a sentence of less than twenty-four months. The
government filed the contemplated § 5K1 .1 motion prior to sentencing and requested a three-level
reduction.
The district court conducted a sentencing hearing on April 16, 2012. In support of its
substantial assistance motion, the government noted that defendant “immediately admitted to what
was going on, [and] identified the role of the other two individuals who were involved.” He
continued to cooperate as the case proceeded against his co-defendants and was prepared to testify
against them had they elected to go to trial. The Assistant United States Attorney explained that
defendant acted as the straw purchaser. A co-defendant actually held the counterfeit driver’s licenses
and would give one to defendant prior to a purchase. Defendant was paid afier he turned over the
merchandise to his co-defendants.
-2-
No. 12-3524
United States v. Stouterm ire
Not surprisingly, defense counsel agreed with the government with respect to the three-level
reduction. After some discussion among the court, counsel, and the probation officer, it was agreed
that the advisory guidelines range was between nine and fifteen months of imprisomnent. The
district court somewhat reluctantly accepted this calculation, observing that “the way this case was
prosecuted and the way the plea was negotiated. . . is somewhat flawed.”
Defendant, who is now middle-aged, has a history of drug abuse that began at seventeen. In
recent years, he has been addicted to heroin. Defense counsel urged the court to take his client’s
heroin addiction into account as a mitigating factor. After his arrest defendant completed a drug
treatment program, although he relapsed not long thereafter. Despite that relapse, counsel asked that
defendant serve some of his time in a halfway house where he could continue to get treatment.
The district court was not convinced and, while it accepted that the guidelines range was
between nine and fifteen months, concluded that defendant “is certainly not deserving of a sentence
within that range.” Instead it imposed a sentence of twenty-three months, giving defendant one
month less than the statutory minimum for his cooperation. In reaching this sentence, the court
considered several of the factors listed in 18 U.S.C. § 3553(a). With respect to the nature and
circumstances of the offense, it observed that “defendant is a 53-year-old male with an extensive
prior record that includes convictions for larceny, assault, receiving stolen property, and other theft
related charges.” In its view, the “instant case is a continuing and recurring theme in the defendant’s
life.” The court also noted that there was an outstanding warrant for defendant’s arrest issued by
a court in Pennsylvania due to a probation violation. This history of crime troubled the court. Of
particular concern to it was the fact that defendant would receive a lighter sentence than his co
-3-
No. 12-3524
United States v. Stoutermire
defendants even though “it appears that [the] three defendants [are] equally culpable” and defendant
had “the worst criminal record by far.”
The court took into consideration that defendant was placed on bond after his arrest,
completed a residential drug program, but, as already mentioned, then tested positive for opiates.
Not only did he test positive, defendant attempted to alter the results of the drug screening. As a
result, the court concluded that “he is certainly not a good risk for any type of community
confinement.”
With respect to the deterrence factor, the court observed that identity theft burdens the
economy and adversely impacts those whose identity is stolen. In its view, “[A] strong message
needs to be sent, and candidly, in all due respect, even the two year [statutory minimum], at least in
my view, is a slap on the wrist for these kinds of offenses.” Although the court agreed to sentence
defendant below the statutory minimum, it expressed deep-seated reservations:
He is entitled to certain consideration below the mandatory minimum of two years.
However, for all the reasons I’ve just stated, including his lengthy record, the
attempts to try to address his drug addiction while on bond, and primarily for the fact
this defendant has . . at least in my view, the record is deplorable.
. , . He is
. .
involved with some type of criminal offense virtually once every year. .
The court imposed a sentence of twenty-three months of incarceration, one year of supervised
release, ordered $21,419.91 in restitution, and assessed defendant $100. Over defense counsel’s
objection, the court also ordered that defendant’s sentence be served consecutively “to whatever time
is imposed in the Court in Pennsylvania.”
II.
A. The Reasonableness of the Sentence
-4-
No. 12-3524
United States v. Stouterm ire
This court reviews the reasonableness of a sentence under an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51(2007). This standard of review applies regardless of whether
the sentence falls inside or outside of the advisory guidelines range. Id. Reviewing courts must first
determine that the sentencing court committed no procedural error, such as improperly calculating
the guidelines range, failing to consider the § 3553(a) factors, or failing to adequately explain the
reason for its sentence. Id.; United States v. Aleo, 681 F.3d 290, 298 (6th Cir. 2012). If it passes
procedural muster, we ask whether the sentence was substantively reasonable, that is, given the
totality of the circumstances, was it fundamentally fair. Gall, 552 U.S. at 51. While a presumption
of reasonableness applies when the sentence is within the guidelines range, there is no presumption
that the sentence was unreasonable if the sentence imposed falls outside of the range. Id. The extent
of the variance is a factor in the substantive reasonableness inquiry. “If the judge ‘decides that an
outside-Guidelines sentence is warranted, [the judge] must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of the variance.” Aleo,
681 F.3d at 299 (quoting Gall, 552 U.S. at 50).
Defendant does not argue that the guidelines range as accepted by the district court was in
error. He does fault the court, however, for not considering all of the § 3553(a) factors and for
giving an inadequate explanation of its sentence. Defendant points out that the district court granted
the government’s substantial assistance motion, which lowered the guidelines range to between nine
and fifteen months, a range that the court explicitly accepted only to impose an upward variance.
While defendant concedes that the district court referenced the § 3553(a) factors during
sentencing, he notes that the court focused primarily on the negative factors: criminal history, lack
-5-
No. 12-3524
United States v. Stouterm ire
of compliance on parole, and drug addiction. In his view, the court did not adequately consider his
arguments in favor of mitigation: remorse, acceptance of the need for treatment, and cooperation.
In this case, the upward variance was substantial, at least in percentage terms. The district
court added eight months to the upper-end of the guidelines range, an increase of approximately
50%. Such variances require district courts to provide “compelling” reasons for their departure.
Aleo, 681 F.3d at 300 (“{T]he greater the variance. . . the more compelling the justification based
on the factors in § 3553(a) [must be].”) (quotation omitted).
The government counters that the court correctly explained why, despite his substantial
assistance, defendant did not merit a sentence within the adjusted guidelines range. While it is true
that the court focused upon certain factors of 3 553(a) more than others—specifically, the need for
deterrence and defendant’s criminal history—it provided more than a “bare bones” rationale for its
sentence. See United States v. Wallace, 597 F.3d 794, 805-06 (6th Cir. 2010) (collecting cases where
this court has affirmed a sentence despite a bare bones explanation); United States v. McBride, 434
F.3d 470, 474 (6th Cir. 2006) (“This Court has held that although a sentence should reflect the
considerations listed in § 3553(a), there is no requirement that the district court engage in a ritualistic
incantation of the § 3553(a) factors it considers.”) (quotation omitted).
Here, the court expressed strong feelings about two aspects of this case: the need to protect
the public from identity theft, which it viewed as a significant societal problem, and the defendant’s
“deplorable” criminal history. Both of these considerations are legitimate § 3553(a) factors. In
addition, the court’s concern that defendant was receiving a lighter sentence than his co-defendants
-6-
No. 12-3524
United States v. Stoutermire
despite a much worse criminal history is perfectly legitimate, although not required. United States
v. Simmons, 501 F.3d 620, 624 (6th Cir. 2007).
It is true that the court did not dwell on the mitigating factors urged by defendant. Although
it recognized his need for drug treatment, the court determined that his relapse while on bond cut
against confinement in a halfway house. It also acknowledged defendant’s cooperation but
concluded that, while it was useful, it was not compelling.
In short, the district court adequately addressed the section 3553(a) sentencing factors and
provided a rationale for why it imposed a sentence below the statutory minimum but above the
adjusted guidelines range. The sentence was both procedurally and substantively reasonable.
B. Consecutive Sentencing
Defendant next contends that the district court lacked the authority to order that his sentence
be served consecutively to an as-yet-unspecified Pennsylvania sentence. In 2010, defendant was
convicted of simple assault for punching his girlfriend. He received two years of probation, which
he violated almost immediately by failing to report. As a result, an outstanding arrest warrant was
issued, which was pending at the time of his arrest on the federal charges. Even though the
anticipated state sentence was unknown at the time of his federal sentencing, the district court elected
to run it consecutively to his federal sentence over the objection of defense counsel.
In Setser v. United States, 132 S. Ct. 1463 (2012), the Supreme Court rejected the argument
advanced by defendant by answering the following question in the affirmative: “We consider
whether a district court, in sentencing a defendant for a federal offense, has authority to order that
the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.”
-7-
No. 12-3524
United States v. Stouterm ire
Id. at 1466. The Court observed that judges have long had discretion to select between concurrent
and consecutive sentences. Id. at 1468. While the district court cannot ensure that the Pennsylvania
court runs the subsequent state sentence consecutively, that does not mean that it lacks the authority
to order consecutive sentences. As the Supreme Court recognized, “That a sentence is thwarted does
not mean that it was unreasonable. If a district court ordered, as a term of supervised release, that
a defendant maintain a steady job, but a subsequent disability rendered gainful employment
infeasible, we doubt that one would call the original sentence an abuse of discretion.” Id. at 1473.
In our view, this reasoning applies with equal force to the circumstances before us.
III.
The judgment is affirmed.
-8-