United States v. Gallatin

207 F. App'x 623
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 7, 2006
Docket05-4603
StatusUnpublished

This text of 207 F. App'x 623 (United States v. Gallatin) 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. Gallatin, 207 F. App'x 623 (6th Cir. 2006).

Opinion

SUTTON, Circuit Judge.

Gregory Gallatin pleaded guilty to two marijuana-distribution charges, after which the court imposed a 110-month sentence. In the aftermath of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Gallatin received a second sentencing hearing. At this hearing, the district court properly acknowledged the advisory nature of the guidelines, correctly calculated Gallatin’s guidelines range, adequately considered the § 3553(a) factors and imposed the same sentence. Because this second sentence is both procedurally and substantively reasonable, we affirm.

I.

On December 1, 2000, DEA agents arrested Kevin Mueller and seized 55 pounds of marijuana from him. Soon after the arrest, Mueller cooperated with the agents and told them that Gallatin was his marijuana source.

Relying on Mueller’s tip, the agents obtained a search warrant for Gallatin’s residence. During the search of Gallatin’s home, the agents seized 110 pounds of marijuana, a number of scales, a loaded handgun and other items that are frequently utilized in drug trafficking.

In August 2001, Gallatin pleaded guilty to one count of conspiracy to distribute marijuana, see 21 U.S.C. § 846, and one count of possession of marijuana with intent to distribute, see id. § 841(a)(1). On July 29, 2002, the district court sentenced Gallatin to a 110-month prison term. A panel of this court affirmed his sentence. United States v. Gallatin, 88 Fed.Appx. 54 (6th Cir.2004).

The Supreme Court granted Gallatin’s certiorari petition, vacated the judgment and remanded the case for reconsideration in light of Booker. Gallatin v. United States, 543 U.S. 1110, 125 S.Ct. 1045, 160 L.Ed.2d 1042 (2005). The district court imposed a 110-month prison sentence on remand.

II.

Under Booker, we review sentences for procedural and substantive reasonableness. So long as the trial court appreciates the advisory nature of the guidelines, calculates the guidelines’ recommendation correctly and considers the § 3553(a) factors in exercising its independent judgment about what sentence to impose, it satisfies the procedural requirements of review. United States v. McBride, 434 F.3d 470, 476 (6th Cir.2006). If the court then imposes a substantively reasonable sentence, United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005), we will uphold it.

The district court satisfied these modest requirements. First, it correctly applied the guidelines in determining a sentencing range of 110 to 137 months.

Second, it adequately considered the § 3553(a) factors. Addressing the “history *626 and characteristics of the defendant,” see 18 U.S.C. § 3553(a)(1), it noted that Gallatin had “a lengthy criminal history record,” JA 333. Discussing the “need for the sentence ... to reflect the seriousness of the offense,” see § 3553(a)(2)(A), it observed that Gallatin’s crime involved “a lot, a very lot of marijuana,” JA 333, that such an amount was for a “dealer,” id., that he was “storing all of this marijuana at [his] house with [his] children in the house,” JA 344, and that “marijuana is very destructive,” JA 345. Reflecting on the “need for the sentence ... to afford adequate deterrence to criminal conduct,” see § 3553(a)(2)(B), and “to protect the public from further crimes of the defendant,” see § 3553(a)(2)(C), it noted that the sentence would “adequately deter future criminal conduct” by the defendant, JA 345. Considering the guidelines’ goal of sentencing uniformity, see § 3553(a)(6), it observed that a guidelines sentence has the virtue of “treating] everybody about the same unless there’s some ... reason to deviate either under the rules or under 3553(a),” JA 344. Factoring rehabilitation into the equation, see § 3553(a)(2)(D), it ensured that the circumstances of his remaining confinement would further that goal, see JA 346-48. In the end, while the district court did not mention every § 3553(a) factor by name, it provided “sufficient evidence in the record to affirmatively demonstrate the court’s consideration” of the § 3553(a) factors, McBride, 434 F.3d at 475 n. 3, which is all that we require because “the ritual incantation of the factors” has never been demanded “to affirm a sentence,” United States v. Johnson, 403 F.3d 813, 816 (6th Cir.2005) (internal quotation marks omitted).

Third, the district court understood the advisory nature of the guidelines. See JA 344 (“We’re no longer bound to follow the guidelines. They’re only advisory. They’re not mandatory.”).

Having satisfied these procedural requirements, the district court opted to give a within-guidelines sentence. The resulting 110-month sentence — well below the statutory maximum of 20 years — represented the low end of the guidelines range. And “there is nothing in the record which suggests that the district court’s sentencing determination was unreasonable.” Webb, 403 F.3d at 384. On this record, the district court imposed a procedurally and substantively reasonable sentence.

Attempting to alter this conclusion, Gallatin argues that the district court: (1) “violated [his] Sixth Amendment rights by imposing a sentence that was based on facts that were not established ... when it found that [he] was responsible for 609 pounds of marijuana”; (2) “violated [his] Sixth Amendment rights by imposing a sentence that was based on facts that were not established ... when it found [him] to be a supervisor in the conspiracy”; (3) “erred by not reducing [his] base offense level by 2 points for being a ‘minor participant’”; (4) “erred by placing [him] in a criminal history category of VI, when [that] calculation unnecessarily overstated his criminal history”; and (5) “erred by not reducing [his] sentence due to post-conviction rehabilitation.” Br. at 2-3. We disagree.

Neither the district court’s 609-pounds-of-marijuana finding nor its finding that Gallatin played a supervisory role in the conspiracy implicates Gallatin’s Sixth Amendment rights. Once courts treat the guidelines “as advisory provisions,” the use of “the [guidelines as currently written” does “not implicate the Sixth Amendment.” Booker, 543 U.S. at 233, 125 S.Ct. 738. A prior panel of this court, it bears adding, rejected Gallatin’s challenges to the evidentiary support for these findings. See Gallatin, 88 Fed. *627 Appx.

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Related

United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
Gallatin v. United States
543 U.S. 1110 (Supreme Court, 2005)
United States v. Bernard Chester Webb
403 F.3d 373 (Sixth Circuit, 2005)
United States v. John Anthony Dickson Johnson
403 F.3d 813 (Sixth Circuit, 2005)
United States v. Martece Puckett
422 F.3d 340 (Sixth Circuit, 2005)
United States v. James Thomas McBride
434 F.3d 470 (Sixth Circuit, 2006)
United States v. Gallatin
88 F. App'x 54 (Sixth Circuit, 2004)

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Bluebook (online)
207 F. App'x 623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gallatin-ca6-2006.