United States v. Vonner
Full Opinion (html_with_citations)
SUTTON, J., delivered the opinion of the court, in which BOGGS, C.J., SILER, BATCHELDER, GIBBONS, ROGERS, COOK, McKEAGUE, and GRIFFIN, JJ., joined. MARTIN, J. (pp. 392-95), delivered a separate dissenting opinion, in which COLE and CLAY, JJ., joined.
OPINION
Alvin Vonner argues that his 117-month sentence violates the Sixth Amendment and is unreasonable. We disagree because (1) district courts may, consistent with the Sixth Amendment, find sentencing facts in applying the now-advisory sentencing guidelines, (2) Vonner forfeited his argument that the district court failed adequately to explain its rejection of his arguments for leniency and cannot show plain error and (3) his within-guidelines sentence is reasonable.
I.
Less than three months after completing a prison sentence for second-degree murder, Alvin Vonner sold crack cocaine to a government informant on two separate occasions. A grand jury indicted Vonner for distributing at least five grams of cocaine base, see 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), after which, consistent with the terms of a plea agreement between Vonner and the government, he pleaded guilty.
The presentence report calculated Von-ner’s criminal history category (III) and his offense level (29), which intersected at an advisory guidelines range of 108 to 135 months. Vonner did not object to the report.
At the sentencing hearing, which took place three weeks after the Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Vonner sought a downward variance based on (1) the mental and emotional trauma he suffered from a “neglect[ed]” and “abus[ive]” childhood, (2) “the nature and the length of [his] Pre-Sentence confinement,” which lasted fourteen months, (3) his “assistance to the Government” and (4) the circumstances surrounding his cocaine sales. Vonner also argued that the court, by increasing the guidelines range based on a drug quantity never proved beyond a reasonable doubt to a jury or admitted by him, violated the Sixth Amendment.
After listening to these arguments and after hearing the government’s response, the court told Vonner that it “appreciate^] the apology [he] offered this morning,” and it “encouraged” him to continue to cooperate with the government and to dedicate his prison time to learning “certain life skills and lifestyles that will be of benefit to [him] when [his] period of incarceration is over.” “[C]onsider[ing] the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. § ] 3553(a),” the court sentenced Vonner to 117 months. The court also recommended that Vonner receive substance-abuse treatment in prison, and it waived Vonner’s fine due to his inability to pay it. After announcing the sentence, the court asked Vonner’s counsel whether “the defendant [has] any objection to the sentence just pronounced not previously raised.” Von-ner’s counsel responded, “No, Your Hon- or.”
II.
Vonner first argues that his sentence violates the Sixth Amendment because it was based on facts he never admitted and no jury ever found beyond a reasonable doubt. He is wrong for two
III.
Vonner next argues that the district court failed to explain in sufficient detail why it rejected some of his arguments for a downward variance. At a sentencing hearing, as at every other phase of a criminal proceeding, each party has a duty to object to rulings by a court in order to preserve them for appeal. “A party,” the Criminal Rules say, “may preserve a claim of error by informing the court — when the court ruling or order is made or sought — of the action the party wishes the court to take, or the party’s objection to the court’s action and the grounds for that objection.” Fed. R.Crim.P. 51(b). “If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” Id. A party who neglects to make an objection, even after being given “an opportunity” to do so, forfeits the argument and may obtain relief on appeal only if the error is “plain” and “affects substantial rights.” Fed. R.Crim.P. 52(b).
In United States v. Bostic, 371 F.3d 865 (6th Cir.2004), we wrestled with the difficulty of “parsing a [sentencing] transcript to determine whether ... a party had a meaningful opportunity to object” and of determining whether plain-error review should apply. Id. at 873 n. 6. In an effort to bring some clarity to the matter and to ensure that plain-error review applied only when the parties fairly were given a chance to object to the sentencing procedure, Bostic suggested that district courts, after announcing a proposed sentence, “ask the parties whether they have any objections to the sentence ... that have not previously been raised.” Id. at 872. If a sentencing judge asks this question and if the relevant party does not object, then plain-error review applies on appeal to those arguments not preserved in the district court. Id. at 872-73. In adopting this approach, Bostic reasoned that it would give the prosecution and defense alike an opportunity to articulate “any objection and the grounds therefor”; it would “aid the district court in correcting any error” and allow it to do so “on the spot”; and it would facilitate the appellate process by highlighting “precisely which objections have been preserved.” Id. at 873 (internal quotation marks omitted).
We have applied Bostic to sentencing appeals before Booker, and we have done so since Booker in numerous published and unpublished cases. See United States v. Brogdon, 503 F.3d 555, 562-63 (6th Cir.2007); United States v. Brock, 501 F.3d 762, 773 (6th Cir.2007); United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir.2007); United States v. Caver, 470 F.3d 220, 235 (6th Cir.2006); see also United States v. Key, No. 05-6277, 256 Fed.Appx. 775, 780, 2007 WL 4293456, at *5 (6th Cir. Dec.6, 2007); United States v. Darden, No. 06-1767, 253 Fed.Appx. 568, 569-70, 2007 WL 3329454, at *2 (6th Cir. Nov.7, 2007); United States v. Muse, 250 Fed.Appx. 700, 702 (6th Cir.2007); United States v. Grant, 247 Fed.Appx. 749, 752-53 (6th Cir.2007); United States v. Scadin, 246 Fed.Appx. 319, 320-21 (6th Cir.2007); United States v. Bowden, 240 Fed.Appx. 56, 58-59 (6th Cir.2007); United States v. Wilson, 232 Fed.Appx. 540, 545 (6th Cir.2007); United
Bostic governs Vonner’s claim that the district court failed to explain fully why it rejected some of his requests for leniency. After announcing the proposed sentence, the court asked each party whether it “ha[d] any objection to the sentence just pronounced not previously raised.” “No, Your Honor,” Vonner’s counsel responded. While this answer did not undermine Von-ner’s right to appeal issues he had “previously raised,” it did undermine his right to challenge the adequacy of the court’s explanation for the sentence — an issue that became apparent as soon as the court finished announcing its proposed sentence and that counsel nonetheless declined the court’s invitation to address. Bostic, 371 F.3d at 872-73.
Under Bostic, we review this challenge for plain error, which requires Vonner to show (1) error (2) that “was obvious or clear,” (3) that “affected defendant’s substantial rights” and (4) that “affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th Cir.2006) (internal quotation marks omitted). “[Ojnly in exceptional circumstances” will we find such error — only, we have said, “where the error is so plain that the trial judge ... [was] derelict in countenancing it.” Id. (internal quotation marks omitted).
At the sentencing hearing, Vonner asked for a downward variance on four grounds: (1) his “neglect[ed]” and “abus[ive]” childhood; (2) his 14-month presentence confinement; (3) his “assistance ’ to the Government”; and (4) the circumstances surrounding his cocaine sales. The court told Vonner, among other things, that it “appreciated] the apology [he] offered this morning,” and it “encouraged” him to continue to cooperate with the government and to dedicate his prison time to learning “certain life skills and lifestyles that will be of benefit to [him] when [his] period of incarceration is over.” It then said that it had “considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. § ] 3553(a),” and imposed a 117-month sentence.
No one would call this explanation ideal. It did not specifically address all of Von-ner’s arguments for leniency, and it thus failed to ensure that the defendant, the public and, if necessary, the court of appeals understood why the trial court picked the sentence it did. Whether through an oral sentencing decision or a written sentencing memorandum, a trial court would do well to say more — not because it necessarily must on pain of reversal but because a court is more likely to advance the goals of sentencing if it clearly explains to the defendant why the court denied his request for leniency. See Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007) (“[0]f-ten at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.”). A
In fairness to the district court, it sentenced Vonner just three weeks after the Court decided Booker — at a time when district and appellate courts around the country were grappling with the implementation of this new system of sentencing. For this reason and for the reason that plain-error review gives us another, more straightforward way to handle this appeal, we need not address the first step of plain-error review: Did the court err?
Whether the court’s brief explanation for this sentence sufficed or not, any potential error was not “plain.” Although Congress requires a court to give “the reasons” for its sentence, 18 U.S.C. § 3553(c), it does not say that courts must give the reasons for rejecting any and all arguments by the parties for alternative sentences. The statute also distinguishes between within-guidelines sentences like this one and outside-guidelines sentences, requiring judges to give “the specific reason” for imposing an outside-guidelines sentence, 18 U.S.C. § 3553(c)(2), but imposing no similar requirement for within-guidelines sentences. (Section 3553(c)(1), it is true, requires district court judges to explain why they sentence individuals at a certain point within guidelines ranges that exceed 24 months. While Vonner’s guidelines range of 108 to 135 months exceeds 24 months, Vonner did not raise this argument on appeal or for that matter argue below (or on appeal) for anything but a freiow-guidelines sentence.)
Consistent with the statute, Rita also suggests a distinction between within- and outside-guidelines sentences, saying that, where a judge imposes a within-guidelines sentence, he “will normally ... explain why he has rejected ... arguments” for a different sentence, but insisting that, “[wjhere the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.” Rita, 127 S.Ct. at 2468 (emphases added). At the same time that the Court encourages district court judges to give “reasoned” explanations for all sentencing decisions (as indeed do we), it confirms that “[t]he law leaves much, in this respect, to the judge’s own professional judgment.” Id. “The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not.” Id.
That flexibility is particularly relevant when the district court agrees with the Sentencing Commission’s recommendations. “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation” because “[cjircum-stances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case.” Id.; see also id. at 2469 (“Where a matter is ... conceptually simple ... and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.”). In this setting, the question is whether “[t]he record makes clear that the sentencing judge listened to each argument,” “considered the supporting evidence,” was “fully aware” of the defendant’s circumstances and took “them into account” in sentencing him. Id. at 2469.
Vonner’s arguments were conceptually straightforward, and the district court imposed a within-guidelines sentence. Nothing in the “record,” or the “context” of the hearing, suggests that the court did not “listen! ]” to, “consider[ ]” and understand every argument Vonner made. Rita, 127 S.Ct. at 2469. On this record, we cannot say that any error was so plain or obvious that the judge was “derelict in countenancing it.” Gardiner, 463 F.3d at 459 (internal quotation marks omitted).
Vonner resists this conclusion on the ground that Rule 32 of the Federal Rules of Criminal Procedure required the district court to address his arguments for a lower sentence more thoroughly. “At sentencing,” Rule 32(i)(3)(B) says, “the court must — for any disputed portion of the pre-sentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” Fed.R.Crim.P. 32(i)(3)(B).
As Vonner sees it, his leniency arguments amounted to “controverted matters]” under the rule, requiring the district court to address each of them more fully. But plain-error review applies to this argument as well because he did not raise it below, even after the district court gave him an opportunity to do so. He cannot show any error, much less plain error.
Rule 32(i)(3)(B) says that the court “must ... rule” on these arguments, not that the court must give a lengthy explanation for its ruling, and the court did “rule” on these arguments by declining to give Vonner a lower sentence. In addition, as the Eleventh Circuit recently explained in rejecting a similar claim, “[c]ontroverted” matters refer to those that are “dispute[d] or oppose[d] by reasoning.” United States v. Lopez, 215 Fed.Appx. 863, 867 (11th Cir.2007) (per curiam) (quoting Webster’s Collegiate Dictionary 252 (10th ed.1993)). Here, the government did not dispute that Vonner had a rough childhood or that he had cooperated with the investigation. Vonner recognized as much in his initial brief. See Br. at 10 (“It is undisputed that Mr. Vonner suffered abuse, abandonment, violence, neglect, and trauma as a young child.”); id. at 16-17. Nor did the government dispute the circumstances surrounding Vonner’s offense or the nature and length of Vonner’s presentence confine
In closing, it bears emphasizing that there is a sizeable gap between good sentencing practices and reversibly bad sentencing practices. As was true in Rita, so it is true here: The judge “might have added explicitly that he had heard and considered” Vonner’s “evidence and argument[s]” for a lower sentence; that “he thought the Commission in the Guidelines had determined a sentence that was proper in the minerun of roughly similar ... eases; and that he found that [the] circumstances here were simply not different enough to warrant a different sentence.” 127 S.Ct. at 2469. All of this would have left little room for curiosity or doubt as to the court’s method of sentencing and almost assuredly would have assisted us in handling challenges to the length of the sentence — to which we now turn.
IV.
Vonner also challenges the reasonableness of the length of his sentence, urging us to abandon the presumption of reasonableness for within-guidelines sentences and arguing that his sentence is unduly long. Plain-error review, as an initial matter, does not apply to either argument, even though the court asked Vonner’s counsel at sentencing whether he had any objections not previously raised and even though counsel did not mention these two arguments. A litigant has no duty to object to the “reasonableness” of the length of a sentence (or to the presumption of reasonableness) during a sentencing hearing, just a duty to explain the grounds for leniency. That is because reasonableness is the standard of appellate review, not the standard a district court uses in imposing a sentence. See id. at 2465.
In United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006), this court embraced an appellate presumption of reasonableness for within-guidelines sentences. In Rita, the Court upheld the presumption. 127 S.Ct. at 2462. Rita, we recognize, does not hold that appellate courts must embrace the presumption. See id. at 2462, 2467; see also Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). But we see no good reason to abandon the presumption now — after using it for some time and after being told that we may continue to use it. The presumption, as the Supreme Court has explained, rests on sound reasoning. The guidelines represent the Sentencing Commission’s attempt to reconcile the same § 3553(a) factors that district courts must consider in sentencing defendants. See Rita, 127 S.Ct. at 2463-64. These factors seek to balance Congress’s competing interests in consistency, see § 3553(a)(4)-(6) (requiring sentencing courts to consider the guidelines, pertinent policy statements and “the need to avoid unwarranted sentencing disparities”), and in individualized sentencing, see § 3553(a)(1)-(3), (7) (requiring sentencing courts to consider “the nature and circumstances” of the crime and the defendant, the purposes of punishment and the types of punishment available). And, perhaps most importantly, when there is a confluence between the national views of the Sentencing Commission and the independent views of a sentencing judge, that “double determination significantly increases the likelihood that the sentence is a reasonable one.” Rita, 127 S.Ct. at 2463. Add to this the reality that the presumption is rebuttable, id., and that there is no
Vonner has not rebutted the presumption here. While Vonner had a “rather poor childhood,” the district court had ample bases to conclude that he emerged from that childhood as a risk to society. Because Vonner committed murder at the age of 18, engaged in an assault shortly after his release from prison and turned to peddling drugs within three months of leaving prison, the district court could fairly conclude that the need for public protection and the risk of recidivism were great while the immediate prospects for rehabilitation were not promising. That Vonner sought to justify his drug dealing on the ground that he had no other means of earning a living after being released from jail does not show that the trial court abused its discretion; the court could still have legitimately concluded that he never took advantage of the educational opportunities offered to him before, during and after serving his sentence for second-degree murder.
On this record, we cannot say that the district court’s 117-month sentence — a sentence in the bottom half of the guidelines range- — was unreasonably long. The district court judge, unlike the members of this court, had an opportunity to hear from the defendant firsthand. It then “considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. § ] 3553(a).” The record and the context of the sentencing hearing offer ample reasons for concluding that Von-ner’s case was a “typical” one and therefore deserving of a within-guidelines sentence, id. at 2468, and that his criminal history and his decision to violate serious criminal laws soon after serving a sentence for second-degree murder outweighed his arguments in favor of leniency. “[W]e simply cannot say that [Vonner’s] special circumstances are special enough that, in light of § 3553(a), they require a sentence lower than the sentence the Guidelines provide.” Id. at 2470 (emphasis added).
V.
Contrary to the contention of some of the dissents, neither the defense nor the government, in response to the Bostic question, has any obligation to raise objections already made. The point of the question is not to require counsel to repeat objections or, worse, to undo previously raised objections. It is simply to give counsel one last chance to preserve objections for appeal that counsel has not yet seen fit to raise or has not yet had an opportunity to raise. Because counsel for both parties at that point in the proceeding customarily will have raised the traditional sentencing arguments — objections, say, to the presentence report or reasons for obtaining a departure or variance — the import of the Bostic question is that it gives counsel a chance to ask the sentencing judge for clarifications about the proposed sentence it just announced. As best we can tell from our cases applying Bostic, the rule is thus apt to be relevant in three principal settings — where it is unclear whether the district court, in announcing its proposed sentence, considered all of the § 3553(a) factors, adequately explained its reasons for imposing the sentence or adequately addressed the parties’ sentencing arguments.
To say that Bostic does not apply in these settings is not to clarify the decision but to abandon it. We are not prepared to do that. No party has argued in its appellate briefs that Bostic should be overruled.
No one, moreover, can fairly challenge a sensible and useful feature of Bostic. Many of our post-Booker sentencing appeals deal with adequacy-of-explanation questions, and Bostic has the salutary effect of encouraging the resolution of those issues at the sentencing hearing — when they matter most and when they can be most readily resolved. Criminal sentencing is a serious business, and we should encourage district court judges to adopt sentencing practices that resolve potential sentencing disputes at the hearing, not on appeal.
No doubt, we could encourage district courts to ask the Bostic question without imposing any consequences on a party’s failure to answer it. But that would undermine its effectiveness. Better, we think, to leaven the rule with a commonsense application of the plain-error doctrine and with an eye to the realities of the facts and circumstances of each sentencing proceeding. And if that does not work, we of course have the right to reconsider the application of the rule in a future case. As for this case, we have little difficulty concluding that Bostic should apply. At this sentencing hearing, not only were Bostic and the reason-giving duties at sentencing pre-existing requirements of which counsel for both parties had every reason to know, but this also was a classically “mine run,” within-guidelines case. Rita, 127 S.Ct. at 2465. And if it was not, that was only because Vonner had a real risk of obtaining an upward variance in view of his assault and two cocaine sales within three months of leaving prison on a murder charge.
Nor is it the case that a request for a variance in the district court by itself preserves all procedural and substantive challenges to a sentence. Here we have a disagreement not about Bostic but about Criminal Rule 51. Nothing about Booker suspends the obligation of counsel at a criminal proceeding to “preserve a claim of error” for appeal. Fed.R.Crim.P. 51(b). That counsel need not register a complaint with the district court that the proposed sentence is “unreasonable” follows from the fact that the district court’s job is to impose a sentence “sufficient, but not greater than necessary” to comply with the § 3553(a) factors, not to impose a “reasonable” sentence. But that reality does not excuse counsel from the obligation to raise all arguments concerning the appropriate procedures at sentencing and the bases for a lower or higher sentence.
Two examples illustrate the point. If, under the heading of “substantive reasonableness,” a defendant argued on appeal that the length of his sentence was too long because it did not account for the fact
These fair-minded debates should not obscure a broader point. Since Booker, the Supreme Court has handed down three cases about appellate review of challenges to the lengths of criminal sentences and the processes for determining them. See Rita, 127 S.Ct. at 2470; Gall, 128 S.Ct. at 602; Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 576, 169 L.Ed.2d 481 (2007). One theme runs through all three cases: Booker empowered district courts, not appellate courts and not the Sentencing Commission. Talk of presumptions, plain error and procedural and substantive rules of review means nothing if it does not account for the central reality that Booker breathes life into the authority of district court judges to engage in individualized sentencing within reason in applying the § 3553(a) factors to the criminal defendants that come before them. If there is a pattern that emerges from Rita, Gall and Kimbrough, it is that the district court judges were vindicated in all three cases, and a court of appeals was affirmed just once — and that of course was when it deferred to the on-the-scene judgment of the district court. Our affirmance in today’s case respects the central lesson from these decisions — that district courts have considerable discretion in this area and thus deserve the benefit of the doubt when we review their sentences and the reasons given for them.
VI.
For these reasons, we affirm.