United States v. Stewart

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0368p.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. 08-4268
v.
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Defendant-Appellant. -
JAMES W. STEWART,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 07-00289-001—Christopher A. Boyko, District Judge.
Argued: October 21, 2010
Decided and Filed: December 6, 2010
Before: DAUGHTREY, GILMAN, and McKEAUGE, Circuit Judges.

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COUNSEL
ARGUED: Robert Smith, III, Cleveland, Ohio, for Appellant. Joseph P. Schmitz,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
ON BRIEF: Robert Smith, III, Cleveland, Ohio, for Appellant. Joseph P. Schmitz,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. James W. Stewart was convicted on
four counts arising out of an armed bank robbery that took place in Euclid, Ohio. He
was sentenced to a total of 60 years in prison, followed by three years of supervised
release, and ordered to pay $16,833 in restitution jointly and severally with his
coconspirators.

1
No. 08-4268 United States v. Stewart Page 2

Stewart argues on appeal that his conviction should be vacated because the
district court allegedly violated his speedy-trial rights and because the evidence was
insufficient to sustain his conviction. He also contends that his sentence should be
vacated because it is procedurally and substantively unreasonable. For the reasons set
forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. The bank robbery

Stewart, Mario Fomby, Terence L. Moore, and Mark Scafe planned to rob a bank
a few weeks prior to carrying out their plan. On the morning of October 13, 2006, Scafe
drove a stolen van carrying the three other coconspirators to the Charter One Bank,
located at 365 East 200th Street in Euclid, Ohio. Stewart, Fomby, and Moore entered
the bank through the building’s rear doors wearing ski masks and gloves, and
brandishing firearms. While Moore and Fomby demanded at gunpoint that two bank
tellers fill bags with money, Stewart proceeded towards the bank officials’
glass-enclosed cubicles. After yelling at the officials in the cubicles to get down and to
not touch or push anything, Stewart exclaimed to Gwen Washington, an assistant
manager at the bank: “Do you think I’m f[......] playing with you?” He then fired his
shotgun through the glass wall of Washington’s cubicle, hitting her in the back of the
head. Stewart immediately rechambered his weapon after he shot Washington.

Stewart, Fomby, and Moore then fled the scene of the crime in the stolen van
driven by Scafe, who was waiting outside the bank’s rear entrance. Moore and Scafe
testified at Stewart’s trial that, during their getaway, they asked Stewart about the
shooting. He acknowledged that he shot Washington because he had “told her not to
move, and she moved.” The coconspirators split the $16,583 stolen from the bank and
disposed of the guns, masks, and gloves that they had used in the robbery.

Stewart’s shotgun blast, fired at close range, resulted in devastating injuries to
Washington, leading to approximately forty surgeries, five months in the hospital, and
continuing pain, physical impairment, and disfigurement. In addition to Washington’s
No. 08-4268 United States v. Stewart Page 3

injuries, the shooting and intimidation that accompanied the bank robbery caused other
bank employees to suffer severe mental trauma. Stewart’s actions also caused
emotional distress to the loved ones of those he directly injured.

After a seven-month investigation by the Federal Bureau of Investigation, the
four coconspirators were arrested in May and June 2007. Moore and Scafe admitted
their roles in the robbery and testified at trial that Stewart was the shooter. Various
elements of Moore’s and Scafe’s accounts were corroborated by other evidence
presented at trial, including cell phone records and the testimony of a nonparty witness
who stole the getaway car that was used in the robbery.

B. Procedural history

Stewart was indicted in May 2007 on the following four counts arising out of the
bank robbery: conspiracy to commit armed bank robbery, in violation of 18 U.S.C.
§ 371; armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and two counts
of using or carrying a firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A). The first firearm count was punishable under § 924(c)(1)(A)(iii) based
on Stewart’s discharging his shotgun during the robbery. Stewart’s aiding-and-abetting
responsibility for the guns brandished by Fomby and Moore was the basis for the second
firearm count, brought under § 924(c)(1)(A)(ii). In June 2007, the government returned
a superseding indictment charging the same four counts, but adding Stewart’s three
coconspirators. All four coconspirators were indicted on the first two counts. Stewart,
Fomby, and Moore, but not Scafe, were indicted under the two counts of using or
carrying a firearm during a crime of violence.

The trial was originally scheduled to begin on July 31, 2007. But Stewart’s
attorney filed an unopposed motion for a continuance approximately a week before the
start of trial, seeking to extend the trial date so that he would have the opportunity to
adequately prepare for Stewart’s complex case. The district court granted the motion
and rescheduled the trial for late October 2007 in order to “avoid a miscarriage of justice
by allowing the Defendant and counsel reasonable time necessary for effective
preparation.” Pursuant to the procedure set out in the court’s Pretrial Order, the court
No. 08-4268 United States v. Stewart Page 4

ordered Stewart’s counsel to file a document signed by Stewart showing that the
defendant consented to the continuance. Stewart never so consented. To the contrary,
Stewart points out in his reply brief that he wrote a letter dated September 2, 2007,
informing “the parties involved” that he did not give his attorney the authority to waive
his speedy-trial rights and that he did not consent to the continuance that was granted in
July. The court nevertheless declined to alter the rescheduled trial date.

In July 2007, Fomby and Moore pled guilty to counts two and four of the
Superseding Indictment, and Scafe pled guilty to count one of the Superseding
Indictment. The jury convicted Stewart in November 2007 on count one, with the
district court declaring a mistrial concerning the remaining charges. At retrial in June
2008, the jury convicted Stewart on all three of the remaining counts. Stewart was
sentenced three months later.

Scafe was sentenced in July 2008. He received 60 months in prison, to be
followed by 3 years of supervised release. Fomby and Moore were sentenced in August
2008. Fomby received 162 months in prison, to be followed by 3 years of supervised
release, and Moore was sentenced to 211 months in prison, to be followed by 3 years of
supervised release. Fomby, Moore, and Scafe each appealed their sentences. This court
dismissed all three appeals because these defendants had waived the right to appeal in
their plea agreements.

C. Stewart’s sentencing

In September 2008, the district court sentenced Stewart to 60 months in prison
on count one, 300 months in prison on count two, 420 months in prison on count three,
and 84 months in prison on count four. The sentences on counts one and two run
concurrently and the sentences on counts three and four run concurrently. But the total
of 300 months from counts one and two run consecutively with the total of 420 months
from counts three and four, amounting to a total of 720 months (60 years) in prison.
Stewart was also sentenced to three years of supervised release on each count, running
concurrently, and $16,833 in restitution, to be paid jointly and severally with Stewart’s
coconspirators to compensate the bank and the owner of the stolen getaway car.
No. 08-4268 United States v. Stewart Page 5

The district court made several factual findings, based on a preponderance of the
evidence, that factored into its sentencing decision. First, the court found that Stewart’s
actions constituted attempted first-degree murder. The court based this finding on its
conclusion that Stewart shot Washington without hesitation and at close range because
she was trying to push the emergency alarm button located under her desk, and that
Stewart either wanted to prevent her from pushing the alarm button, to punish her for
doing so, or to intimidate other bank employees. Alternatively, the court concluded,
Stewart’s actions constituted attempted first-degree murder because he shot Washington
in the course of the bank robbery. In reaching its final sentence, the court also
highlighted the preparation that went into the robbery, including the fact that the
coconspirators brought loaded weapons into the bank. The court also noted that
Stewart’s rechambering his shotgun after he shot Washington indicated his lack of any
remorse for his actions, and further showed that the shooting was not accidental.

As for Washington, the district court found that she suffered life-threatening and
permanent physical injuries as a result of Stewart’s actions. In addition, the court found
that only one firearm was discharged and that other firearms were brandished during the
robbery.

The sentencing calculation involved multiple steps. First, the district court
determined Stewart’s sentence under U.S. Sentencing Guidelines (U.S.S.G.) § 2B3.1,
the robbery Guideline. The court then concluded that, because Stewart attempted to
murder Washington, his actions called for an upward departure leading to a sentence in
accordance with the Guideline for assault with intent to commit murder. See U.S.S.G.
§ 2B3.1 cmt. n.5. Because Stewart attempted to commit first-degree murder and the
victim sustained permanent and life-threatening injuries, the final Guidelines range for
the charge of armed bank robbery was 210 to 262 months in prison.

The district court also concluded that, under the Guidelines, the first charge of
using or carrying a firearm during a crime of violence called for a 10-year sentence, to
run consecutively to the sentence for armed bank robbery. It then decided that the facts
of the case—“something pretty much out of Hollywood”—called for an upward variance
No. 08-4268 United States v. Stewart Page 6

beyond the Guidelines range. On this basis, the court sentenced Stewart to the statutory
maximum allowed for armed bank robbery—300 months in prison. Based on the
statutory range of 10 years to life in prison for the firearm charges, the court sentenced
Stewart to 420 months on the charge of using or carrying a firearm during a crime of
violence, to run consecutively with the 300 months assigned for armed bank robbery.
The total jail time in Stewart’s sentence amounts to 60 years in prison.

D. Stewart’s appeal

Stewart appeals his conviction on two grounds. First, Stewart contends that the
district court violated his speedy-trial rights when it improperly granted the motion for
a continuance filed by his attorney in July 2007. Stewart also challenges his conviction
on the basis of insufficient evidence, arguing that the proof submitted at trial does not
support the conclusion that he was one of the masked men who participated in the bank
robbery.

Finally, Stewart challenges his sentence on numerous grounds. He contends that
his conviction should be reversed because the district court inappropriately found facts
that contributed to its sentencing decision, double counted Washington’s injuries, did not
follow the proper sentencing methodology, imposed disparate sentences on Stewart and
his coconspirators, and ultimately reached a substantively unreasonable sentence.

II. ANALYSIS

A. Speedy-trial claim

Stewart claims that the district court violated his speedy-trial rights when it
granted the motion for a continuance filed by his attorney prior to the first trial. He
argues that the court did not properly consider the factors set out in the Speedy Trial Act
that are used to determine whether a continuance is warranted. But Stewart waived his
Speedy Trial Act claim by failing to raise it before his trial began. See United States v.
Brown, 498 F.3d 523, 529-30 (6th Cir. 2007) (holding, based on 18 U.S.C. § 3162(a)(2),
that a defendant waives a speedy-trial claim by not bringing that claim prior to trial).
Stewart responds by arguing that his September 2007 letter, which states that he did not
No. 08-4268 United States v. Stewart Page 7

give his attorney the authority to waive his right to a speedy trial, preserved the claim.
Stewart, however, does not point to any place in the record that mentions the letter, and
he offers no legal support for his claim that the letter should be treated as a motion to
dismiss. Moreover, even if Stewart did not waive his speedy-trial claim, his argument
has no merit.

The district court has wide latitude in deciding how to exercise its discretion in
applying the ends-of-justice provision of the Speedy Trial Act that governs whether a
continuance should be granted. United States v. Strickland, 342 F. App’x 103, 109-10
(6th Cir. 2009) (affirming the district court’s granting of a continuance under the abuse-
of-discretion standard of review). Delays due to continuances granted by the court are
excluded from the time within which a trial must start under the Speedy Trial Act if “the
ends of justice served by taking such action outweigh the best interest of the public and
the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A).

The trial court must state “in the record of the case, either orally or in writing, its
reasons for finding that the ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant in a speedy trial.” Id.
Stewart’s counsel filed a memorandum explaining why a continuance was warranted on
the basis of the factors set out in the Speedy Trial Act’s ends-of-justice provision. The
memorandum explained that Stewart’s defense was particularly complex and time
consuming because the various coconspirators were charged with different offenses,
Stewart had multiple defenses to his individual charges, different coconspirators were
likely to mount conflicting defenses, the charges against Stewart were of a very serious
nature, discovery was still ongoing, and Stewart’s attorney had to consider possible
pretrial motions. Stewart’s attorney also listed specific factual matters that were still in
need of development. The government did not oppose the motion.

In granting the motion, the district court properly considered the statute’s ends-
of-justice factors. The court also complied with the statutory requirement of explaining
on the record why the ends of justice supporting a continuance outweighed the best
interests of the public and of the defendant in having a speedy trial. In particular, the
No. 08-4268 United States v. Stewart Page 8

court recognized that Stewart’s counsel needed additional time to analyze the complex
issues involved in the case and to prepare Stewart’s defense.

Stewart also objects to the district court’s grant of a continuance because he
never provided his written consent, which was required by the district court’s Pretrial
Order and was specifically ordered when the court granted the motion. As the
government points out, however, such consent is not a statutory requirement under the
Speedy Trial Act. See id. And where an attorney seeks a continuance without the
client’s approval, this court has held that the Speedy Trial Act “does not require a
defendant’s consent to the continuance” in order for a judge to be able to grant a motion
in furtherance of the ends of justice. United States v. Sobh, 571 F.3d 600, 603 (6th Cir.
2009) (affirming the district court’s denial of the defendant’s claim based on the Speedy
Trial Act).

In fact, the statute even allows the district court to grant a continuance on its own
initiative if the interests of justice justify such a delay. 18 U.S.C. § 3161(h)(7)(A). So
even though Stewart did not provide his consent, the district court acted within its wide
range of discretion in deciding to grant the motion for a continuance that was filed by
Stewart’s attorney. See United States v. White, 985 F.2d 271, 275 n.1 (6th Cir. 1993)
(stating that even if the defendant had not waived his Speedy Trial Act claim, he still
“would not have prevailed, as his attorney consented to the delays”). Nor does Stewart’s
letter objecting to the continuance affect the court’s decision to grant the continuance
because the court ordered the continuance in July, but Stewart did not write his letter
until September.

Furthermore, in order to obtain a reversal of a conviction on the basis of a
violation of the Speedy Trial Act where a district court exercises its discretion to grant
a continuance for the ends of justice, a defendant must show “actual prejudice.” United
States v. Gardner, 488 F.3d 700, 718 (6th Cir. 2007) (refusing to overturn the
defendant’s conviction based on a violation of the Speedy Trial Act where the “period
of delay occasioned by the granting of [two of the defendants’] motions was
reasonable”). Stewart made no showing that the three-month delay that allowed his
No. 08-4268 United States v. Stewart Page 9

defense counsel adequate time to prepare for trial prejudiced Stewart’s defense. He
claims, however, that he was prejudiced by the fact that the delay afforded the
government more time to prepare its case against him, but he cites no authority
supporting this as a recognizable type of prejudice under the Speedy Trial Act. This
claim also fails on its own terms because Stewart was not convicted on all four counts
until his retrial in June 2008. He counters by arguing that, if not for the delay, he might
not have been convicted on the first count at his initial trial, in which case there might
not have been a second trial at all. But this highly speculative possibility does not lead
to the conclusion that the delay from July to October 2007 was the cause of Stewart’s
ultimate sentence and conviction in June 2008.

B. Sufficiency of the evidence for Stewart’s conviction

Stewart next argues that the jury was not presented with sufficient evidence to
sustain his conviction because the only direct evidence identifying Stewart as a
participant in the crime came from Stewart’s coconspirators. “When reviewing the
sufficiency of evidence in support of a jury verdict, this Court views the evidence in the
light most favorable to the prosecution and gives the prosecution the benefit of all
reasonable inferences from the testimony.” United States v. Abboud, 438 F.3d 554, 589
(6th Cir. 2006). A jury verdict is supported by sufficient evidence if “any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). “In sum, a
defendant claiming insufficiency of the evidence bears a very heavy burden.” Abboud,
438 F.3d at 589 (citation and internal quotation marks omitted).

Stewart argues that because both of his testifying coconspirators received
favorable treatment for cooperating with the government, the evidence at trial was not
sufficient for the jury to convict him. As the government points out, however, “[e]ven
the uncorroborated testimony of an accomplice may support a conviction.” United
States v. Owens, 426 F.3d 800, 808 (6th Cir. 2005) (citation and internal quotation marks
omitted) (finding the testimony of the defendant’s coconspirators to be a sufficient basis
for conviction). The fact that the coconspirators were “cooperating with the government
No. 08-4268 United States v. Stewart Page 10

as a result of a plea bargain” does not change the result. United States v. Welch, 97 F.3d
142, 149 (6th Cir. 1996) (holding that whether witnesses are cooperating with the
government is irrelevant to the sufficiency-of-the-evidence claim). Moreover, the
government put forth circumstantial evidence corroborating various elements of the
coconspirators’ testimony, thereby further supporting the case against Stewart.

The present case is distinguishable from United States v. Summers, 414 F.3d
1287 (10th Cir. 2005), cited by Stewart, in which the only evidence tying the defendant
to a bank robbery was the defendant’s presence with the perpetrators when they were
arrested, with no proof regarding the identity of an unknown person present at various
stages of the crime. Id., 414 F.3d at 1296. In contrast to the facts in Summers,
eyewitnesses in the present case testified to Stewart’s role in the crime and
circumstantial evidence corroborated their story. Stewart has thus failed to meet his
“very heavy burden” of showing that, based on the government’s evidence, no rational
juror could have found him guilty beyond a reasonable doubt. See Abboud, 438 F.3d at
589.

C. Sentencing

1. Standard of review

If a district court asks counsel “whether they have any objections to the sentence
just pronounced that have not previously been raised,” then sentencing objections raised
for the first time on appeal are reviewed under the plain-error standard. United States
v. Novales, 589 F.3d 310, 313 (6th Cir. 2009) (citation omitted). But if a court vaguely
asks whether the parties have anything more to add, such an inquiry has been found not
to give the parties sufficient opportunity to object to the sentence, and subsequent
objections are reviewed under a less deferential standard. Id. (holding that the question
“So is there anything else on these?” did not give the parties a sufficient warning of their
need to immediately raise any objections to the sentence).

After explaining the factors considered in reaching its sentencing decision, but
before declaring Stewart’s sentence, the district court here asked both sides whether
No. 08-4268 United States v. Stewart Page 11

there was “anything the Court has missed before I pass sentence,” to which both sides
responded in the negative. We need not decide whether the district court’s inquiry
constituted a sufficient opportunity for Stewart to object to his sentence because we
conclude that his sentence should be affirmed even under the normal standards of
review. The standard of review that applies to each of Stewart’s objections to his
sentence will be set out below.

2. Judicial factfinding

a. Judicial factfinding by a preponderance of the evidence

Stewart argues that the district court’s engaging in factfinding violated his Fifth
Amendment due process rights and his Sixth Amendment right to a jury trial. According
to Stewart, the court’s finding by a preponderance of the evidence that he committed
assault with intent to commit murder should not have contributed to the court’s departure
from the Guidelines sentencing range for armed bank robbery. Claims of improper
judicial factfinding are reviewed de novo. United States v. Roberge, 565 F.3d 1005,
1012 (6th Cir. 2009).

In making this argument, Stewart misstates the law concerning the permissibility
of judicial factfinding in sentencing decisions. The Supreme Court decided in Apprendi
v. New Jersey, 530 U.S. 466 (2000), and its progeny that judges may find facts by a
preponderance of the evidence so long as the resulting sentence does not “increase[] the
penalty for a crime beyond the prescribed statutory maximum” sentence allowed by the
jury’s verdict. See id., 530 U.S. at 490.

Provided that the sentence imposed is within the statutorily prescribed range
justified by the jury’s verdict, the possibility that the judicially found facts might also
constitute another separate offense is not per se a basis for objection. United States v.
Mayberry, 540 F.3d 506, 512, 516-17 (6th Cir. 2008) (approving the district court’s
determination that the defendant participated in an uncharged armed robbery because
judges may find facts by a preponderance of the evidence “so long as the sentence does
not exceed the statutory maximum” for the offense found by the jury). The district court
No. 08-4268 United States v. Stewart Page 12

in the present case did not exceed the maximum sentence allowed under Stewart’s four
counts of conviction. It thus properly found facts that influenced its sentencing decision.

b. Sufficiency of judicially found facts

Stewart also challenges the sufficiency of the district court’s factual finding that
he intended to kill Washington. But Stewart offers no explanation as to why the
evidence presented at trial does not support the court’s conclusion. “Issues adverted to
in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125
F.3d 989, 995-96 (6th Cir. 1997) (citation and brackets omitted) (holding that the
plaintiffs waived an argument about their alleged false arrest due to a lack of
development).

Moreover, even if Stewart had not waived his argument concerning the
sufficiency of the district court’s judicially found facts, there is no basis in the record to
overcome the heavy burden required to overturn the court’s factual findings made during
its sentencing decision. See United States v. Alford, 436 F.3d 677, 682 (6th Cir. 2006)
(reviewing judicial factfinding under the clearly erroneous standard of review). The
court explained in detail that its finding concerning Stewart’s intent to kill Washington
was based on Stewart having aimed his shotgun at Washington’s head at close range and
the court’s conclusion that Stewart was motivated by Washington’s attempt to push the
emergency alarm button. Alternatively, the court based its finding on the fact that
Stewart shot Washington during the course of the bank robbery. Based on this analysis,
the court concluded that

the evidence establishes by at least a preponderance of the evidence that
if Mr. Stewart were successful in his intent to kill Gwen Washington, it
would have constituted first degree murder under 18 U.S.C. § 1111,
because it would have been either willful, deliberate, malicious, and
premeditated or would have been a felony murder, that is, would have
constituted a murder committed in the perpetration of a robbery.
No. 08-4268 United States v. Stewart Page 13

The fact that Stewart, after shooting Washington in the head, “[c]almly ejected
the shell, racked another one, and was prepared to fire [again] if someone else didn’t
follow [his] instructions” also contributed to the district court’s finding that the shooting
was not an accident. This evidence and analysis convinces us that the district court did
not err in finding Stewart assaulted Washington with the intent to kill her.

3. Procedural reasonableness

a. Standard of review

Criminal sentences are reviewed for both substantive and procedural
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). When reviewing a district
court’s sentencing determination, we “first ensure that the district court committed no
significant procedural error.” Id. at 51. Both procedural and substantive reasonableness
are reviewed under the deferential abuse-of-discretion standard. United States v.
Novales, 589 F.3d 310, 314 (6th Cir. 2009).

“Procedural reasonableness requires that a district court must properly calculate
the Guidelines range, treat the guidelines as advisory, consider the § 3553(a) factors and
adequately explain the chosen sentence—including an explanation for any variance from
the guidelines range.” United States v. Presley, 547 F.3d 625, 629 (6th Cir. 2008)
(citation and internal quotation marks omitted). The court’s legal interpretation of the
Guidelines are reviewed de novo, but its factual findings are reviewed under the clearly-
erroneous standard. United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007). Although
the district court need not explicitly reference each of the factors set forth in 18 U.S.C.
§ 3553(a), there must be sufficient evidence in the record to affirmatively demonstrate
that the court gave each of them consideration. See United States v. Simmons, 501 F.3d
620, 625 (6th Cir. 2007). Moreover, the Supreme Court has made clear that, for
sentencing purposes, “[t]he appropriateness of brevity or length, conciseness or detail
. . . depends upon circumstances” that are left “to the judge’s own professional
judgment.” Rita v. United States, 551 U.S. 338, 356 (2007).
No. 08-4268 United States v. Stewart Page 14

b. Double counting

Stewart argues that the district court improperly double counted Washington’s
injuries by factoring those injuries into the sentencing equation twice. “Impermissible
double counting . . . renders a sentence procedurally unreasonable.” United States v.
Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (citation and internal quotation marks
omitted). The district court, to be sure, accounted for Washington’s injuries under both
the robbery Guideline and the assault-with-attempt-to-commit-murder Guideline. But
her injuries factored into Stewart’s sentence just once because the court’s six-level
enhancement based on her injuries under the robbery Guideline was rendered irrelevant
when the court subsequently departed from that Guideline in favor of the assault-with-
attempt-to-commit-murder Guideline.

The district court’s upward departure from the robbery Guideline to the
assault-with-intent-to-commit-murder Guideline was based solely on Stewart’s intent to
kill Washington, pursuant to Application Note 5 to Guideline § 2B3.1 (the robbery
Guideline). Application Note 5 states that “[i]f the defendant intended to murder the
victim, an upward departure [to the assault-with-intent-to-commit-murder Guideline]
may be warranted.” U.S.S.G. § 2B3.1 cmt. n.5. The court’s departure was thus
warranted regardless of whether Washington actually sustained any serious physical
injuries. In other words, the court could have departed to the assault-with-intent-to-
commit-murder Guideline without any consideration of Washington’s injuries under the
robbery Guideline. When the court proceeded to add an additional four offense levels
because of the victim’s permanent and life-threatening bodily injuries under Guideline
§ 2A2.1(b)(1)(A) (the assault-with-intent-to-commit-murder Guideline), the court was
therefore counting Washington’s injuries only once because the court’s prior
consideration of her injuries within the robbery Guideline was no longer accounted for
under the assault-with-intent-to-commit-murder Guideline.

Stewart does not raise on appeal the issue of whether the district court improperly
double counted various aspects of the crime when the court imposed an upward
sentencing variance for both the count of armed bank robbery and the count of using or
No. 08-4268 United States v. Stewart Page 15

carrying a firearm during a crime of violence. On the one hand, there is no double-
counting problem with imposing a consecutive sentence for a violation of 18 U.S.C.
§ 924(c) (dealing with using or carrying a firearm during a crime of violence) along with
a sentence for the underlying crime of violence referenced in § 924(c). This practice is
allowed because the “language of § 924(c) is plain. The statute mandates a five year,
mandatory, consecutive sentence ‘in addition to’ the punishment for the other crime of
violence.” United States v. Johnson, 22 F.3d 106, 108 (6th Cir. 1994) (holding that there
is no double-counting problem with § 924(c) because “Congress intended to impose
additional punishment for the same conduct”). Moreover, the practice of considering the
details of the crime in the context of both the armed bank robbery and the § 924(c)
violation is supported by the fact that the court may punish “criminal activity where that
activity has been considered at sentencing for a separate crime.” Witte v. United States,
515 U.S. 389, 398 (1995) (noting that the Court had correctly held in Williams v.
Oklahoma, 358 U.S. 576 (1959), that the district court did not err in accounting for the
defendant’s act of murder, for which he had already been convicted, in a subsequent
sentence for kidnapping (citing Williams, 358 U.S. at 585-86)).

But double-counting concerns still limit how 18 U.S.C. § 924(c) interacts with
the punishment for the underlying crime of violence. Where a defendant is charged with
a § 924(c) violation, the punishment for the underlying crime may not be enhanced for
brandishing a weapon because “[i]n such a case, a § 924(c) sentence and a brandishing
enhancement would be double counting.” United States v. Griffis, 282 F.3d 443, 446
(6th Cir. 2002) (holding that “a brandishing enhancement and § 924(c) count are not
cumulative punishment when assessed for separate offenses,” but do constitute
impermissible double counting where both are imposed for the same underlying offense).
Moreover, even though 18 U.S.C. § 924(c) allows for a maximum sentence of life in
prison, this court has recognized that such a sentence is “rarely, if ever, imposed.”
United States v. Harris, 397 F.3d 404, 412 (6th Cir. 2005) (citing Harris v. United
States, 536 U.S. 545, 578 n.4 (2002) (Thomas, J., dissenting)).
No. 08-4268 United States v. Stewart Page 16

The sentence imposed pursuant to § 924(c) will, in the vast majority of cases,
simply be the mandatory-minimum sentence called for by the statute. Harris, 536 U.S.
at 578 n.4. How double-counting principles should apply where a sentencing court
imposes a variance on both a § 924(c) sentence and also on the sentence that goes along
with the underlying crime of violence is thus unclear if both variances are based on the
same aspects of the crime. But because Stewart did not raise this objection concerning
the potential overlap between the district court’s upward variances for Stewart’s § 924(c)
violation and his armed-bank-robbery violation, we need not resolve this point of law
in the present case.

c. Distinguishing between an upward departure and a variance

Stewart also argues that the district court failed to clarify whether the sentence
imposed constitutes a departure or a variance from the Guidelines. Although a court’s
failure to distinguish between a departure and a variance might in some circumstances
affect the sentence’s procedural reasonableness, the court in the present case made no
such mistake. See United States v. Herrera-Zuniga, 571 F.3d 568, 588 n.11 (6th Cir.
2009) (suggesting that, in some situations, “the failure to explain the basis for a deviation
or an adjusted sentencing range might create confusion that itself rises to the level of
sentencing error”). In the present case, the court explicitly stated that its sentencing
increase above the Guidelines range constituted an “upward variance.” The court further
clarified that it was imposing a variance rather than a departure by citing Irizarry v.
United States, 553 U.S. 708 (2008), for the proposition that there was no need to give
notice prior to its sentencing deviation. See Irizarry, 553 U.S. at 713-14 (holding that
notice needs to be given for departures but not for variances). The court also explained
that it would identify possible Guidelines departures before deciding whether a non
Guidelines variance was appropriate. By carefully following this sentencing procedure,
the court made clear that its final sentencing enhancement constituted a variance from
the Guidelines rather than a departure.
No. 08-4268 United States v. Stewart Page 17

d. Explanation of sentencing methodology

More generally, Stewart challenges the district court’s alleged failure to explain
its sentencing methodology. But the court in fact set out and adhered to the proper
method of analysis used in sentencing decisions since United States v. Booker, 543 U.S.
220 (2005). The district court first correctly calculated Stewart’s Guidelines offense
level. It then decided that the nature of his crime warranted an upward departure within
the Guidelines framework. Finally, using the factors set forth in 18 U.S.C. § 3553(a),
the court imposed an upward variance beyond the Guidelines calculations, but kept this
variance within the statutorily prescribed sentencing range. The court’s sentencing
methodology was thus entirely appropriate.

4. Substantive reasonableness

After determining that the district court’s sentencing decision is procedurally
sound, we must “then consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard[,] . . . tak[ing] into account the totality of the
circumstances, including the extent of any variance from the Guidelines range.” Gall
v. United States, 552 U.S. 38, 51 (2007). We must give “due deference” to the district
court’s decision that the § 3553(a) factors justify a variance. Id. at 51. “A sentence may
be considered substantively unreasonable when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”
United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). “The fact that [this] court
might reasonably have concluded that a different sentence was appropriate is insufficient
to justify reversal of the district court.” Gall, 552 U.S. at 51.

a. Sentencing disparities

Stewart challenges the substantive reasonableness of his sentence based on the
disparities between the sentence that he received and those imposed on his
coconspirators. The United States Code instructs courts to “avoid unwarranted sentence
disparity among defendants with similar records who have been found guilty of similar
No. 08-4268 United States v. Stewart Page 18

conduct.” 18 U.S.C. § 3553(a)(6). Divergent sentences are justified, however, where
defendants “did not actually engage in the same conduct.” United States v. Vowell, 516
F.3d 503, 513 (6th Cir. 2008).

The district court explicitly addressed the issue of sentencing disparities and
accounted for its divergence in the present case by explaining that “Stewart has
separated himself from the rest of his codefendants by firing that shotgun at the back of
Ms. Washington’s head. To me, there is no comparison.” Moreover, the court noted the
coconspirators’ acceptance of responsibility and/or cooperation with authorities as
factors that it considered in each of their sentencings. Stewart, in contrast, did not
cooperate with the government or accept responsibility for his actions, and thus did not
warrant any leniency on these grounds.

He also argues that the disparity of applying the Guideline for assault with intent
to commit murder to him but not to his coconspirators “is fundamentally unfair and
violates his due process rights.” But the only authority that Stewart cites for this
proposition is a case noting the straightforward principle that sentencing disparities
based on the same underlying conduct are unwarranted. United States v. Sardin, 921
F.2d 1064, 1067 (10th Cir. 1990). Yet Sardin itself acknowledged that disparate
sentences may be upheld where the disparity is justified by distinguishing factors in the
record. Id. The district court in the present case determined that because Stewart, but
not his coconspirators, attempted to murder Washington, a harsher sentence was
warranted for Stewart than for his coconspirators. The court therefore did not abuse its
discretion when it sentenced Stewart more severely. And because Stewart does not
argue that he received a harsher sentence in comparison to others nationwide who have
been convicted of a similar offense, we need not address that issue.

b. Size of the variance

Finally, Stewart objects to the size of the district court’s upward variance, which
yielded a sentence approximately twice as high as that called for under the Guidelines.
A district court need not give “a mechanical recitation of the § 3553(a) factors,” but
rather must provide an explanation of why, based on the totality of the circumstances,
No. 08-4268 United States v. Stewart Page 19

it “chose the sentence that it did. And we have declared that the district court is entitled
to deference in its sentencing decisions because of its ringside perspective on the
sentencing hearing and its experience over time in sentencing other individuals.”
Vowell, 516 F.3d at 510 (citations and internal quotation marks omitted) (sentencing a
sex offender to 65 years in prison, which amounted to a 242 percent upward variance
over the Guidelines range).

In applying the § 3553(a) factors to Stewart’s case, the district court noted that
it “must look at just punishment, afford adequate deterrence, protect the public, reflect
the seriousness of the offense, and improve offender conduct and condition.” The
court’s determinations that Stewart’s actions were tantamount to attempted first-degree
murder, that Stewart felt no immediate remorse for his conduct, and that what he did had
such a severe impact on Washington and the other victims, properly influenced its
sentencing decision. It also conducted a detailed examination of Stewart’s personal
history and characteristics before deciding what sentence to impose. In sum, the court
considered the various § 3553(a) factors and made its final sentencing decision based on
the totality of the circumstances.

The size of the district court’s variance from the Guidelines also satisfies the
principle that “a major departure should be supported by a more significant justification
than a minor one.” Gall, 552 U.S. at 50. As the court noted, if Stewart “had been
successful in his intent, Ms. Washington would have been dead . . . . This is a serious
offense, and anything more serious would be if Ms. Washington had died.” The court
also emphasized that Stewart did not feel any immediate remorse or regret about
shooting Washington.

Finally, Stewart’s sentence satisfies the principle that high sentences should
“preserve reasoned distinctions among offenders” by leaving room for more severe
offenders to receive harsher punishments. United States v. Poynter, 495 F.3d 349, 355
(6th Cir. 2007) (vacating a statutory maximum sentence imposed on a sex offender
because the extreme deviation from the Guidelines did not leave room to distinguish
between the defendant and worse sex offenders). The district court went to great lengths
No. 08-4268 United States v. Stewart Page 20

to explain that short of Washington having died, the court could not think of a more
serious situation than what was presented in this case. Under these circumstances, the
court did not abuse its discretion by sentencing Stewart to 25 years in prison on the
armed-robbery count and to 35 years on one of the firearm counts.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district
court.