United States v. Curtis Rhine

637 F.3d 525, 2011 U.S. App. LEXIS 6477, 2011 WL 1143251
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 30, 2011
Docket10-10037
StatusPublished
Cited by50 cases

This text of 637 F.3d 525 (United States v. Curtis Rhine) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Curtis Rhine, 637 F.3d 525, 2011 U.S. App. LEXIS 6477, 2011 WL 1143251 (5th Cir. 2011).

Opinions

EDITH H. JONES, Chief Judge:

Curtis Oneal Rhine pled guilty to one count of possession with intent to distribute cocaine base and one count of being a felon in possession of a firearm. After calculating a sentencing range of 30 to 37 months under the United States Sentencing Guidelines (“Guidelines”), the district court sentenced Rhine to 180 months in prison, reasoning that the higher sentence was appropriate in light of Rhine’s past involvement with a drug-trafficking organization. Because the district court adhered to correct sentencing procedure and imposed a sentence that is substantively reasonable, we affirm its non-Guidelines sentence.

A police officer stopped Curtis Oneal Rhine for a traffic violation on October 24, 2007. After Rhine admitted to smoking marijuana, the officer took him into custody. A search of Rhine’s vehicle uncovered two firearms under the driver’s seat, and a search of Rhine’s person revealed a bag containing 1.89 grams of crack cocaine.

Seventeen months earlier, in an investigation focused on Crips gang members, the FBI had indicted more than 30 people involved in a drug-trafficking ring dubbed the “Fish Bowl.” Reports from the FBI [527]*527and the Fort Worth Police Department indicated that Rhine was connected with the Fish Bowl, though he escaped prosecution because the FBI never caught him in the act of selling drugs. Mindful of these reports, the probation officer concluded that Rhine’s current possession was part of the same course of conduct as the Fish Bowl activities. She therefore concluded that Rhine was responsible for distributing at least 4.5 kilograms of crack cocaine. This conclusion resulted in an increased offense level under the Guidelines and, in light of Rhine’s criminal history, a sentencing range of 292-365 months. The district court imposed a sentence of 360 months, and Rhine appealed to this court, arguing that the offenses to which he pled guilty were not part of a “common scheme” or “course of conduct” encompassing the Fish Bowl activities. This court agreed and remanded the case for re-sentencing. United States v. Rhine (“Rhine I”), 583 F.3d 878, 891 (5th Cir.2009).

On remand, the probation officer computed a new Guidelines range of 30-37 months, reflecting a lower offense level. The district court, however, imposed consecutive terms of 120 months for the drug offense and 60 months for Rhine’s firearm offense. In explaining the 180-month sentence, the coxxrt stated the following:

Well, I’m convinced that a reasonable sentence in this case is one that would take into account his prior similar drug conduct, the drug activities that he engaged in that “Fish Bowl” area that was mentioned in the presentence report. And for that activity to be taken into account, the sentence would have to be somewhat above the top of the advisory guideline range.
Considering all of the factors the Court is to consider under [18 U.S.C. § 3553(a)], I’ve concluded that a sentence that would aggregate a total of 180 months would be a sentence that would be required to address the defendant’s history and criminal conduct.
.... [A] sentence of at least that much would be required[ ] to adequately reflect the seriousness of the offense conduct, to promote respect for the law, provide just punishment for the offense, to afford adequate deterrence for future criminal conduct, and to protect the public from further crimes of the defendant.
And if you viewed it from the standpoint of a guidelines sentence, and I don’t think you need to, the sentence I’ve imposed should appropriately be viewed as a variance and would be a reasonable sentence if viewed that way.
If viewed from the standpoint of the sentencing guidelines, departure under the guidelines, the reasons given by the probation officer ... in my view are appropriate to justify the sentence I’ve imposed as a guideline requirement.

In the Statement of Reasons (SOR), the district court again treated the sentence as both a non-Guidelines sentence and as a departure under the Guidelines. The court checked a box on the SOR form indicating that “[t]he coxxrt imposes a sentence outside the advisory sentencing guidelines system,” but it proceeded to complete a section of the SOR, Section V, relating to Guidelines-authorized departures.

Rhine appeals his sentence.

Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “appellate review of sentencing decisions is limited to determining whether they are ‘reasonable’ ” under the “familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007). Reasonableness has two parts: procedural and substantive reasonable[528]*528ness. The former requires that the district court calculate the Guidelines range, consider the § 3553(a) factors, and explain the sentencing decision; the latter depends on “the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. at 51, 128 S.Ct. 586.

As a preliminary matter, we hold that the district court imposed a non-Guidelines sentence. Appellant would create confusion on this point by focusing on the court’s suggestion that the sentence is also defensible as a variance or departure under the Guidelines. Even those comments, however, reveal the court’s principal intention to impose a non-Guidelines sentence. In stating that “if you viewed it from the standpoint of a guidelines sentence, and I don’t think you need to ... ”, the district court showed that its purpose was to sentence outside the Guidelines while offering the backup justification that the sentence passes muster even if the Guidelines apply. Likewise, the district court’s decision to complete Section V of the SOR presents an alternative justification for the sentence as well as the district court’s desire to indicate which factors in § 3553(a) influenced its decision, an option available only in Section V. The court also checked option D under Section IV, indicating “a sentence outside the advisory sentencing guideline.” We are persuaded here that the district court clearly intended primarily to sentence Rhine outside the Guidelines framework.

A. Procedural Reasonableness

Gall requires the sentencing court to begin its work by calculating the applicable Guidelines range. 552 U.S. at 49, 128 S.Ct. 586. Failure to do so eliminates “a necessary factor in determining reasonableness.” United States v. Gutierrez-Hernandez, 581 F.3d 251, 256 (5th Cir.2009). Other procedural errors include “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.” Gall, 552 U.S. at 51, 128 S.Ct. 586.

In the present case, the district court computed the correct Guidelines range of 30-37 months for a category IV criminal history and a total offense level of 15.

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Bluebook (online)
637 F.3d 525, 2011 U.S. App. LEXIS 6477, 2011 WL 1143251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-curtis-rhine-ca5-2011.