United States v. Alvin Vonner

SILER, Circuit Judge, concurring in part and dissenting in part.

I concur in part with the majority opinion, in which we found that there is no Sixth Amendment violation here by the determination of the quantity of drugs involved in the case. However, I respectfully dissent from the conclusion by the majority that the district court’s sentence was unreasonable.

There is no dispute that the sentence imposed in this case, 117 months, fit within the Guidelines range of 108-135 months. Therefore, because the sentence was within the Guidelines range, it is presumptively reasonable. See United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006). The court considered the list of sentencing factors articulated in 18 U.S.C. § 3553(a). It related that it considered all of those factors, and I think that we should accept *570the statement of the court as truth. The court hoped that the defendant would learn

the proper tools and education and other matters that would be offered to you through your Federal prison incarceration that, you know, will give you certain life skills and life styles that will be a benefit to you when your period of incarceration is over.

It also recommended that Vonner receive 500 hours of substance abuse treatment while incarcerated.

The sentencing issues arose in a strange way. On January 31, 2004, Vonner filed a sentencing memorandum to discuss the impact of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In his sentencing memorandum, Vonner argued that he deserved a sentence below the advisory Guidelines range because of his neglect as a child, his confinement in a local jail by state authorities, his cooperation with the government, and the inclusion of drug sales on August 6, 2002, as relevant conduct. In addition, he stated that his prior motions to depart and to be sentenced without regard to the Guidelines had either been affirmed by the Supreme Court or rendered moot. During his sentencing hearing, Vonner did not object to the PSR and stated that his motions were moot in light of Booker. His counsel did, however, highlight at the sentencing that Vonner suffered childhood trauma and had a lengthy period of incarceration in the local jail under his state sentence. At the time the district court issued its sentence, it stated:

With respect to the sentence in this case, the Court has considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guideline range, as well as the other factors listed in 18 United States [Code] 3553(a). Pursuant to Sentencing Reform Act of 1984, it is judgment of the Court that the defendant, Alvin George Vonner, is hereby committed to the custody of the Bureau of Prisons for a term of imprisonment of a hundred and seventeen months. It is felt that this term is reasonable in light of the aforementioned, in light of the aforementioned factors and is a sentence, furthermore, that will afford adequate deterrent and provide just punishment.

Unlike the majority, I would not call this an “offhanded dismissal of a defendant’s claims” which “provides mere lip service to the district court’s responsibility to carefully weigh all the facts and provide a defendant with a well-reasoned, well-thought-out sentencing decision.” Nor would I call it “a perfunctory explanation.” After imposing the sentence, the district court asked counsel for both sides if there were any objections to the sentence that were not previously raised, and the prosecution and defense counsel both replied in the negative. The court again asked defense counsel if he had any other matters to bring up, and counsel said “No.” If counsel had wanted the court to explain further why it felt that the defendant’s family situation, prior criminal problems, or pretrial confinement were not factors to be influential in the determination of the sentence, counsel had the opportunity to obtain the ruling at that point in the sentencing.

Booker did not invent the test of reasonableness. For instance, in a pre-Booker case, United States v. Joan, 883 F.2d 491 (6th Cir.1989), this court approved an upward departure from the Guidelines under a reasonableness test. As our court properly advised us then:

Reasonableness is a flexible standard. The court must act in a rational and just way in an effort to vindicate one of the *571major purposes of the criminal law— deterrence, punishment, isolation, rehabilitation, or retribution.

Id. at 496. Too many times we have forgotten the admonition from that case:

Trial judges are on the front line dealing with real live defendants, and are in a far better position than appellate courts to determine the circumstances justifying [a sentence].

Id.

The sentencing from the court in this case is very similar to that found to be reasonable in United States v. Giles, 170 Fed.Appx. 414, 416 (6th Cir.2006), where the same district court recited that the defendant needed to further his education and learn a trade while in prison. It also said:

For the record, the Court has considered the nature and circumstances of the offense, the history and the characteristics of the defendant and the advisory guideline range, as well as other factors listed in 18 USC § 3553(a).

Id. at 416. The court recommended 500 hours of substance abuse treatment, the same recommendation in the case at bar. The court also asked the parties for any further objections, and none were made, except for special mental health treatment for the defendant, which was granted. Id. at 417.

As we recently said in United States v. Jones, 445 F.3d 865, 871(6th Cir.2006):

[A] sentence within the applicable Guidelines range should not lose its presumption of reasonableness whenever a district judge does not explicitly address every defense argument for a below-Guidelines sentence. Otherwise, the procedural reasonableness review will become appellate micromanaging of the sentencing process.

Id.

The majority feels that the dissent is inconsistent with the decision in United States v. Richardson, 437 F.3d 550, 553-54 (6th Cir.2006). I respectfully disagree. The district court’s pronouncement, although brief, provided its reasons for the rejection of Vonner’s issues. First, it considered the nature and circumstances of the offense and the difficult upbringing of Vonner, because that is recited in 18 U.S.C. § 3553(a)(1). It also considered the history and characteristics of the defendant’s prior record, which included a conviction for murder. Id. It listened to Von-ner and his counsel and felt that there was a need to deter the defendant from further criminal conduct, to protect the public, and to provide Vonner with needed medical care. Id. § 3553(a)(2)(B), (C), and (D).

Therefore, I believe that the sentence pronounced in this case was reasonable because the court sentenced Vonner within the Guidelines and considered all of the relevant factors from § 3553(a). If Vonner wished a more specific reason for not considering his poor family background or any of the other factors he raised, he should have asked the court to articulate it at the time the sentence was pronounced. The numerous cases by our court on the reasonableness of sentences post-Booker have confused attorneys and district courts alike. Sentencing hearings will soon exceed trials in length, if we do not simplify the process. Because the district court complied with the law in the sentencing process, I would AFFIRM the sentence in this case.