United States v. Gregory Scott Sizemore

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 10, 2024
• Docket: 24-5184
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0510n.06

No. 24-5184

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Dec 10, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE EASTERN ) GREGORY SCOTT SIZEMORE, DISTRICT OF KENTUCKY ) Defendant-Appellant. ) OPINION ) )

Before: SUTTON, Chief Judge; BUSH and MURPHY, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Gregory Sizemore pleaded guilty to two charges related

to drug dealing. The parties agree that the applicable sentencing range under the U.S. Sentencing

Guidelines was 360 months to life imprisonment. The district court sentenced Sizemore to 389

months’ imprisonment, incorporating an initial sentence of 420 months less 31 months time served.

Sizemore makes one contention on appeal, that the district court did not properly consider

the guidelines range. He believes the district court impermissibly modified the guidelines range

by setting the bottom end of the range at 420 months instead of 360 months’ imprisonment.

Sizemore grounds his claim in the district court’s statement that “under the facts that are presented

here, when I look at comparable sentences, my starting point is 420 months.” Transcript of

Sentencing Hearing, R. 61, PageID 255.

Sizemore did not object to this alleged procedural error at sentencing. A defendant

“generally forfeits the right to challenge on appeal any procedural errors to which he did not object No. 24-5184, United States v. Sizemore

at the time of sentencing.” United States v. Herrera-Zuniga, 571 F.3d 568, 578 (6th Cir. 2009).

To preserve his argument, Sizemore’s counsel, Mr. Abell, needed at sentencing to give a “clear

articulation of any objection and the grounds therefor.” United States v. Bostic, 371 F.3d 865, 873

(6th Cir. 2004). Sizemore argues Abell did so in the following exchange:

MR. ABELL: I would hope the Court would conclude that a sentence of 329 months reconciles the factors under 3553(a)(2). It’s certainly a lengthy sentence.

THE COURT: Does that diminish the death that’s occurred in this case as a result of this defendant’s actions?

MR. ABELL: It does not, Your Honor. That factor is accounted for in the guidelines calculation. I think that’s a determination that’s committed to the Court’s judgment and discretion. I know it’s very disturbing to the Court and, frankly, to all of us, but I think that’s been accounted for.

R. 61, PageID 246.

Mr. Abell did not do enough here to preserve the issue. This conversation happened before

the district court said anything about 420 months. While it is possible that a defendant could

preserve an argument before the district court addresses the underlying point, nothing above

specifically focused on this alleged error. Mr. Abell’s words are best read as an argument for why

the bottom of the guidelines range would be the appropriate sentence. It is implausible to read

them as an objection to the district court’s understanding of the guidelines range in the first

instance. Therefore, we review for plain error. See Herrera-Zuniga, 571 F.3d at 579.

It would be procedurally unreasonable for the district court to sentence Sizemore using an

improperly calculated guidelines range. See United States v. Osborn, 12 F.4th 634, 638 (6th Cir.

2021). Sizemore believes the judge changed the agreed 360 months baseline to 420 months,

creating an improperly calculated range.

But the district court did not change the baseline number—it thoughtfully considered and

rejected it as the basis for a final sentence. The district court said, “I begin with the properly

2 No. 24-5184, United States v. Sizemore

calculated guideline range in the case of 360 to life.” R. 61, PageID 252. It then considered a

handful of sentencing factors to arrive at a sentence of 420 months. The court found that

Sizemore’s addiction history was an aggravating factor and that he had a high risk of recidivism.

The court also considered providing a just punishment after Sizemore caused a death and continued

to deal drugs. Finally, the court discussed the need for general and specific deterrence. Only after

weighing these factors did the district say, “my starting point is 420 months.” R. 61, PageID 255.

When read in context, it is clear that “starting point” referred to the district court’s final

sentence before incorporating time served, not the beginning of the whole analysis. Soon after

saying “my starting point is 420 months,” the court elaborated by saying, “the judgment will reflect

my starting point of 420 months for a period of incarceration reduced by 31 under 5G1.3, and that

would get us down to 389 months period of incarceration,” reflecting Sizemore’s time served in

custody. Id. at PageID 256. In a prior colloquy, the prosecutor said, “the starting point, at least

for the United States, is 480 months. And if there’s an adjustment for time spent in state custody,

I think that would put him at 442 months . . . and that would be the sentence that the United States

would advocate for.” Id. at PageID 251–52. Given that the district court also discussed “starting

point” closely to credit for time served, the district court likely meant it in the same sense that the

prosecutor did.

Sizemore does not meet his burden under plain error review of showing that the district

court applied a guidelines range with an improper baseline of 420 months. The record suggests

the district court properly accounted for the agreed upon sentencing range of 360 months to life

imprisonment and found that 420 months was sufficient, but not greater than necessary to satisfy

the sentencing factors of 18 U.S.C. § 3553.

We AFFIRM Sizemore’s sentence.