United States v. Pruitt

502 F.3d 1154, 2007 U.S. App. LEXIS 20734, 2007 WL 2430125
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 29, 2007
Docket06-3152
StatusPublished
Cited by60 cases

This text of 502 F.3d 1154 (United States v. Pruitt) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Pruitt, 502 F.3d 1154, 2007 U.S. App. LEXIS 20734, 2007 WL 2430125 (10th Cir. 2007).

Opinions

ORDER ON PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC

This matter is before the court on the appellant’s petition for panel rehearing, which also includes a request for en banc consideration. We also have a response from the government. Panel members Judge Holloway and Judge O’Brien have voted to grant the petition for panel rehearing for the limited purpose of correcting errors in the previously filed opinion. The panel petition is otherwise denied. Accordingly, it is hereby ordered that the decision filed herein on June 4, 2007, is withdrawn and the attached opinion is ordered filed in its place. Judge McConnell’s original concurring opinion is re-filed with the new opinion.

The petition, including the en banc suggestion, was circulated to all of the members of the court who are in regular active service. No judge called for a poll. Accordingly, the request for rehearing en banc is denied.

HOLLOWAY, Circuit Judge.

Defendant-Appellant Terri Pruitt (Pruitt) pleaded guilty to distribution of five or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(viii). She appeals the sentence that the district court imposed. We have [1156]*1156jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we AFFIRM.

I. BACKGROUND

A. Pruitt’s Criminal History and the Instant Offense

Pruitt is a 42-year-old woman with three prior convictions for selling illegal drugs and a criminal history spanning two decades.

In 1985, Pruitt completed a one-year diversion1 for a DUI charge, filed under Kansas law. In 1987, Pruitt was arrested and charged with possession of methamphetamine and conspiracy to possess or sell cocaine, both felonies under Kansas law. R., Vol. IV, at 7; R. Vol. I, tab 20, at 1. Before Pruitt pleaded guilty to these offenses, she was convicted of aggravated failure to appear in court because she failed to appear as ordered by the court. R., Vol. IV, at 8. Pruitt ultimately pleaded guilty to these drug-related felonies, and she served four years on probation (until April 1991). Id. at 7.

Approximately eight months after she was released from probation, Pruitt was again arrested and charged with committing drug-related crimes, this time possession with intent to sell marijuana and possession of cocaine, felonies under Kansas law. Id. at 9. On this occasion, Pruitt brought her then-infant daughter to a drug transaction and was found in possession of 102.1 grams of marijuana, 10 plastic “baggies,” 13 syringes, a metal tin containing cocaine, a plastic spoon, various types of pills, a mirror, a razor blade, a set of scales, and $420. Id. But before the court could adjudicate her case, Pruitt was arrested and charged with another drug-related offense — sale of methamphetamine in violation of Kansas law. Id. at 10. Pruitt was convicted of all of these felonies and served' about four years in prison. Id. at 9-10; R., Vol. I, tab 20, at 1-2. She was paroled in 1996 and discharged from parole in 1998. R., Vol. IV, at 9.

Seven years later, Pruitt would again find herself charged with a drug-related crime. On April 27, 2005, the Government indicted Pruitt for knowingly and intentionally distributing five or more grams of methamphetamine. R., Vol. I, tab 1, at 1. On November 22, 2004, a confidential drug informant told a DEA Special Agent that Pruitt was involved in distributing multiple-ounce quantities of methamphetamine. R., Vol. IV, at 4; R., Vol. II, at 15. Based on this information, the Government decided to execute a controlled purchase of methamphetamine from Pruitt. R., Vol. IV, at 4; R., Vol. II, at 15.

On November 29, 2004, the informant and Pruitt arranged to meet at Pruitt’s residence and agreed that Pruitt would sell the informant one to two ounces of methamphetamine. R., Vol. IV, at 4; R., Vol. II, at 15. The informant arrived at Pruitt’s residence as planned, and Pruitt provided the informant with one ounce of methamphetamine in exchange for $1,350. R., Vol. IV, at 4-5; R„ Vol. II, at 15-16. The informant pressed Pruitt on when she would have more methamphetamine, to which she responded that she was working to procure another ounce. R., Vol. IV, at 4. The Government contended in Pruitt’s change-of-plea hearing that Pruitt and the informant also discussed conducting a future sale of two ounces of methamphetamine for $2,500. R., Vol. II, at 16. When the court asked Pruitt if “[she] did in fact do exactly what counsel for the government indicated,” Pruitt replied, “[y]es, sir, I did.” Id. The substance that Pruitt sold to the informant contained 29.4 net grams [1157]*1157of 63% pure methamphetamine. R., Vol. IV, at 5; R., Vol. II, at 16.

After initially pleading not-guilty to the offense, Pruitt changed her mind and entered a guilty plea. See generally R., Vol. II (transcript of Pruitt’s change-of-plea hearing).

B. The Sentence Imposed

The district court sentenced Pruitt to 292 months’ imprisonment and 8 years’ supervised release, and levied a special assessment of $100. R., Vol. I, tab 36, at 2-7. The court also allowed Pruitt to receive correctional treatment that she desired and imposed restrictions consistent with those normally imposed on convicted felons, parts of the sentence that Pruitt does not challenge here. Id. The 292-month term of imprisonment is a within-Guidelines sentence that represents the lowest end of the applicable Guidelines range.

The district court first recognized that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Sentencing Guidelines advisory. R., Vol. Ill, at 21-22. The court explained that it was required to calculate Pruitt’s sentence under the Guidelines, but that it would consider the Guidelines range as one factor among other relevant 18 U.S.C. § 3553(a) factors. Id. at 22.

The court then addressed the sentence. Closely tracking the factors set forth in § 3553(a), the court considered the nature and circumstances of the offense; Pruitt’s history and characteristics; and the need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, deter criminal conduct, and protect the public from further crimes of the Defendant. Id. at 23-27. See excerpts from the district court’s decision infra pp. 1160-62.

In essence, the district court stated that although it had authority to vary from the Guidelines range, no factors warranted doing so. Thus, the district court concluded that 292 months’ imprisonment is a reasonable sentence under the circumstances.

II. DISCUSSION

Pruitt argues that this court should not accord a presumption of reasonableness to a within-Guidelines sentence, nor should this court accord a presumption of reasonableness to a sentence within U.S.S.G.

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Cite This Page — Counsel Stack

Bluebook (online)
502 F.3d 1154, 2007 U.S. App. LEXIS 20734, 2007 WL 2430125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pruitt-ca10-2007.