United States v. Denny

653 F.3d 415, 2011 U.S. App. LEXIS 16410, 2011 WL 3477110
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 10, 2011
Docket09-6029
StatusPublished
Cited by54 cases

This text of 653 F.3d 415 (United States v. Denny) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Denny, 653 F.3d 415, 2011 U.S. App. LEXIS 16410, 2011 WL 3477110 (6th Cir. 2011).

Opinion

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

David Denny pled guilty to one count of uttering a counterfeited security, in violation of 18 U.S.C. § 513(a). He now appeals his sentence of sixty months’ imprisonment on both procedural and substantive grounds. For the reasons explained below, we affirm his sentence.

I.

In late April 2005, Daniel Pate, a Tennessee resident, placed an advertisement in a local newspaper offering his Chevrolet Corvette for sale. Denny, using the fictitious name Tom Williams, contacted Pate and arranged a meeting in order to inspect the car. The two met on April 29, 2005, and after some time, Pate agreed to sell the car to Denny for $12,000. Denny produced a cashier’s check for that amount and gave it to Pate as payment. When Pate sought to deposit the cashier’s check, he discovered it was fraudulent. He then reported the theft of his vehicle to the local police. Law enforcement eventually identified Denny as being involved in this incident and a string of similar thefts in January 2007. Denny admitted to participating in an automobile theft ring and in the fraudulent buying and selling of twenty-five vehicles in five states.

After being indicted on three counts of uttering a counterfeited security in violation of 18 U.S.C. § 513(a), Denny agreed to plead guilty to one count of uttering a counterfeited security — that involved with the theft of the Corvette — in August 2008. As part of his plea, Denny also admitted to uttering two other counterfeit checks, one for $17,000 and the other for $10,500, in order to steal two cars. The presentence report (“PSR”) assessed a total offense level of 13 and a criminal history category VI. The district court, however, eventually found that Denny’s criminal history was overstated and reduced the criminal history to a category V; it also reassessed the total offense level and found it to be 12. With these adjustments, the sentencing guidelines recommended a sentence of 27 to 33 months’ imprisonment.

At a sentencing hearing in August 2009, however, the district court ultimately imposed a sentence of 60 months’ imprisonment. The court explained that it felt the Guidelines did not reflect the seriousness of the crime in this case. The court explained:

The defendant took basically three people’s cars. Cars ... represent a great investment to people, as evidenced by the statement of Mr. Pate. And the circumstances of this offense are such that it was particularly damaging to the victims. And I don’t think that, given the amounts involved and the way in which the subsequent sales were taking place, in which this defendant was a central figure, that the guideline sentence represents a reasonable sentence.

After the court notified Denny of the 60-month sentence, defense counsel objected on the grounds that the sentence constituted an upward departure for which the court had given counsel no notice. The district court responded, “As I understand case law, you no longer have to give advance notice of upward departure, because the guidelines are advisory.” The government’s attorney then interjected to propose that “this is a variance within the discretion [of] the Court under section 3553 as opposed to a departure”; the district court agreed, explaining its decision was “not a departure under the guidelines.”

*419 After the sentencing hearing, the district court filed a sealed, standard-form Statement of Reasons. In the Statement of Reasons, the district court reiterated that it “impose[d] the sentence above the guideline range because of the nature of the defendant’s crime against the victims and the seriousness of that offense is not properly reflected in the guideline calculation ____The criminal activity and evidence here indicates the defendant’s actions were particularly damaging to the victims.” In filling out the section entitled “Departure,” however, the report checked the box next to the statement “[t]he sentence departs above the guideline range for the following reasons.” In the subsection entitled “Reason(s) for Departure,” two boxes were checked: one beside “5K2.0 Aggravating or Mitigating Circumstances,” and a second next to “5K2.5 Property Damage or Loss.”

This appeal followed. Because Denny was charged with federal crimes, the district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court’s review of a sentence is authorized under 18 U.S.C. § 3742. Additionally, we possess jurisdiction over the district court’s final order pursuant to 28 U.S.C. § 1291.

II.

The first issue on appeal is whether the district court’s imposition of a sentence higher than that recommended by the Sentencing Guidelines constituted a “departure” or a “variance.” Because this is a question of law, we consider the issue de novo.

Under Rule 32(h) of the Federal Rules of Criminal Procedure, a district court must notify the defendant of an intention to depart from the Guidelines. 1 However, in Irizarry v. United States, the Supreme Court held that Rule 32(h)’s notice provision does not apply when the district court chooses to apply a “variance” from the Guidelines range based on the sentencing factors of 18 U.S.C. § 3553(a). 553 U.S. 708, 714-16, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008). This court has explained the difference between a departure and variance:

“Departure” is a term of art under the Guidelines and is distinct from “variance.” A Guidelines “departure” refers to the imposition of a sentence outside the advisory range or an assignment of a criminal history category different than the otherwise applicable category made to effect a sentence outside the range. Importantly, a departure results from the district court’s application of a particular Guidelines provision, such as § 4A1.3 or § 5, Part K A “variance” refers to the selection of a sentence outside of the advisory Guidelines range based upon the district court’s weighing of one or more of the sentencing factors of § 3553(a). While the same facts and analyses can, at times, be used to justify both a Guidelines departure and a variance, the concepts are distinct.

United States v. Grams, 566 F.3d 683, 686-87 (6th Cir.2009) (per curiam) (citations omitted). Given the similarities between the two procedures, however, it behooves a district court to indicate clearly whether it is “departing” or “varying” when it elects to deviate from the sentencing guidelines. See United States v. Stewart, 628 F.3d 246

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653 F.3d 415, 2011 U.S. App. LEXIS 16410, 2011 WL 3477110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-denny-ca6-2011.