United States v. Corey Lamont Lanier

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 3, 2023
• Docket: 21-5619
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0356n.06

Case No. 21-5619

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 03, 2023 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff - Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE MIDDLE DISTRICT OF COREY LAMONT LANIER, ) TENNESSEE ) Defendant - Appellant. ) OPINION )

Before: GIBBONS, BUSH, and MATHIS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which MATHIS, J., joined in full and BUSH, J., joined except as to Section IV. BUSH, J. (pp. 27–31), delivered a separate opinion concurring in part and dissenting in part.

JULIA SMITH GIBBONS, Circuit Judge. A jury convicted Corey Lanier of three counts

of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and three counts

of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C.

§ 924(c). Lanier was sentenced to 946 months’ imprisonment. But after the Supreme Court

invalidated the residual clause of § 924(c), Lanier’s § 924(c) convictions were vacated, and he

returned to the district court for resentencing. The district court imposed a new sentence of 360

months’ imprisonment, and Lanier appeals. For the reasons set forth below, we vacate Lanier’s

sentence and remand for resentencing. No. 21-5619, United States v. Lanier

I.

Over the course of several months in 2009, Corey Lanier, along with other individuals,

planned and executed armed robberies that targeted known drug dealers in the Nashville area. In

the robberies, Lanier and his associates gained access to the targets’ homes and demanded money

and other valuables at gunpoint.

In one robbery, Lanier and three other men forcibly entered the home of Ryan McGuire,

demanded money, and forced McGuire to crawl on the floor to the bedroom with a gun pointed at

the back of his head. After discovering McGuire’s girlfriend and children in the bathroom, the

intruders also demanded money from McGuire’s girlfriend. The children, seeing their father

crawling along the floor, pled for his life. One of the robbers suggested that they should shoot the

McGuire in front of his children, but the men ultimately left without doing so after taking $15,000

in cash and a laptop computer.

In another robbery, Lanier recruited three men to target the home of Markeith Davis.

Lanier drove the group to the house and then waited in the car while the other men forcibly entered

the home. Davis was not there, however, and the intruders found only two women, Tamika Beard

and Lakeya Northern, an additional adult, and four young children. The men held a gun to Beard’s

neck, forced the children to go to and remain in one of the back rooms, and demanded firearms

from the adults. The men then forced Northern to another room at gunpoint, where they discovered

and grabbed drugs. At various times, the men pointed their weapons at the victims and told them

not to move, and at one point, they threw Northern to the floor. The men eventually fled with three

to four ounces of crack cocaine and several thousand dollars in cash.

In the final robbery, Lanier identified the target, Angela Rogan, because Lanier had been

told that she would have a large amount of money that her husband left when he went to federal

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prison. Lanier organized the robbery but did not directly participate because he feared that the

victims would be able to identify him. Lanier’s coconspirators posed as potential buyers of two

vans that Rogan was trying to sell, and when they went to her home ostensibly to complete the

sale, the men pulled out guns and announced that it was a robbery. The men held Rogan and her

son at gunpoint, dragging her around the house and hitting her with the gun while demanding to

know where the money was located. Eventually, an acquaintance of Rogan’s called the police,

and the men were arrested.

Based on this conduct, Lanier was charged in a six-count indictment. For each of the three

robberies, Lanier was charged with two counts—conspiracy to commit Hobbs Act robbery, in

violation of 18 U.S.C. § 1951, and brandishing a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c). A jury convicted Lanier on all counts.

In advance of Lanier’s sentencing, the Probation Office prepared a Presentence

Investigation Report (“PSR”). For the Hobbs Act conspiracy counts, the PSR calculated a total

offense level of 321 and a criminal history category of VI, which yielded an advisory range of 210

to 262 months.

At sentencing, Lanier moved for a departure or downward variance on the Hobbs Act

counts, arguing that the mandatory minimum for the § 924(c) counts already imposed what

effectively amounted to a life sentence. The court denied Lanier’s motion and sentenced him at

the top of the advisory range. For the convictions under § 924(c), the court ordered the sentences

to run consecutively, as required by statute. The court imposed a total sentence of 946 months’

1 The offense level was based in part on the finding that Lanier was a career offender under U.S.S.G. § 4B1.1.

-3- No. 21-5619, United States v. Lanier

imprisonment, with 262 months on the Hobbs Act counts,2 to be followed by terms of 84 months,

300 months, and 300 months on the § 924(c) counts.

Lanier unsuccessfully challenged his convictions on direct appeal. He then moved to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Lanier argued, among other

things, that his § 924(c) convictions were invalid under Johnson v. United States, 576 U.S. 591

(2015), because they were based on Hobbs Act conspiracy, which did not satisfy the force clause

of § 924(c)(3)(A). After the Supreme Court invalidated the residual clause of § 924(c)(3)(B) in

United States v. Davis, 139 S. Ct. 2319 (2019), the district court vacated Lanier’s § 924(c)

convictions and ordered that he be resentenced.

For Lanier’s resentencing, the Probation Office prepared a new PSR. The revised PSR

calculated a total offense level of 38 and a criminal history category of VI, resulting in a Guidelines

range of 360 months to life imprisonment. The offense level was based on Count Three because

that count carried the highest offense level at 35.3 The PSR then applied a three-level multi-count

enhancement under U.S.S.G. § 3D1.4, resulting in the final level of 38. The government did not

file any objections. Lanier, proceeding pro se with the help of appointed elbow counsel, raised

objections to various aspects of the new PSR. Relevant here, Lanier objected to several

enhancements recommended by the PSR as well as the consecutive nature of the sentences.

2 Counts One, Three, and Five each carried a 240-month statutory maximum. The court sentenced Lanier to 240 months on Counts One and Three, to be run concurrently, and 22 months on Count 5 that ran consecutive to Counts One and Three. 3 Count Three was based on the third robbery, the one involving Tamika Beard and Lakeya Northern. Because Count Three became the baseline for the other Guideline determinations, Lanier’s objections focus on the enhancements applied to that count. -4- No. 21-5619, United States v. Lanier

The first enhancement to which Lanier objected was a two-level vulnerable victim

enhancement under U.S.S.G. § 3A1.1(b)(1). The original PSR did not recommend this

enhancement, and the government raised no objection to its nonapplication at Lanier’s original

sentencing. The revised PSR explained that the enhancement applied because four young children

were present at the robbery underlying Count 3. The PSR added the recommendation even though

the facts supporting the enhancement were known at the original sentencing and there were no

applicable intervening changes in the Guidelines or caselaw. The resentencing judge overruled

Lanier’s objection and applied the enhancement.4

The second enhancement to which Lanier objected was a two-level enhancement under

§ 2B3.1(b)(4)(B) for “physically restrain[ing]” a person to facilitate the commission of the robbery

or to facilitate escape.5 The PSR applied this enhancement based on the finding that Lakeya

Northern was forced to move at gunpoint so that the men could locate and take drugs. The court

overruled Lanier’s objection and applied the enhancement.

The final enhancement to which Lanier objected was a six-level enhancement under

§ 2B3.1(b)(2)(B), for “otherwise us[ing]” a firearm during the robbery. The PSR explained that

the enhancement applied because “during the robbery, a gun was held to Tamika Beard’s neck,

and the robbers held Tamika Beard and Lakeya Northern at gunpoint and told them not to move.”

DE 345, 2020 PSR, Page ID 3118. The original PSR had not applied this enhancement because

the § 924(c) counts, which punished the use of a firearm, precluded the application of additional

4 The resentencing judge, who was not the original sentencing judge, did note that he “struggle[d] with . . . the issue of the enhancement for vulnerable victims that was not included in the original presentence report.” DE 342, Resent. Tr., Page ID 3079. 5 The original PSR also applied this enhancement. -5- No. 21-5619, United States v. Lanier

specific offense characteristics for possession, brandishing, use, or discharge of a firearm. The

court again overruled Lanier’s objection and applied the enhancement.

After applying all of the recommended enhancements, the district court went on to agree

with the PSR’s calculation of Lanier’s criminal history points and criminal history category. Using

the total offense level of 38 and criminal history category of VI, the court calculated a Guidelines

range of 360 months to life imprisonment.

Finally, the court addressed the 18 U.S.C. § 3553 factors. It first acknowledged that Lanier

had a history of childhood abuse and grew up in a “somewhat dangerous environment.” DE 342,

Resent. Tr., Page ID 3078. The court also noted the national disparity factor. Although Lanier

had submitted documentation of fifty Hobbs Act robbery and conspiracy sentences, the court

commented only that Lanier presented a “disparity argument” without engaging in any extended

analysis. Id. at 3077.

The court then sentenced Lanier to 360 months’ imprisonment, the low end of the

Guidelines range. The court structured the sentence as 98 months for Count One, 240 months for

Count Three, and 22 months for Count Five. The court then stated that the sentences would “run

consecutively as required under Section 5G1.2(d) of the guidelines.” DE 342, Resent. Tr., at Page

ID 3079. After the court announced the sentence, Lanier objected to running the sentences

consecutively but did not state a specific basis for his objection, saying only, “I object to the

consecutive sentences.”6 Id. at Page ID 3087. The court overruled Lanier’s objection. Id.

6 Lanier also objected to running the sentences consecutively in his response to the PSR. This objection challenged the PSR’s conclusion that the three counts should not be grouped under § 3D1.2(a)-(d) because they did not involve substantially the same harm. Lanier does not pursue that argument on appeal. -6- No. 21-5619, United States v. Lanier

II.

On appeal, Lanier argues that his sentence is both procedurally and substantively

unreasonable, identifying several claimed errors. First, Lanier argues that the district court erred

when it imposed consecutive sentences based on an apparent belief that the Guidelines required it.

Second, Lanier argues that the district court erred when it applied the vulnerable victim

enhancement even though the enhancement was not recommended or litigated at his original

sentencing. Third, Lanier argues that the district court erred by engaging in impermissible double

counting when it applied both a firearm and physical restraint enhancement. Finally, Lanier argues

that the district court erred by failing to properly address his national disparity argument.

Review of a criminal sentence considers the substantive and procedural reasonableness of

the sentence. United States v. Snelling, 768 F.3d 509, 511 (6th Cir. 2014). “Substantive

reasonableness is concerned with the length of a sentence,” and procedural reasonableness “is

concerned with the method by which the court arrives at the sentence.” Id. at 511–12. Thus, a

reasonableness review assesses the length of the sentence, the factors that the district court

evaluated in imposing the sentence, and the procedures employed to reach the sentence. United

States v. Herrera-Zuniga, 571 F.3d 568, 581 (6th Cir. 2009).

A sentence is procedurally unreasonable if it is marked by “significant procedural error,

such as 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.” Gall v. United

States, 552 U.S. 38, 51 (2007). The district court must also “explain[ ] its reasoning to a sufficient

degree to allow for meaningful appellate review.” United States v. Trejo-Martinez, 481 F.3d 409,

412–13 (6th Cir. 2007). “The sentencing judge should set forth enough to satisfy the appellate

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court that he has considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

A sentence is substantively unreasonable if it is based on impermissible factors, is arbitrary,

fails to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any

particular § 3553(a) factor. United States v. Brown, 501 F.3d 722, 724 (6th Cir. 2007). In

conducting this review, we consider the totality of the circumstances, but “a sentence that falls

within the Guidelines range warrants a presumption of reasonableness.” United States v. Tristan-

Madrigal, 601 F.3d 629, 633 (6th Cir. 2010) (internal quotation marks omitted).

We review sentencing determinations for abuse of discretion. United States v. Gillispie,

929 F.3d 788, 789 (6th Cir. 2019). “An abuse of discretion occurs when the district court relies

on clearly erroneous findings of fact, uses an erroneous legal standard, or improperly applies the

law.” United States v. Elias, 984 F.3d 516, 520 (6th Cir. 2021) (citation and internal quotation

marks omitted). If a party fails to object in the district court, however, plain error review applies.

United States v. Alexander, 543 F.3d 819, 823 (6th Cir. 2008); United States v. Vonner, 516 F.3d

382, 385 (6th Cir. 2008) (en banc). Plain error is an “egregious error, one that directly leads to a

miscarriage of justice,” United States v. Frazier, 936 F.2d 262, 266 (6th Cir. 1991), or error that

is obvious, affects substantial rights, and seriously impairs the fairness or integrity of the judicial

proceedings, United States v. Modena, 302 F.3d 626, 630 (6th Cir. 2002).

“A party ‘must object with that reasonable degree of specificity which would have

adequately apprised the trial court of the true basis for his objection.’” United States v. Bostic, 371

F.3d 865, 871 (6th Cir. 2004) (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir.

1980)). A specific objection allows the district court “an opportunity to address the error” and

“allows this court to engage in more meaningful review.” Id. To encourage appropriate objections,

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after announcing the sentence, district courts must “ask the parties whether they have any

objections to the sentence . . . that have not previously been raised.” Id. at 872. The so-called

Bostic question is “especially pertinent with respect to objections that concern the adequacy of the

court’s explanation precisely because such objections cannot be made until after the court states

its reasoning in the course of sentencing the defendant.” United States v. Simmons, 587 F.3d 348,

354 (6th Cir. 2009).

III.

Lanier’s first argument challenges the district court’s decision to run his sentences

consecutively. His argument includes two related components. First, he argues that the district

court erroneously believed that the Guidelines required mandatory consecutive sentences. Second,

he argues that the district court failed to adequately explain its decision to impose consecutive

sentences.

The parties dispute what standard of review applies to this claim. Lanier seeks review for

abuse of discretion, arguing that he preserved the issue by objecting both before and after the

court’s Bostic question. Lanier highlights that he was a pro se litigant at his resentencing and

argues that his multiple objections met the lower bar required of a pro se petitioner. The

government, in contrast, contends that plain error review applies because Lanier did not properly

object. Specifically, the government argues that Lanier raised a different objection before

sentencing—that the district court could not impose consecutive sentences—and that Lanier has

now abandoned that position. The government then argues that Lanier’s response to the Bostic

question did not identify any basis or reasoning for his objection, so it was insufficient to preserve

the issue.

-9- No. 21-5619, United States v. Lanier

We need not decide this issue, however, because, as explained below, the district court

misstated the law when imposing Lanier’s sentence, and that misstatement constitutes reversible

error even under plain error review. See United States v. Rainier, 314 F. App’x 846, 847 (6th Cir.

2009) (“where the district court states that [the Guidelines] require[] that it impose a consecutive

sentence, the court has failed to recognize its discretion, the statement constitutes plain error, and

the case must be remanded for resentencing.”).

When a district court considers whether to impose concurrent or consecutive sentences,

statutory and Guidelines provisions both influence the determination. To start, the general rule is

that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court

orders or the statute mandates that the terms are to run consecutively.” 18 U.S.C. § 3584(a). Under

U.S.S.G. § 5G1.2(d), however, “[i]f the sentence imposed on the count carrying the highest

statutory maximum is less than the total punishment, then the sentence imposed on one or more of

the other counts shall run consecutively, but only to the extent necessary to produce a combined

sentence equal to the total punishment.” Thus, in situations where the Guidelines range exceeds

the statutory maximum for each individual count, like Lanier’s, the Guidelines appear to make a

consecutive sentence mandatory.

Despite this Guidelines directive, however, federal law requires sentencing courts to

exercise discretion in choosing between a consecutive and concurrent sentence. 18 U.S.C.

§ 3584(b) (“The court, in determining whether the terms imposed are to be ordered to run

concurrently or consecutively, shall consider . . . the factors set forth in section 3553(a).”).

Applying 18 U.S.C. § 3584, we have recognized that, despite the seemingly mandatory language

of U.S.S.G. § 5G1.2(d), district courts have “discretion to impose consecutive or concurrent

sentences.” Rainier, 314 F. App’x at 847.

- 10 - No. 21-5619, United States v. Lanier

To exercise this discretion, a sentencing court considering whether to run sentences

concurrently or consecutively must consider the factors set forth in § 3553(a), see 18 U.S.C.

§ 3584(b), and must identify “‘the rationale under which it has imposed the consecutive

sentence.’” United States v. Ross, 375 F. App’x 502, 506 (6th Cir. 2010) (quoting United States

v. Johnson, 553 F.3d 990, 998 (6th Cir. 2009)). A court need not state a “specific reason for a

consecutive sentence” aside from that general rationale, and it is sufficient if the court

“incorporate[s] by reference a discussion of the relevant considerations in another document such

as the Presentence Report,” or “make[s] clear that its reasons for choosing a substantive sentence

and for running two sentences consecutively are the same.” United States v. Cochrane, 702 F.3d

334, 346 (6th Cir. 2012) (citation omitted). A district court, however, “commits reversible error

when it mistakenly believes that the Guidelines compel the imposition of a consecutive sentence.”

United States v. Eddy, 468 F. App’x 487, 489 (6th Cir. 2012) (citing United States v. Jackson, 244

F. App’x 727, 728–29 (6th Cir. 2007)); United States v. Green, 157 F. App’x 853, 858 (6th Cir.

2005); United States v. Sparks, 19 F.3d 1099, 1101 (6th Cir. 1994); United States v. Gibbs, 506

F.3d 479, 483 (6th Cir. 2007)).7

Here, before imposing the sentence, the district court went through the § 3553(a) factors,

noting various items that would impact the sentence. Then, the court announced that Lanier would

be sentenced to “a total term of 360 months.” DE 342, Resent. Tr., Page ID 3079. The court

explained that the sentence would be allocated as 98 months on Count One, 240 months on Count

Three, and 22 months on Count Five. The court stated that the three sentences would “run

7 These cases involved the application of other sections of the Guidelines, but the reasoning of those cases applies equally to § 5G1.2(d). Further, in United States v. Eversole, we noted that “after Booker, [§ 5G1.2(d)] is no longer mandatory.” 487 F.3d 1024, 1033 (6th Cir. 2014) (citing United States v. Booker, 543 U.S. 220 (2005)). - 11 - No. 21-5619, United States v. Lanier

consecutively as required under Section 5G1.2(d) of the guidelines.” Id. The district court offered

no other explanation for running the sentences consecutively.

The statement that consecutive sentences were required by the Guidelines, absent any other

explanation, indicates that the district court “mistakenly believe[d] that the Guidelines compel[led]

the imposition of a consecutive sentence.” Eddy, 468 F. App’x at 489. Although the court had the

discretion to impose consecutive sentences, its apparent failure to recognize its discretion and

consider the § 3553(a) factors constitutes reversible error. Ross, 375 F. App’x at 506.

The government resists this conclusion, arguing that the district court understood its

discretion,8 as evidenced by its proper calculation of the Guidelines range, consideration of

Lanier’s argument for a downward variance, and selection of the overall sentence. In support of

its point, the government cites United States v. Banks, in which the Seventh Circuit rejected the

defendant’s claim that the district court mistakenly considered the Guidelines mandatory. 828

F.3d 609, 619–20 (7th Cir. 2016). In its analysis, the Seventh Circuit noted that the sentencing

judge “entertained Banks’s argument for a below-Guidelines sentence and imposed the 432-month

sentence before discussing whether and to what extent the counts would run concurrently or

consecutively.” Id. The Seventh Circuit found that these facts suggested that the sentencing judge

understood its discretion. Id. Similarly, the district court in Lanier’s case entertained Lanier’s

variance arguments, imposed the total sentence before allocating it across the counts, and never

indicated that it wanted to impose a sentence less than 360 months but could not because of the

Guidelines.

8 The government also points out that there “is a presumption . . . that a district court knows and applies the law correctly.” United States v. Gale, 468 F.3d 929, 941 (6th Cir. 2006). This presumption, however, does not outweigh a district court’s explicit misstatement of the law. See Eddy, 468 F. App’x at 490. - 12 - No. 21-5619, United States v. Lanier

But, unlike in Banks, the district court in Lanier’s case explicitly stated that the sentences

would run consecutively “as required under section 5G1.2(d) of the guidelines.” DE 342, Resent.

Tr., at Page ID 3079. The district court did not provide any other explanation or rationale for the

consecutive sentences, even after Lanier raised his objection in response to the Bostic question.

Absent any other explanation for imposing consecutive sentences, the district court’s explicit

misstatement of law constitutes reversible error. See Eddy, 468 F. App’x at 489; Jackson, 244 F.

App’x at 728–29; Green, 157 F. App’x at 858; Sparks, 19 F.3d at 1101; Gibbs, 506 F.3d at 483.

IV.

Lanier’s second argument challenges the application of the vulnerable victim enhancement.

Lanier first argues that the enhancement cannot be applied because it was not recommended nor

litigated at his original sentencing. Lanier also argues that the enhancement does not apply on the

merits.

We review waiver issues as mixed questions of law and fact. United States v. Boudreau,

564 F.3d 431, 435 (6th Cir. 2009). When, as here, a litigant challenges only the district court’s

legal conclusions, de novo review applies. Id. Review of the district court’s authority on

resentencing is a question of law reviewed de novo. United States v. Gordils, 117 F.3d 99, 101

(2d Cir. 1997). Finally, de novo review also applies when a litigant challenges the legal conclusion

of whether undisputed facts trigger a sentencing enhancement. See United States v. Walters, 775

F.3d 778, 781 (6th Cir. 2015).9 Plain error review applies, however, if a party fails to raise an

objection in the district court. United States v. Webster, 615 F. App’x 362, 364 (6th Cir. 2015).

9 Sixth Circuit caselaw is somewhat unclear about the standard of review that applies when a party challenges the application of an enhancement to undisputed facts. See United States v. Thomas, 933 F.3d 605, 608–10 (6th Cir. 2019). Most cases, however, apply de novo review to purely legal questions. Id. Here, because the facts are undisputed and Lanier challenges only the district court’s legal conclusions as to the enhancement’s application, de novo review applies. - 13 - No. 21-5619, United States v. Lanier

Plain error review also applies if the objection raised on appeal is based on different grounds that

the one raised in the district court. Id. (citation omitted).

The parties again dispute the standard of review. Lanier maintains that his waiver and

scope of authority arguments should be reviewed de novo, and his merits claim should be reviewed

for abuse of discretion. In support of these points, Lanier argues that he preserved the issues in his

written response to the PSR. The government, in contrast, argues that plain error review applies

to Lanier’s claims because the objections he made in the district court differ from those raised on

appeal. Specifically, the government argues that, in the district court, Lanier based his objection

to the enhancement on (now-abandoned) allegations of prosecutorial and judicial vindictiveness.

In Lanier’s written response to the revised PSR, he objected to the vulnerable victim

enhancement, arguing that it was “not applicable” because it was “never applied to the Guidelines

calculation in the original presentence report prepared for the original sentencing (10 years ago)”

and “the government did not object . . . back then.” DE 313, Pos. Re. PSR, Page ID 2934.

Admittedly, Lanier also claimed in his objections that the newly added enhancement was “nothing

more than retaliation for successfully attacking the career offender enhancement and 924(c)

convictions.” Id. But Lanier’s primary argument was that the enhancement could not be added

for the first time at the resentencing when the government did not object to its omission at the

original sentencing. Given that Lanier was proceeding pro se, and that pro se litigants’ objections

are construed liberally, see United States v. Smotherman, 838 F.3d 736, 739 (6th Cir. 2016), Lanier

preserved the issue. Accordingly, we review the district court’s application of the vulnerable

victim enhancement de novo.

Lanier identifies both the law-of-the-case and waiver doctrines as bases for barring the

vulnerable victim enhancement’s application at his resentencing. The law-of-the-case doctrine

- 14 - No. 21-5619, United States v. Lanier

“bars challenges to a decision made at a previous stage of the litigation which could have been

challenged in a prior appeal, but were not.” United States v. Adesida, 129 F.3d 846, 850 (6th Cir.

1997). The doctrine also precludes consideration of issues “decided at an early stage of the

litigation, either explicitly or by necessary inference from the disposition.” United States v.

Knight, 789 F. App’x 531, 532 (6th Cir. 2020) (internal quotation marks omitted). We have

cautioned, however, that the law-of-the-case doctrine has “little applicability in the sentencing

arena.” United States v. Hebeka, 89 F.3d 279, 284 (6th Cir. 1996). Because “there appears to be

no prohibition in the guidelines, or in the case law interpreting the guidelines, keeping a district

judge from revisiting the entire sentencing procedure unless restricted by the remand order,”

United States v. Duso, 42 F.3d 365, 368 (6th Cir. 1994), a “district court can hear any relevant

evidence . . . that it could have heard at the first hearing” on a general remand for resentencing,

United States v. Moored, 38 F.3d 1419, 1422 (6th Cir. 1994).

Here, the law-of-the-case doctrine does not apply. First, Lanier’s case returned to the

district court on a general remand,10 and the typical rule is that a district court may consider any

issue that it could have heard at the first sentencing. See id. Second, whether the vulnerable victim

enhancement applied to the facts of Lanier’s conviction was not decided, either explicitly or by

necessary inference, in the first sentencing. The vulnerable victim enhancement in Lanier’s case

10 Lanier also contends that his resentencing had a limited scope, with the court empowered to address “only those issues necessary to correct interdependent convictions affected by vacatur.” CA6 R. 28, Appellant Br., at 23. Thus, according to Lanier, application of the vulnerable victim enhancement was “improper because its application did not hinge on vacatur but was an independent—and not interdependent—matter.” Id. (emphasis in original). The presumption, however, is that “on remand following a direct appeal, a district court can consider de novo any arguments regarding sentencing if the remand order does not limit its review.” Saikaly, 207 F.3d at 369. This presumption extends to remands following successful § 2255 motions. See United States v. Flack, 941 F.3d 238, 240–41 (6th Cir. 2019). Here, on the general remand Lanier’s case, the district court’s authority was not limited to certain issues, and it could consider any (non- waived) arguments. Saikaly, 207 F.3d at 369. - 15 - No. 21-5619, United States v. Lanier

was never raised in the original sentencing or direct appeal, nor did any of the original sentencing

court’s reasoning implicitly decide the issue. Thus, the law-of-the-case doctrine does not preclude

the vulnerable victim enhancement.

The related doctrine of waiver, however, does apply. Generally, “on remand following a

direct appeal, a district court can consider de novo any arguments regarding sentencing if the

remand order does not limit its review.” United States v. Saikaly, 207 F.3d 363, 369 (6th Cir.

2000). But “when a party fails to seek review of a district court’s final order, it is barred from

reasserting that issue in any subsequent appeals occurring in that case.” United States v. McKinley,

227 F.3d 716, 718 (6th Cir. 2000). A narrow exception to the waiver doctrine exists, permitting

parties to “address issues on remand not addressed during the initial sentencing appeal,” but it

applies only “if the moving party had been either unable to assert the issue initially or the issue

only became logically relevant following remand.” Boudreau, 564 F.3d at 435 n.1 (6th Cir. 2009).

The waiver doctrine is based on the belief that “[i]t would be absurd that a party who has

chosen not to argue a point on a first appeal should stand better . . . than one who had argued and

lost.” Adesida, 129 F.3d at 850 (quoting Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981)).

The doctrine also “discourages ‘perpetual litigation’ and promotes finality in criminal proceedings

by requiring that parties seek review of a claim in the first appeal.” United States v. Traxler, 517

F. App’x 472, 474 (6th Cir. 2013) (quoting McKinley, 227 F.3d at 719).

We have applied the waiver doctrine in the sentencing context. See United States v. Wynn,

485 F. App’x 766, 772 (6th Cir. 2012) (finding that the defendant waived any objection to the

classification of his conviction and could not later challenge it as a predicate offense); United

States v. Sedore, 512 F.3d 819, 827 (6th Cir. 2008) (holding that the defendant waived any

argument that there was only one victim for sentencing-enhancement purposes because he did not

- 16 - No. 21-5619, United States v. Lanier

raise it in his first appeal or resentencing hearing); United States v. Mitchell, 232 F. App’x 513,

517 (6th Cir. 2007) (“Because [the defendant] did not object to the district court’s application of

the enhancement under [U.S.S.G.] § 2K2.1(b)(5) in his prior appeal, [he] is foreclosed from raising

the objection now.”); McKinley, 227 F.3d at 718.

In United States v. McKinley, we applied the doctrine against the government, holding that

the government waived its argument for application of a sentence enhancement by abandoning it

in the original appeal. 227 F.3d at 718–19. The government had requested the enhancement in

the district court, but after the district court declined to apply it, the government did not pursue the

issue on appeal. Id. In finding that the government waived the issue by failing to raise it on appeal,

we noted that although “the district court may entertain any issues it feels are relevant to the overall

sentencing decision (following a general remand), this does not give the parties license to re-assert

issues that they should have raised during an earlier appeal.” Id. (citing Hebeka, 89 F.3d at 284–

85). We further explained that the waiver doctrine “exists to forestall this kind of perpetual

litigation by notifying parties that they will forfeit their claims if they fail to seek review in the

first appeal.” Id. at 719.

The government in Lanier’s case never requested the vulnerable victim enhancement in his

original sentencing. In contrast, the government in McKinley made an affirmative choice to

abandon the enhancement after arguing for it unsuccessfully in the district court. Id. Despite that

difference, however, the waiver doctrine applies equally here. We explained the waiver doctrine

in McKinley as precluding “issues [the party] should have raised” previously. Id. at 718. Nothing

prevented the government from raising the vulnerable victim enhancement in Lanier’s original

- 17 - No. 21-5619, United States v. Lanier

sentencing.11 There were no changes in the caselaw, Guidelines, or understanding of the facts as

they pertained to the vulnerable victim enhancement between the original sentencing and the

resentencing. The government chose not to request the vulnerable victim enhancement12 at

11 The government argues that, even if the enhancement was erroneously applied, it was harmless error. The government highlights the district court’s comments at the sentencing hearing: But I will note that without that enhancement, which I think is appropriate given the presence of the children during these robberies, especially with Count Three, the Court—Count Three would still be the highest count for the guideline calculation of those three counts. And even if the offense level didn’t include a victim enhancement, it would have been an offense level 36, Criminal History VI, which would have put a range of 324 to 405 months. So the 360-month sentence is still within that guideline range, albeit in the middle, as opposed to the low end, and I will just note that for the record. The government argues that these comments show that the district court would have imposed the same sentence even without the enhancement, rendering it harmless error. To establish harmless error, the government must show “with certainty that the error at sentencing did not cause the defendant to receive a more severe sentence.” United States v. Gillis, 592 F.3d 696, 699 (6th Cir. 2009) (emphasis in original). The court’s statement here, however, does not establish that with certainty. The district court indicated that the sentence would still be within the Guidelines range, but it did not state that it would impose the same sentence without the enhancement. Cf. United States v. Morrison, 852 F.3d 488, 491–92 (6th Cir. 2017). Therefore, the comment does not establish that the error was harmless. 12 The dissent points out that it was the probation officer and not the government who raised the enhancement at the resentencing and that the probation officer is not a party capable of waiving or forfeiting issues. But this fact does not change the outcome. First, despite the probation officer’s role in recommending enhancements, the government ultimately bears the burden to prove that a particular enhancement applies. See United States v. Byrd, 689 F.3d 636, 640 (6th Cir. 2012) (citing United States v. Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012)). Here, the probation officer prepared a PSR before each of Lanier’s sentencing hearings, and the parties had the opportunity to object to the PSR’s recommendations, either to argue that a recommended enhancement did not apply or that an enhancement that was not recommended did apply. By failing to object to the enhancement’s omission in the original sentencing, the government waived the issue. At the resentencing, the government again was the party that bore the burden to prove that the enhancement applied. Thus, its waiver of the issue in the first sentencing extended to the second. The fact that the probation officer recommended it is immaterial because, as the dissent acknowledges, the probation officer’s recommendations were merely advisory. See United States v. Gaines, 888 F.2d 1122, 1123–24 (6th Cir. 1989) (per curiam) (noting that probation officers make recommendations but that the ultimate sentencing decision is left to the district court).

- 18 - No. 21-5619, United States v. Lanier

Lanier’s original sentencing, and accordingly, it waived any argument for the enhancement’s

application at his resentencing.13

V.

Lanier next argues that the district court erred when it applied both a firearm and a physical

restraint enhancement, claiming that it based both enhancements on the same conduct and

therefore engaged in impermissible double counting. At his resentencing, Lanier objected to the

application of both enhancements, preserving the issue. See United States v. Boards, 202 F. App’x

869, 871 (6th Cir. 2006). Because Lanier challenges only the district court’s legal conclusions that

the enhancements apply, and not its findings of fact, we review de novo. See United States v.

Mitchell, 227 F. App’x 472, 473 (6th Cir. 2007); United States v. Bolden, 479 F.3d 455, 460–61

n.1 (6th Cir. 2007); United States v. Coleman, 664 F.3d 1047, 1048 (6th Cir. 2012).

“[I]mpermissible ‘double counting’ occurs when precisely the same aspect of a defendant’s

conduct factors into his sentence in two separate ways.” United States v. Eversole, 487 F.3d 1024,

1030 (6th Cir. 2007) (quotations omitted). Although we take a “dim view of double counting,”

United States v. Smith, 196 F.3d 676, 681 (6th Cir. 1999), “not all instances of double counting

are impermissible,” United States v. Fleischer, 971 F.3d 559, 570 (6th Cir. 2020). Thus, the first

step is to consider whether double counting occurred. United States v. Duke, 870 F.3d 397, 404

(6th Cir. 2017). Double counting does not occur if the conduct supporting each enhancement is

distinct. United States v. Perkins, 89 F.3d 303, 310 (6th Cir. 1996). Similarly, double counting

does not occur “where separate enhancements penalize distinct aspects of the defendant’s conduct”

Because we hold that the government waived the enhancement’s application, we need not decide 13

whether it applies on the merits. - 19 - No. 21-5619, United States v. Lanier

to punish “conceptually distinct kind[s] of harm.” Eversole, 487 F.3d at 1030 (citations and

internal quotation marks omitted).

If double counting occurs, the second step is to determine whether it is impermissible.

Duke, 870 F.3d at 404; see also United States v. Farrow, 198 F.3d 179, 194 (6th Cir. 1999).

Double counting is permissible where “the Sentencing Guidelines expressly mandate double

counting . . . through the cumulative application of sentencing adjustments.” Farrow, 198 F.3d at

194. Double counting is also permissible where “Congress or the Sentencing Commission

intended to attach multiple penalties to the same conduct.” Id.

Here, Lanier argues that application of both enhancements amounts to double counting

because the enhancements punish the same conduct. Further, Lanier argues that neither Congress

nor the Sentencing Commission explicitly or implicitly approved of double counting in this

scenario. The government, in contrast, argues that the enhancements punish separate behavior and

discrete harms and that both Congress and the Sentencing Commission intended double counting.

The firearm enhancement, under § 2B3.1(b)(2) of the Guidelines, adds a varying number

of levels based on how the firearm is used during the course of a robbery. If a firearm is discharged,

it adds seven levels. U.S.S.G. § 2B3.1(b)(2)(A). If a firearm is “otherwise used,” it adds six levels.

Id. § 2B3.1(b)(2)(B). If a firearm is “brandished or possessed,” it adds five levels. Id.

§ 2B3.1(b)(2)(C). The “otherwise used” provision applies if, for example, a robber “point[s] a

firearm at an individual and mak[es] a demand of that individual,” such as directing her to stay

still. United States v. Bolden, 479 F.3d 455, 461 (6th Cir. 2007).

The physical restraint enhancement, under § 2B3.1(b)(4)(B) of the Guidelines, adds two

levels in cases in which the defendant “physically restrained” any person “to facilitate commission

of the offense or to facilitate escape.” This enhancement applies if, for example, a robber

- 20 - No. 21-5619, United States v. Lanier

brandishes a firearm and forces an individual to move from one location to another. Coleman, 664

F.3d at 1050–51.

The 2020 PSR applied the “otherwise used” enhancement under § 2B3.1(b)(2)(B) based

on the finding that “during the robbery, a gun was held to Tamika Beard’s neck, and the robbers

held Tamika Beard and Lakeya Northern at gunpoint and told them not to move while demanding

firearms,” and at one point, “Northern was also thrown to the floor.” DE 345, 2020 PSR, Page ID

3118–19. The PSR then applied the “physical restraint” enhancement under § 2B3.1(b)(4)(B)

based on the finding that “Lakeya Northern was forced at gunpoint to move to another room to

facilitate the robbery of the drugs.” Id. at 3119.

The application of both enhancements in Lanier’s case did not constitute double counting.

First, the two enhancements applied based on separate conduct. The PSR recommended the

firearm enhancement because the men held the victims at gunpoint and made demands. This

conduct justifies the firearm enhancement. See Bolden, 479 F.3d at 461, 463. The PSR then

recommended the physical restraint enhancement because the men forced Northern to move to

another location. This separate conduct justifies the physical restraint enhancement. See Coleman,

664 F.3d at 1050–51. Although both incidents occurred close in time and as part of the same

robbery, they represented distinct conduct.

The two enhancements also focused on separate harms. In United States v. Hayes, we

rejected a double counting challenge based on a firearm conviction and the application of a

physical restraint enhancement. 399 F. App’x 57, 61–62 (6th Cir. 2010). In that case, we

acknowledged that the conviction and enhancement both arose from the same conduct but

concluded that they punished “different aspects of the defendant’s conduct.” Id. at 61 (citation

and internal quotation marks omitted). In Lanier’s case, the firearm enhancement punished the

- 21 - No. 21-5619, United States v. Lanier

use of guns to force the victims to provide information and not to interfere with the robbery. The

physical restraint enhancement punished the fact that the robbers forced one of the victims to move

to another location against her will. These are distinct harms.

Because the two enhancements were based on separate conduct and distinct harms, their

application did not constitute double counting.14

VI.

Lanier’s final argument is that the district court erred by failing to consider the disparities

between Lanier’s sentence and other similar sentences. The argument is two-fold. First, Lanier

argues that the district court failed to adequately explain its reasoning as to the issue of national

disparities, rendering the sentence procedurally unreasonable. Second, Lanier contends that the

district court imposed a sentence that was too severe as compared to national norms, resulting in a

sentence that was substantively unreasonable.

Again, we must first determine the standard of review. The government concedes that

Lanier’s substantive reasonableness claim should be reviewed for abuse of discretion, but it argues

that his procedural reasonableness claim should be reviewed for plain error because Lanier did not

object to the sufficiency of the court’s explanation at the sentencing hearing. Lanier argues that

both claims should be reviewed for abuse of discretion because he objected before and during the

sentencing proceedings.

We agree with the government’s position. Lanier did not object to the adequacy of the

court’s explanation regarding his national disparity argument at the sentencing hearing. His earlier

filings, and their objections, do not extend to the adequacy of the court’s explanation, because the

14 Because application of the two enhancements did not constitute double counting, we need not decide whether Congress or the Sentencing Commission intended double counting in this instance. - 22 - No. 21-5619, United States v. Lanier

explanation had not yet occurred. Simmons, 587 F.3d at 354. Thus, we review Lanier’s procedural

reasonableness claim for plain error. Because Lanier preserved his substantive reasonableness

claim when he objected to the length of his sentence based on his national disparity argument, we

review for abuse of discretion.

To be procedurally reasonable, a district court’s sentence must be free from “significant

procedural error, such as 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.” Gall, 552

U.S. at 51. With respect to adequacy of a district court’s explanation for the sentence imposed,

we grant substantial leeway to the district court’s professional judgment about how much

explanation is warranted. Rita v. United States, 551 U.S. 338, 356 (2007). That is, we defer to the

district court to determine “[t]he appropriateness of brevity or length, conciseness or detail, when

to write, what to say,” depending on the circumstances. Id. Where, as here, plain error review

applies, we are even more deferential. Vonner, 516 F.3d at 386.

“In passing sentence, district courts must address legitimate mitigating arguments raised

by the defendant.” United States v. Sweeney, 891 F.3d 232, 239 (6th Cir. 2018). A district court,

however, “need not engage in a formulaic point-by-point refutation of a defendant’s mitigation

arguments.” Id. Similarly, a sentencing court need not address a defendant’s argument if it lacks

a factual basis, is without legal merit, or presents “conceptually straightforward” issues. Simmons,

587 F.3d at 361–62. Instead, a “district court discharges its duty so long as it ‘conduct[s] a

meaningful sentencing hearing and truly consider[s] the defendant’s arguments.’” Sweeney, 891

F.3d at 239 (quoting United States v. Gunter, 620 F.3d 642, 646 (6th Cir. 2010)). Thus, the

question “is whether the record makes clear that the sentencing judge listened to each argument,

- 23 - No. 21-5619, United States v. Lanier

considered the supporting evidence, was fully aware of the defendant’s circumstances and took

them into account in sentencing him.” United States v. Gapinski, 561 F.3d 467, 474 (6th Cir.

2009) (quoting Vonner, 516 F.3d at 387) (cleaned up).

Before Lanier’s resentencing, he submitted a table outlining the sentences of over fifty

defendants with similar convictions. Lanier’s elbow counsel further noted at the hearing that “in

every case that I’ve seen, there’s not one that’s more than 240 months, and most are a lot less.”

DE 342, Resent. Tr., Page ID 3065. In acknowledgment, the court simply said, “[a]s I understand

the arguments in the filings and presented here today, that Mr. Lanier issued a proportionality.

There’s also, as I understand it, a disparity argument presented.” Id. at 3077. In its later discussion

of the § 3553(a) factors, the court included “[t]he need to avoid unwarranted sentencing disparities

among defendants with similar records who have been found guilty of similar conduct,” but did

not offer analysis of Lanier’s circumstances as they related to that factor. Id. at 3079.

The district court’s treatment of Lanier’s national disparity argument does not establish

that his sentence was procedurally unreasonable. Although the district court did not specifically

engage with Lanier’s disparity argument, it did reference it before delving into the § 3553(a)

factors. The court went on to analyze the § 3553(a) factors at length, noting information offered

by both the government and Lanier related to those factors. The court also discussed one of the

enhancements to which Lanier objected, acknowledging that it found that issue particularly

challenging. Thus, the court conducted “a meaningful sentencing hearing” and considered

Lanier’s arguments. See Sweeney, 891 F.3d at 239. Further, Lanier’s disparity argument was

conceptually straightforward, and the district court was no doubt familiar with its line of reasoning

and did not need to extensively address it. Simmons, 587 F.3d at 362. Accordingly, on plain error

- 24 - No. 21-5619, United States v. Lanier

review, we hold that the district court’s limited discussion of Lanier’s disparity argument did not

render the sentence procedurally unreasonable.

Next, Lanier’s substantive unreasonableness claim effectively argues that his sentence is

too long. This type of claim asserts that the district court “placed too much weight on some of the

§ 3553(a) factors and too little on others.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir.

2018). We apply a “highly deferential review” to such claims. Id.

Because Lanier’s sentence was within the Guidelines, it is presumptively reasonable. Id.

In his attempt to rebut this presumption, Lanier argues that his sentence “dramatically departs”

from other sentences and that he provided the sentencing court with information showing that no

other sentences with multiple counts exceeded 240 months. CA6 R. 28, Appellant Br., at 41. Thus,

according to Lanier, the district court’s imposition of a 360-month sentence was substantively

unreasonable.

We disagree. First, a national disparity challenge to a within-Guidelines sentence will

typically fail “because the Guidelines . . . address the statutory purpose of combatting disparity.”

United States v. Hymes, 19 F.4th 928, 937 (6th Cir. 2021) (citation and internal quotation marks

omitted). Second, Lanier’s submission of various sentences did not rebut the presumption of

reasonableness that attached to his within-Guidelines sentence because the information was

flawed. The information included state court sentences, omitted information about enhancements

or criminal history category designations, and failed to identify the applicable Guidelines range

for each case. Thus, Lanier has not carried his heavy burden of rebutting the presumption that his

sentence is reasonable.

- 25 - No. 21-5619, United States v. Lanier

VII.

For these reasons, we vacate Lanier’s sentence and remand for resentencing consistent with

this opinion.

- 26 - No. 21-5619, United States v. Lanier

JOHN K. BUSH, Circuit Judge, concurring in part and dissenting in part. I join in the

majority’s well-reasoned opinion except for Section IV, which concerns the vulnerable victim

enhancement. That enhancement has not been waived and should apply on the merits.

As the majority opinion acknowledges, the “government in Lanier’s case never requested

the vulnerable victim enhancement in his original sentencing.” Majority Op. at 17. Nor did the

government request that enhancement in the present sentencing under review. See Appellee Br. at

31. Instead, the probation officer—not the government—recommended the vulnerable victim

enhancement, as Lanier acknowledged in his objection to the presentence investigation report

(PSR). R. 313, PageID 2934. In Lanier’s words: “[t]he, [sic] U.S. Probation Officer asserts,

pursuant to U.S.S.G. § 3A1.1(b)(1), a two-level enhancement for vulnerable victim applies.” Id.

It was unnecessary for the government to argue for the enhancement for the probation

officer to include it in the PSR. The probation office “operat[es] as an arm of the district court,

[and] first creates a presentence investigation report.” Rosales-Mireles v. United States, 138 S. Ct.

1897, 1904 (2018). Probation officers receive their appointment from the district court, and the

district court can remove probation officers from their positions. 18 U.S.C. § 3602(a). Pursuant

to the Federal Rules of Criminal Procedure, probation officers submit the PSR to the district court

before sentencing, and the PRS must “identify all applicable guidelines and policy statements of

the Sentencing Commission.” Fed. R. Crim. P. 32(d)(1)(A). We do not require the government

to affirmatively argue for every enhancement recommended by a PSR. See United States v.

Whitelow, 596 F. App’x 382, 385 (6th Cir. 2015).

The Guidelines regarding actions that qualify for a vulnerable victim enhancement are clear

and apply here. When sentencing a defendant, the district court should apply “adjustments as

- 27 - No. 21-5619, United States v. Lanier

appropriate related to victim, role, and obstruction of justice from Parts A, B, and C of Chapter

Three.” U.S.S.G. § 1B1.1(a)(3) (emphasis added). “Probation officers have traditionally made

such [sentencing] recommendation” to the district court, and while “the sentencing decision is

ultimately one for the judge, we find nothing inappropriate in allowing the probation officer to

give advice to the [district] court.” United States v. Gaines, 888 F.2d 1122, 1123–24 (6th Cir.

1989) (per curiam). The probation office did not overstep its role by recommending the vulnerable

victim enhancement in the PSR because the district court maintained its discretion to accept, reject,

or modify the PSR’s recommendation.

The doctrine of waiver, even if it applied to the government, would not apply to the

probation officer’s recommendation of an enhancement. As the majority opinion observes,

Lanier’s sentencing in this case occurred after a general remand, which allows the “district court

[to] consider de novo any arguments regarding sentencing if the remand order does not limit its

review.” Majority Op. at 16 (quoting United States v. Saikaly, 207 F.3d 363, 369 (6th Cir. 2000)).

The majority then quotes United States v. McKinley, 227 F.3d 716 (6th Cir. 2000), to explain that

“when a party fails to seek review of a district court’s final order, it is barred from reasserting that

issue in any subsequent appeals occurring in that case.” 227 F.3d at 718 (emphasis added)

(citations omitted). The probation officer, which is not a party to the sentencing, recommended

the vulnerable victim enhancement, and the government did not argue for any changes to the PSR

during this sentencing. Even more, the majority does not point to any case where a probation

officer’s recommendation of an enhancement is regarded as the government re-asserting a waived

or forfeited argument.

Further, the government correctly noted that it never waived its argument for the vulnerable

victim enhancement because it never intentionally relinquished or abandoned its known right. See

- 28 - No. 21-5619, United States v. Lanier

United States v. Olano, 507 U.S. 725, 733–34 (1993); Appellee Br. at 31. Nor is forfeiture at issue

because the government did not assert an argument in the first instance here that it could have

raised in a previous sentencing. It was the probation officer who made the recommendation of a

vulnerable victim enhancement, as she was entitled to do.

Further, Lanier was convicted following a jury trial, so the government was not bound by

a plea agreement regarding sentencing arguments. But even if the government were bound, the

probation officer still would have been free to recommend the enhancement. The government

often waives potential sentencing arguments when reaching a plea agreement with a defendant.

See United States v. Logan, 542 F. App’x 484, 489 (6th Cir. 2013). But in the context of

stipulations resulting from a plea agreement, this court reasoned that the “probation officer

operates under the supervision of the [district] court, not the U.S. Attorney,” so “the probation

officer is no more bound by the stipulations than is the [district] court itself.” Gaines, 888 F.2d at

1124 n.3 (citation omitted). So when the government agreed not to recommend or request

sentencing enhancements because of a plea agreement, the probation office’s recommendation of

an enhancement was not attributable to the government even though the government provided

factual information to the probation office that led to the enhancement being suggested. United

States v. Moncivais, 492 F.3d 652, 664–65 (6th Cir. 2007). These cases underscore that the

government’s action, or inaction in this case, during a previous sentencing are not the actions of

the probation officer and vice versa.

In short, the district court was entitled to accept the probation officer’s recommendation of

a vulnerable victim enhancement. It simply did not matter whether the government argued for that

enhancement.

- 29 - No. 21-5619, United States v. Lanier

The vulnerable victim enhancement requires a two-level increase “[i]f the defendant knew

or should have known that a victim of the offense was a vulnerable victim,” and that enhancement

should apply on the merits here, even if reviewed for abuse of discretion. U.S.S.G. § 3A1.1(b)(1).

A vulnerable victim is “a victim of the offense of conviction and any conduct for which the

defendant is accountable . . . who is unusually vulnerable due to age, physical or mental condition,

or who is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1 cmt. app.

n.2 (emphasis added).

The PSR stated that four children were present during the robbery from Count 3 of Lanier’s

conviction. The children were two, five, seven, and eight years old. Id. According to testimony

at trial, the perpetrators forced entry into the home while pointing a gun at the victims, which the

children visibly reacted to before panicking and becoming frantic. Then, one of the men forced

the children into a bedroom in the home, separating them from the adults, and kept them in the

bedroom throughout the robbery.

This court has held that, for this enhancement, “victim” is broadly interpreted and includes

“someone ‘harmed by a crime.’” United States v. Webster, 615 F. App’x 362, 364 (6th Cir. 2015)

(quoting Black’s Law Dictionary 1798 (10th ed. 2014)). The victim must only suffer “an

individualized ‘harm’ distinct from injury to society at large.” Id. Witnessing a forced entry of a

home at gunpoint, before being corralled into and held within a bedroom, qualifies as a distinct

injury because the emotional and psychological harm these vulnerable victims experienced would

not be suffered by society at large. And the Guidelines do not require the victims to be targeted

because of their vulnerability. United States v. Brawner, 173 F.3d 966, 973 (6th Cir. 1999). So

the facts of the robbery allow for a vulnerable victim enhancement in line with the Guidelines.

- 30 - No. 21-5619, United States v. Lanier

This court has affirmed vulnerable-victim enhancements in cases with similar facts before.

See United States v. McCaster, 333 F. App’x 970, 974 (6th Cir. 2009); see also United States v.

Myree, 89 F. App’x 565, 566–67 (6th Cir. 2004). Thus the district did not err when including the

vulnerable victim enhancement at Lanier’s sentencing.

I therefore would affirm the district court’s judgment regarding the vulnerable victim

- 31 -