United States v. Rocky White

380 F. App'x 483
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 8, 2010
Docket09-5404
StatusUnpublished
Cited by1 cases

This text of 380 F. App'x 483 (United States v. Rocky White) 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. Rocky White, 380 F. App'x 483 (6th Cir. 2010).

Opinion

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Rocky Morris White appeals a sentence of 240 months incarceration and three years supervised release imposed by the United States District Court for the Western District of Tennessee. The sentence resulted from resentencing following an order vacating his original sentence under 28 U.S.C. § 2255 on the grounds of ineffective assistance of counsel at his first sentencing hearing. Because the district court did not impose an unreasonable sentence within the meaning of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we affirm White’s sentence.

I.

Rocky Morris White had accumulated a considerable criminal history before he came before the district court in the instant case. The Presentence Investigation Report (“PSR”) lists, and White does not deny, convictions of fifteen prior felony offenses and numerous misdemeanors in Tennessee state courts. Between 1983 and 1993, White was convicted of, inter alia, receiving stolen property, petit larceny, assault and battery, public drunkenness, resisting arrest, concealing stolen property (two counts), reckless endangerment (five counts), aggravated assault, theft (three counts), possession of more than one-half gram of crack cocaine for sale, vehicle burglary, and aggravated burglary (three counts). On November 18, 2002, White was indicted with his first federal offense, one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g), after a search of his vehicle following an arrest for driving with a revoked license uncovered a .22 revolver.

A jury convicted White on that count on June 27, 2003, and we affirmed his conviction. See United States v. White, 131 Fed.Appx. 54 (6th Cir.2005), cert. denied, 546 U.S. 850, 126 S.Ct. 109, 163 L.Ed.2d 121 (2005). The district court sentenced him to 260 months in prison and three years supervised release on October 8, 2003, but later vacated that sentence after granting White’s pro se motion pursuant to 28 U.S.C. § 2255 on the grounds that he had received ineffective assistance of appellate counsel because his attorney failed to raise a Booker issue on appeal.

The revised PSR prepared for resen-tencing determined that White’s base offense level was 24 pursuant to § 2K2.1(a)(2) of the United States Sentencing Guidelines (“U.S.S.G.”) because he had at least two prior felony convictions for crimes of violence or involving controlled substances. Additionally, because White was previously convicted of four violent felony offenses and one serious felony drug offense, the PSR concluded that White qualified as an armed career criminal under U.S.S.G. § 4B1.4(a), which raised his offense level to 33. The PSR calculated that White had a total of nineteen criminal history points, including additional points for committing the instant offense while on parole and for convictions of violent crimes not already counted, resulting in a criminal history category of VI. The resulting Guidelines range was 235 to 293 months, which was greater than the 180-month mandatory minimum required by 18 U.S.C. § 924(e). In his response to the PSR, White conceded that this presented an accurate calculation of his criminal history and that he “ha[d] no objections to the portrayal of his personal characteristics as presented in the [PSR].”

At the resentencing hearing on March 24, 2009, White sought the mandatory minimum sentence, and the government asked *486 the district court to sentence White to the same sentence imposed at the first sentencing hearing. After hearing argument from defense counsel and the government regarding White's age of fifty-two and his considerable rehabilitative efforts since his incarceration, the district court rejected White's objection to his designation as an armed career criminal pursuant to § 4B 1.4 and sentenced him to 240 months in prison followed by a three-year period of supervised release. This appeal followed.

II.

"[T]he district court's task is to impose `a sentence sufficient, but not greater than necessary, to comply with the purposes' of 18 U.S.C. § 3553(a)(2)." United States v. Klups, 514 F.3d 532, 536 (6th Cir.2008) (quoting Booker, 543 U.S. at 268, 125 S.Ct. 738). Reasonableness review of sentencing "has two components: procedural and substantive." United States v. Bolds, 511 F.3d 568, 578 (6th Cir.2007) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Because White challenges only the substantive reasonableness of his sentence, we limit our review to that component. 1 Accordingly, we "consider the substantive reasonableness of the sentence under an abuse-of-discretion standard." Gall, 552 U.S. at 51, 128 S.Ct. 586.

The Supreme Court has held that when reviewing the substantive reasonableness of a sentence, an appellate court must "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Id. When, as in this case, the sentence falls within the applicable Sentencing Guidelines range, we "may apply a rebuttable presumption of substantive reasonable-ness" and give "due deference" to the district court's determination that § 3553(a) justifies the imposed sentence. Bolds, 511 F.3d at 581 (citing Gall, 552 U.S. at 51, 128 S.Ct. 586, Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and United States v. Williams, 436 F.3d 706, 708 (6th Cir.2006)).

Because White's 240-month sentence falls well within the Sentencing Guidelines range of 235 to 293 months, we presume that it is reasonable. However, White may rebut this presumption by demonstrating that "the district court select[ed the] sentence arbitrarily, base{d} the sentence on impermissible factors, fail[ed] to consider relevant sentencing factors, or g[ave] an unreasonable amount of weight to any pertinent factor." United States v. Camiscione, 591 F.3d 823, 832 (6th Cir.2010) (quoting United States v. Lapsins, 570 F.3d 758, 772 (6th Cir.2009)) (internal quotation marks and citation omitted). This he has not done.

White bases his claim of substantive unreasonableness on two factors.

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Bluebook (online)
380 F. App'x 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rocky-white-ca6-2010.