US v. John Cottrell, II, No. 09-5001 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5001 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JOHN LEWIS COTTRELL, II, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:09-cr-00005-jpj-pms-3) Submitted: July 15, 2010 Decided: July 26, 2010 Before WILKINSON, MOTZ, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender for the Western District of Virginia, Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Lewis Cottrell, II, was charged with one count of conspiracy to possess with intent to distribute and to distribute oxycodone, in violation of 21 U.S.C. § 846 (2006), and two counts of possession with intent to distribute and distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1) (2006). Cottrell pled guilty to all three sentenced to 180 months of imprisonment. charges and was He now appeals; for the following reasons, we affirm. After Cottrell s arrest on the charges to which he eventually pled guilty, Cottrell was released on an unsecured bond, with the condition that he not violate federal, state, or local law. A few months after his release, Cottrell was arrested and charged with grand larceny in Virginia state court. As a result, the district court ordered the bond be forfeited in part, and Cottrell returned to the custody of the Attorney General for confinement. The Cottrell s quantity offense presentence guilty pleas involved level in was Guidelines Manual determined that report ( PSR ) concluded that, his offense twenty-eight, ( USSG ) because based conduct, pursuant § 2D1.1(c)(6) Cottrell prepared had to following on the drug Cottrell s base U.S. Sentencing (2008). committed The a PSR criminal offense while on bond, he was not entitled to an acceptance of 2 responsibility reduction, even though he had admitted to the charged conduct and cooperated with the probation officer during the preparation of the PSR. Thus, Cottrell s total offense level was twenty-eight. However, the PSR also determined that Cottrell could be sentenced as a career offender, pursuant to USSG § 4B1.1, because of his prior felony convictions, for a total offense level of thirty-four. In calculating Cottrell s criminal history, the PSR noted his several juvenile convictions, none of which earned him criminal history points. Based on his adult convictions, the PSR determined that Cottrell s criminal history criminal history category was VI. Accordingly, the PSR concluded that if the court agreed that Cottrell was a career offender, his Guidelines range for imprisonment would be 262 to 327 months, pursuant to USSG ch. 5, pt. A (sentencing table). The PSR also noted that, in the event the court determined that Cottrell was not a career offender, there were potential grounds for an upward departure based on Cottrell s prior convictions. At sentencing, the court determined that Cottrell was not entitled to the acceptance of responsibility reduction because, although he had pled guilty and admitted his conduct, he had committed a criminal violation while on bond. However, the court sustained Cottrell s objection regarding the career offender designation, finding that his prior adult conviction 3 for possession of marijuana while in custody did not constitute a controlled § 4B1.2. substance offense within the meaning of USSG As a result, the court found Cottrell s total offense level to be twenty-eight, with a resulting Guidelines range of 140 to 175 months. above the Nonetheless, the court sentenced Cottrell Guidelines specifically noting range to Cottrell s 180 months lengthy of imprisonment, criminal history, the seriousness of his offense, the need for deterrence, and the need to protect the public. The court reiterated these factors in its written statement of reasons. On appeal, Cottrell challenges the reasonableness of his sentence on three grounds, arguing: (1) that the district court s failure to issue a sufficient written statement explaining the upward departure/variance constitutes procedural error ; (2) the district court s upward departure/variance was procedurally and substantively unreasonable given that one of the explained criminal bases history was for a the departure defendant s factor that the juvenile empirically based criminal history guidelines disregarded and where there was no reason given district for court responsibility uncontradicted rejecting erred when reduction, [sic] Guidelines it in expression denied light of policy; the of remorse, and (3) the acceptance of Mr. Cottrell s his coordinated state and federal guilty pleas, and because the district court 4 relied upon improper factors (criminal history and juvenile history) as a basis for denial. When the procedural and substantive reasonableness of a sentence is challenged on appeal, this court sentence using an abuse of discretion standard. United States, 552 U.S. 38, 51 (2007). reviews the See Gall v. Procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines range. Id. We first address Cottrell s argument that the district court committed procedural error when it failed to give him an acceptance of responsibility reduction. Under USSG § 3E1.1, if a defendant clearly demonstrates acceptance of responsibility for his offense, his offense level is decreased by two levels. The commentary to § 3E1.1 lists a number of factors that may be considered in making this determination, including admitting the offense USSG conduct § 3E1.1 and cmt. voluntarily n.1. While terminating the criminal commentary conduct. explains that [e]ntry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely 5 denying any additional accountable . . acceptance of . relevant will conduct constitute responsibility, it for which significant also he is evidence of states that this evidence may be outweighed by conduct of the defendant that is inconsistent with § 3E1.1 cmt. n.3. such acceptance of responsibility. USSG Moreover, [a] defendant who enters a guilty plea is not entitled to an adjustment . . . as a matter of right. Id. sentencing The commentary also explains that because [t]he judge defendant s is in a acceptance unique of position to responsibility, evaluate the a judge s determination on this reduction is entitled to great deference on review. USSG § 3E1.1 cmt. n.5. district court s Accordingly, we review a decision acceptance-of-responsibility concerning adjustment for clear an error. United States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007). Here, Cottrell argues that because he committed the additional state violation prior to entry of his guilty plea and not after, reduction. considered acceptance. the district Moreover, his court he criminal should asserts that disposition as have the a granted court reason him the improperly for denying However, we have previously held that continued criminal conduct following indictment is a sufficient reason for denying a reduction for acceptance of responsibility. See Dugger, 485 F.3d at 240 (finding the district court did not err 6 in denying the reduction where defendant engaged in criminal activity following admitted to all indictment, though defendant later conduct); criminal even United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993) (affirming the denial of the acceptance of responsibility reduction where defendant committed criminal activity defendant later while entered on a pretrial guilty release, plea, even admitted conduct, and cooperated with his probation officer). though relevant Moreover, although the district court did note when denying the reduction that Cottrell had a long criminal history, the court relied on the fact that he engaged in serious criminal conduct after the charges. history The court only in responsibility and contrition. ommitted). highlighted explaining was Cottrell s that merely he going through prior criminal not accepted had the motions of Dugger, 485 F.3d at 241 (internal quotation marks Accordingly, we hold that the district court did not clearly err in denying Cottrell a reduction for acceptance of responsibility. Next, Cottrell challenges the district court s written explanation of his sentence, arguing that the court failed to provide a sufficient written explanation as required by 18 U.S.C.A. § 3553(c)(2) (West, Westlaw through P.L. 111-190). Cottrell asserts that the court not only failed to fulfill the written requirement, but also failed to sufficiently explain 7 how the controlling sufficiently account characteristic. separate criminal claim for history scoring defendant s did not history and He further asserts in this claim and in a that the district court s reference to his criminal conduct while age 15 . . . was a factor which the guidelines dictated not be counted given the scoring rules applicable to juvenile convictions, and if the court disagreed with this detail. it needed to explain its policy disagreement in In his reply brief, Cottrell also argues that despite the language used by the district court, the increase in his sentence was a departure, not a variance, and should be reviewed as such on appeal. When a district court sentences a defendant outside of the established Guidelines range, § 3553(c)(2) requires the court to state in open court the reasons for its imposition of the particular sentence, and the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form. In evaluating the sentencing court s explanation of a selected sentence, this court has consistently held that, while a district court must consider the statutory factors and explain its sentence, it need not explicitly reference § 3553(a) or discuss every factor on the record. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). 8 United States v. At the same time, however, the district court must make assessment based on the facts presented. an individualized Gall, 552 U.S. at 50; see also Rita v. United States, 551 U.S. 338, 356-57 (2007). The reasons sentence articulated need not be by the couched district in the court precise for a given language of § 3553(a), so long as the reasons can be matched to a factor appropriate for consideration . . . [defendant s] particular situation. and clearly tied to United States v. Moulden, 478 F.3d 652, 658 (4th Cir. 2007). In United States v. Carter, 564 F.3d 325 (4th Cir. 2009), we further explained that while the individualized assessment [of each defendant] need not be elaborate or lengthy, . . . it must provide a rationale tailored to the particular case at hand and [be] adequate to permit meaningful appellate review. Id. at 330 (internal quotation marks omitted). Thus, a conclusory statement that a specific sentence is the proper one does not satisfy the district court s responsibilities. at 328-29. Id. In addition, we cannot presume that the district court adopted the arguments of one of the parties while imposing sentence; an appellate court s rationale. Here, court may not guess at the district Id. at 329-30. the district court provided explanation prior to sentencing Cottrell. an extensive Having recognized the Guidelines range was 140 to 175 months, the court explained that 9 it had to impose a sentence that was not greater than necessary to satisfy extensive § 3553(a). criminal The history, court which acknowledged began at age Cottrell s fifteen and continued until, and even after, his arrest for the underlying offense at the age of twenty-six. need for a sentence that would The court highlighted the deter Cottrell from criminal activity, as his prior sentences and periods of probation had had no deterrent effect. The court also explained that Cottrell s offenses had been serious, and that even after being arrested on federal charges he committed a felony while on bond. The court stated that Cottrell s actions indicated that he had little intention of changing his behavior or becoming a law abiding, productive member of society. Although the court acknowledged the arguments made by Cottrell s counsel, it found that Cottrell s past indicated that he would be a danger to society when released, and that the nature and circumstances of the offense, as well as in particular the history and characteristics of [Cottrell], warranted a sentence above the Guidelines range [Cottrell s] in crime crimes by him. order and to to reflect protect the the seriousness public from of further Accordingly, the court imposed a sentence of 180 months. Despite Cottrell s contentions, we conclude the district court s sentence constituted a variance from Cottrell s 10 Guidelines range rather than a departure. * We further conclude that the court adequately explained the rationale for the chosen sentence, both orally and in writing. Here, the district court expressly relied on the § 3553(a) factors in sentencing Cottrell and in explaining the above-Guidelines sentence, focusing on Cottrell s history and characteristics, and the need for the sentence to deter criminal conduct and protect the public. court again noted above-Guidelines that it sentence was based In the written statement, the sentencing on the Cottrell § 3553(a) to an factors, specifically the nature and circumstances of the offense and the history and characteristics of the defendant, protect the public from further crimes by Cottrell. and to The court also noted Cottrell s high likelihood of recidivism based on his prior criminal conduct. Cottrell s juvenile To the extent that the court referenced convictions, it did so only in terms of explaining the sentence pursuant to the § 3553(a)(1) factor of the history and characteristics of the defendant. * The court did The Supreme Court in Irizarry v. United States, 553 U.S. 708, ___, 128 S. Ct. 2198, 2202-03 (2008), explained that the terms variance and departure are distinct. A departure is a term of art under the Guidelines and refers only to nonGuidelines sentences imposed under the framework set out in the Guidelines. Id. at 2202. A variance, on the other hand, is a non-Guidelines sentence justified under the sentencing factors set forth in 18 U.S.C. § 3553(a). Id. at 2203. 11 not use these convictions to calculate Cottrell s criminal history because the increased sentence was, as noted, based on a variance and not a departure. Accordingly, we hold that the court properly relied on the § 3553(a) factors to explain the sentence and variance, both at the sentencing hearing and in the written statement of reasons. Thus, there was no procedural error by the court in its explanation of Cottrell s sentence. Accordingly, sentence. legal before affirm Cottrell s conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 12

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