United States v. John Kennedy

683 F. App'x 409
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 22, 2017
Docket15-1456
StatusUnpublished
Cited by7 cases

This text of 683 F. App'x 409 (United States v. John Kennedy) 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. John Kennedy, 683 F. App'x 409 (6th Cir. 2017).

Opinions

OPINION

KAREN NELSON MOORE, Circuit Judge.

After a successful challenge to his initial sentence, John Robert Kennedy brings this second appeal challenging his sentence for manufacturing and possessing a destructive device. In our initial remand, we instructed the district court to consider Kennedy’s argument for a downward variance. Because nearly two years had passed since his original sentencing, Kennedy on remand raised additional arguments regarding his postsentence rehabilitation efforts. The district court, without reference to these rehabilitation efforts, imposed the same 108-month sentence. Kennedy now argues that his sentence is procedurally and substantively unreasonable, and requests that we again vacate his sentence [411]*411and remand for resentencing. We VACATE the sentence and REMAND for resentencing in light of this opinion.

I, BACKGROUND

In 2011, an employee of a hardware store in Trenton, Michigan observed a large cloud of smoke in the store’s parking lot after a customer reported hearing an explosion. Although no one was physically harmed, police launched an investigation into the explosive device, and uncovered an array of evidence linking Kennedy to that device, as well as another non-explosive device discovered at a nearby high school.

A grand jury indicted Kennedy on six counts charging manufacture and placement of an explosive device. United States v. Kennedy, 578 Fed.Appx. 582, 584 (6th Cir. 2014). He pleaded guilty to two of those charges, and was later convicted of three additional charges. Id. The Presentence Report (“PSR”) calculated Kennedy’s guidelines range under the U.S. Sentencing Guidelines to be 87 to 108 months of imprisonment, PSR at ¶ 81, This was based on a base offense level of twenty-two under USSG § 2K2.1(a)(3), a two-level increase for a destructive device under USSG § 2K2.1(b)(3), and a four-level firearm enhancement under USSG § 2K2.1(b)(6)(B). Id. at ¶¶ 29-31.

At his first sentencing hearing, Kennedy argued that his prior convictions doubly penalized him by increasing his base offense and criminal history levels, and he asked the district court to consider a lower guidelines range. R. 68 (Sentencing H’rg Tr. at 16) (Page ID #1244). The district court rejected Kennedy’s request "without explanation, and sentenced Kennedy to 108 months of imprisonment. Id. at 27-28 (Page ID #1255-56). On appeal, we found that the district court had failed to address Kennedy’s nonfrivolous argument and explain the basis for rejecting it. Kennedy, 578 Fed.Appx. at 595. We therefore vacated Kennedy’s sentence and remanded to the district court “for consideration of a downward variance in light of the potential double counting.” Id.

On remand, Kennedy again requested a downward variance based on double counting. R. 83 (Resentencing Mem. at 2) (Page ID #1353). Although he admitted that the guidelines permit double counting, he argued that “doing so in a case like this creates an unduly harsh outcome,” id. because the destructive device at issue was not particularly dangerous and did not harm anyone, id. at 3 (Page ID #1354).

Because nearly two years had passed since his first sentencing, Kennedy, citing Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), also presented a new argument for a downward variance based on his postsentencing rehabilitation efforts in prison. R. 83 (Resentencing Mem. at 5-6) (Page ID #1356-57). In support of his argument, Kennedy pointed to his enrollment in the Inmate Financial Responsibility Program and his participation in numerous inmate jobs that have enabled him to pay his financial penalties and learn trade skills. Id. at 6-7 (Page ID #1357-58). He also pointed out that he had no disciplinary record, and that he had managed to maintain strong relationships with his family while incarcerated. Id. at 6-8 (Page ID #1357-59).

Kennedy also enrolled in a Rational Thinking Course, an adult continuing education program called “Self-Awareness, Character, Opportunity, Reliability and Extraordinary Effort” (“SCORE”), and other courses in computer training, health and wellness, and weight management wellness. Id. at 7 (Page ID #1358). At the resentencing hearing, his attorney argued that “[fit’s something that we don’t always see with defendants, but Mr. Kennedy I [412]*412think really has made a sincere effort to get at some of the underlying psychological issues that may have led him to this place today, and ... the [c]ourt ought to consider that in fashioning a sentence that is sufficient but not greater than necessary to punish him for these crimes.” R. 89 (Resentencing H’rg Tr. at 7) (Page ID #1406).

At the conclusion of the resentencing hearing, Kennedy testified about his changed attitude since his initial sentencing. Id. at 15-16 (Page ID #1414-15) (“IVe made mistakes, your Honor, serious mistakes, but I have learned from them and become a better person for it ... the prison has given me some tools that I desperately needed. I now can think through the difficult decisions instead of brash decisions which led me to have these negative consequences.”). In response, the prosecution argued that the court should not consider Kennedy’s postsentencing rehabilitation efforts because they were not truly voluntary, and that he was required to undertake such efforts because he was incarcerated. Id. at 12 (Page ID #1411).

On April 14, 2015, the district court imposed the same 108-month sentence on Kennedy, holding that double counting in this case was “not unduly harsh,” particularly-given the “very high degree of risk to the public welfare.” R. 84 (Resentencing Order at 2) (Page ID #1384). The district court did not address Kennedy’s rehabilitation argument. Kennedy filed a timely notice of appeal on April 21, 2015.

During the pendency of this appeal, we held in United States v. Pawlak, 822 F.3d 902, 907 (6th Cir. 2016), that the residual clause of the career offender sentencing guideline, USSG § 4B1.2(a), was unconstitutionally vague. Kennedy subsequently filed a supplemental brief requesting a reduced guidelines range in light of our holding in Pawlak and the Supreme Court’s holding in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson 2015”). The government has filed a response.

II. ANALYSIS

A. Standard of Review

On appeal, Kennedy argues that his sentence is procedurally and substantively unreasonable. We apply an abuse-of-diseretion standard in reviewing a sentence. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We must first assess the sentence for procedural error, which could include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If we find that the sentencing decision was “procedurally sound,” we review its substantive reasonableness under an abuse-of-discretion standard. We may apply a presumption of substantive reasonableness to sentences that are within the Guidelines range. Id.; United States v. Vonner,

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901 F.3d 706 (Sixth Circuit, 2018)
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711 F. App'x 314 (Sixth Circuit, 2017)
United States v. Willie Yates
866 F.3d 723 (Sixth Circuit, 2017)
United States v. Theodore Jackson, Jr.
704 F. App'x 484 (Sixth Circuit, 2017)
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702 F. App'x 335 (Sixth Circuit, 2017)

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683 F. App'x 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-kennedy-ca6-2017.