United States v. Raphael Howe, II

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0244n.06

No. 08-6541

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Apr 20, 2010
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
RAPHAEL CORTEZ HOWE, II, ) MIDDLE DISTRICT OF TENNESSEE
)
Defendant-Appellant. )

Before: COOK and McKEAGUE, Circuit Judges, and HOOD, District Judge*.

COOK, Circuit Judge. Raphael Howe appeals as substantively unreasonable his 151 months

sentence imposed after he pleaded guilty to possessing five or more grams of cocaine with intent to

distribute and possessing a firearm as a convicted felon. Careful consideration of the arguments

Howe advances reveals no abuse of discretion in the district court’s below-Guidelines sentencing

and we thus affirm.

A sentence is substantively unreasonable where the district court “bas[es] the sentence on

impermissible factors . . . or giv[es] an unreasonable amount of weight to any pertinent factor.”

United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005). We rebuttably presume within-Guidelines

sentences to be reasonable, and where the district court’s exercise of its discretion leads to its

*
The Honorable Joseph Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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United States v. Howe

imposing a below-Guidelines sentence, “simple logic compels the conclusion that . . . [the]

defendant’s task of persuading us that the more lenient sentence . . . is unreasonably long is even

more demanding.” United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).

The first of Howe’s two arguments for substantive unreasonableness criticizes the district

court for allegedly constraining its assessment to the pre-Booker regime that recognized only

extraordinarily abusive childhood circumstances as warranting sentence reduction. Had the court

appreciated the full extent of its post-Booker discretion to vary from the Guidelines—without

demanding extraordinariness associated with a departure—the argument goes, it likely would have

sentenced Howe more leniently. We “recognize two paths by which a sentencer may rely on a

defendant’s family circumstances to arrive at a sentence below the recommended range: (1)

Guidelines-based departures . . . and (2) variances from the advisory range in light of the § 3553(a)

factors.” United States v. Elliot, 327 F. App’x 540, 546 (6th Cir. 2009) (citing United States v. Blue,

557 F.3d 682, 687 (6th Cir. 2009)). Here, the sentencing transcript confirms that in first calculating

the appropriate Guidelines sentence, the district court decided to depart downward by two levels from

the agreed PSR-calculation in consideration of Howe’s troubled childhood. Yet, Howe contends that

this “modest variance” failed to adequately account for his compelling grounds for leniency.

The record belies Howe’s theory that the court misapprehended the breadth of its discretion.

First, the court expressly acknowledged awareness “of its discretion in the sentencing options.” (Tr.

at 57, 67.) Second, it discussed the drug addiction and abuse circumstances with both Howe and his

mother when each testified in mitigation. Nor did the court—as Howe’s argument

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 No. 08-6541
United States v. Howe

suggests—improperly rely on the Guidelines to the exclusion of other 18 U.S.C. § 3553(a) factors.

After granting the two-level downward departure, the district court moved on to consider the

sentencing factors, explicitly addressing several of them to arrive at a sentence—as he twice

repeated—sufficient, but not greater than necessary, to meet the goals of § 3553(a). While the court

evinced an appreciation of the severity of the Howe’s childhood trauma—calling it “tragic” in

deciding to depart two levels—it also emphasized Howe’s responsibility to conduct himself within

the law. (Tr. at 56.) The court’s sentencing discussion persuades us that it was unmoved by the

defense’s argument for a variance. Howe’s sentence at the bottom of that reduced range fell within

the court’s discretion.

Howe’s second argument centers on his critique of the Guidelines’ overemphasis on small-

quantity prior drug convictions and the district court’s purported misunderstanding of the argument

or its “short shrift” treatment of it. Given our abuse-of-discretion standard of review together with

the presumption of reasonableness we accord to this (below)-Guidelines sentence, Howe’s challenge

cannot succeed. Even dispensing with the virtually insurmountable hurdles the standards of review

present, the transcript reflects a balanced, individualized consideration of the sentencing factors in

light of Howe’s arguments. While the drug convictions fall into the minor range, the court observed

that several involved firearms, a feature Howe ignores. And the court’s expressed concern that Howe

had become a menace to society and to himself, necessitating a meaningful term of incarceration to

break the cycle, likewise supports the soundness of the court’s exercise of its discretion.

Accordingly, we AFFIRM the judgment of the district court.

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