United States v. James Malloy

369 F. App'x 697
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 17, 2010
Docket08-2257
StatusUnpublished

This text of 369 F. App'x 697 (United States v. James Malloy) 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. James Malloy, 369 F. App'x 697 (6th Cir. 2010).

Opinions

SILER, Circuit Judge.

James C. Malloy was initially sentenced to serve 150 months’ imprisonment on his conviction for being a felon in possession of a firearm, but we reversed his sentence and remanded his case for re-sentencing, because the district court’s application of the Armed Career Criminal Act (“ACCA”) to Malloy was erroneous. On remand, the district court downwardly departed from the Sentencing Guidelines to sentence Mal-loy to 88 months’ imprisonment. Malloy now challenges both the procedural and substantive reasonableness of that sentence. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a plea agreement, Malloy pled guilty to being a felon in possession of a firearm on one count of a five-count indictment in 2007. The plea agreement [699]*699included an “agreed” Guideline range of 180-210 months, but left open the issue of whether Malloy should be sentenced to a mandatory minimum of 15 years pursuant to the ACCA, 18 U.S.C. § 924(e). The Presentence Report (“PSR”) calculated Malloy’s offense level to be 26. The PSR increased this offense level to 80 based on the operation of the ACCA.

Malloy urged the district court at sentencing that his prior state court convictions were not violent felonies which subjected him to the ACCA. The district court rejected this argument, determined Malloy’s Sentencing Guideline range to be 180 to 210 months, and sentenced him to 150 months’ imprisonment, which was below his Guideline range, based on his substantial assistance to the government as stated in the government’s § 5K1.1 motion. We reversed the district court’s judgment and remanded for re-sentencing.

On re-sentencing, Malloy argued that a sentencing variance was warranted based on Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), which allows courts to consider whether Guidelines provisions fail to properly reflect § 3553(a) considerations or reflect unsound judgment, id. at 351, 127 S.Ct. 2456 and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which allows a district court to refuse to apply any Guideline which it determines lacks a sound rationale, id. at 109-10, 128 S.Ct. 558. Specifically, Malloy argued that the two firearms enhancements he was subjected to — based on the involvement of three to seven stolen firearms — were not based on empirical evidence and should not be applied to him. The district court rejected this argument. The district court also rejected Malloy’s renewed argument regarding the need to avoid sentence disparity between him and a codefendant. Finally, Malloy urged the district court to consider the extent of his cooperation with the government, which the district court considered by granting him a 20% downward departure from the otherwise applicable Guideline range. The district court calculated Malloy’s Guideline range to be 110 to 120 months, granted the 20% departure, reducing the range to 88 to 96 months, and sentenced Malloy at the low-end of that range — 88 months’ incarceration to run concurrently with the state sentence Malloy was serving at the time. Malloy now appeals this second sentence.

DISCUSSION

We review the district court’s sentence for reasonableness. Gall v. United States, 552 U.S. 38, 46-50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see United States v. Collington, 461 F.3d 805, 808 (6th Cir.2006). Malloy challenges both the procedural and substantive reasonableness of his sentence.

I. Procedural Reasonableness

Malloy argues that the sentence is procedurally unreasonable because the district court failed to adequately explain its reasons for imposing the particular sentence and failed to expressly address Malloy’s level of cooperation with the government when imposing the sentence. For a sentence to be procedurally reasonable the district court must properly calculate the applicable Guidelines range and consider all of the factors listed in 18 U.S.C. § 3553(a); then it must adequately explain the chosen sentence to allow for meaningful appellate review. Gall, 552 U.S. at 49-50, 128 S.Ct. 586. Because Malloy did not object on these bases at the district court level when specifically asked if he had any objections, our review is for plain error only. United States v. Vonner, 516 F.3d 382, 391 (6th Cir.2008).

First, the district court gave reasons for Malloy’s sentence. While the dis[700]*700trict court’s explanation was brief, even brief sentencing explanations can be sufficient. See Rita, 551 U.S. at 345-47, 127 S.Ct. 2456. Furthermore, “[t]he appropriateness of brevity or length, conciseness or detail ... depends upon the circumstances.” Id. at 356, 127 S.Ct. 2456. In these circumstances the district court’s explanation of its sentence was sufficient. It indicated that it considered Malloy’s arguments, and Malloy did not object to its explanation at the time. In addition, the same district court sentenced Malloy both times, meaning that it considered the § 3553(a) factors twice in Malloy’s case. While our reversal of the initial sentence impacted the Guideline range and sentences available, it did not change the nature or characteristics of the offense or offender, nor did it change the need for the sentence to reflect the basic aims of sentencing, the Sentencing Commission’s policy statements, or the need for restitution. See 18 U.S.C. § 3553(a); Rita, 551 U.S. at 347-48, 127 S.Ct. 2456. Furthermore, the district court considered Mal-loy’s arguments regarding unwarranted sentence disparities at each sentencing. It also considered Malloy’s parole determination, which occurred after the initial sentencing, and sentenced Malloy to serve a term of imprisonment concurrently with, not consecutively to, the time he serves for his parole violation.

The district court also considered Mal-loy’s cooperation and explained that the 20% departure was appropriate. We do not ordinarily have jurisdiction to evaluate the appropriateness of a § 5K1.1 departure. United States v. Ridge, 329 F.3d 535, 541 (6th Cir.2003). “Whether and to what extent to grant a section 5K1.1 motion rests within the discretion of the sen-fencing court.” United States v. Rosenbaum, 585 F.3d 259, 264 (6th Cir.2009). The district court relied on the prosecution’s recommendation when reducing Mal-loy’s sentencing range by 20%, and this reliance was appropriate because the prosecution was in the best position to determine the significance of Malloy’s assistance.

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Related

Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Kimbrough v. United States
552 U.S. 85 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
In Re Sealed Case
527 F.3d 188 (D.C. Circuit, 2008)
United States v. Andre Scott Wheeler
330 F.3d 407 (Sixth Circuit, 2003)
United States v. Bernard Chester Webb
403 F.3d 373 (Sixth Circuit, 2005)
United States v. Myrisa v. Lewis
424 F.3d 239 (Second Circuit, 2005)
United States v. Tony Richardson
437 F.3d 550 (Sixth Circuit, 2006)
United States v. Roger D. Blackwell
459 F.3d 739 (Sixth Circuit, 2006)
United States v. Samuel F. Collington
461 F.3d 805 (Sixth Circuit, 2006)
United States v. Rosenbaum
585 F.3d 259 (Sixth Circuit, 2009)
United States v. Crowell
493 F.3d 744 (Sixth Circuit, 2007)
United States v. Vonner
516 F.3d 382 (Sixth Circuit, 2008)
United States v. Blackie
548 F.3d 395 (Sixth Circuit, 2008)
United States v. Simmons
587 F.3d 348 (Sixth Circuit, 2009)
United States v. Gapinski
561 F.3d 467 (Sixth Circuit, 2009)
United States v. Conatser
514 F.3d 508 (Sixth Circuit, 2008)
United States v. Sexton
512 F.3d 326 (Sixth Circuit, 2008)
United States v. Studabaker
578 F.3d 423 (Sixth Circuit, 2009)

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369 F. App'x 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-malloy-ca6-2010.