United States v. Sergio Watson

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 27, 2019
• Docket: 18-4027
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 19a0327n.06

No. 18-4027

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jun 27, 2019 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE SERGIO WATSON, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellant. ) )

BEFORE: BOGGS, BATCHELDER, and BUSH, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Sergio Watson pled guilty to possessing

firearms, in violation of 18 U.S.C. § 922(g). Because of his prior criminal history, numerous

violent felony convictions, and admission of guilt, the advisory Guidelines recommended a range

of 100 to 120 months of incarceration. Neither party objected to the calculation. Watson requested

a 60-month sentence based on several mitigating factors: his childhood poverty, history of drug

abuse, work history, mental-health issues, and plans for the future.

At the sentencing hearing, the district court carefully reviewed the record and the 18 U.S.C.

§ 3553(a) factors before finding that Watson was a “very dangerous person . . . with an amazing

criminal record.” The district court had “rarely seen worse given this record and given this

history.” In responding to Watson’s contention that his mental-health issues should be a mitigating

factor, the district court stated:

His cry for mental health treatment at this point rings hollow. I would suspect when you read the report, being familiar with the Community Corrections Facility that No. 18-4027, United States v. Watson

we have here in Summit County, being familiar with the other programs offered to the defendant, he certainly had every opportunity if he had a need or desired mental health treatment to make a request and/or to receive the same. And I will give reasons why I believe that to be the case.

The district court then went on to list all the “numerous, numerous chances, extensive chances”

that Watson had received to request mental-health treatments that, as the district court explained

it knows, are “clearly, without any doubt . . . typically part of the various programs” offered where

Watson had been in custody before. The district court selected a 120-month sentence. The district

court asked the parties for any objections and Watson made none regarding the district court’s

finding with respect to past opportunities for mental-health treatment.

On appeal, Watson challenges his sentence as substantively unreasonable. For the first

time Watson asserts that he did not, in fact, ever have access to mental-health treatment during his

prior incarcerations or remedial programs. Watson’s only argument is that, because “the district

court relied on unfounded assumptions and speculation” regarding prior opportunities for mental-

health treatment when denying his request for a reduced sentence because of a mitigating factor,

his sentence is substantively unreasonable.

As a preliminary matter, this is not a substantive-reasonableness challenge. Rather, the

claim that the district court considered impermissible factors by relying on unfounded assumptions

and speculation is a procedural-reasonableness challenge. United States v. Rayyan, 885 F.3d 436,

440, 442 (6th Cir. 2018). See also Gall v. United States, 552 U.S. 38, 51 (2007). We note that

Watson submitted a letter under Federal Rule of Appellate Practice 28(j), pointing out that despite

our recent published decision in United States v. Parrish, 915 F.3d 1043, 1048 (6th Cir. 2019), in

which we held that consideration of an impermissible factor at sentencing is procedurally

unreasonable, prior cases in our circuit have treated consideration of an impermissible factor at

sentencing as substantively unreasonable. Watson argues that Parrish could not have overruled

2 No. 18-4027, United States v. Watson

those prior cases, citing United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996), for the

proposition that only the en banc court can overrule a previously published panel opinion. His

analysis is incorrect.

In Parrish, we explained that it was previously unsettled—never affirmatively decided—

in our circuit as to whether consideration of an impermissible factor at sentencing is procedurally

or substantively unreasonable. “But in 2016, the court settled the question, concluding that

‘consideration of an impermissible factor is more properly considered a procedural, not

substantive, error.’” Parrish, 915 F.3d at 1048 (citing United States v. Cabrera, 811 F.3d 801,

809 (6th Cir. 2016)). Furthermore, Parrish also explained that a claim that the district court

engaged in “unreasonable speculation . . . is simply another way of saying that the district court

‘select[ed] a sentence based on clearly erroneous facts.’ [] Such a claim [challenges the]

procedural, not substantive, reasonableness” of a sentence. 915 F.3d at 1047 (citing Gall v. United

States, 552 U.S. 38, 51 (2007)). Parrish reaffirmed Cabrera, and their holdings are now binding

in this circuit. Accordingly, we hold that Watson’s claim—viewing unfounded assumption and

speculation either as “impermissible factors” or “erroneous facts”—is a procedural-reasonableness

challenge.

Nevertheless, the inaccurate framing of this challenge is immaterial because Watson did

not object to the district court’s supposed mistake after being given the opportunity to do so. We

thus review for plain error, not reasonableness. United States v. Simmons, 587 F.3d 348, 353 (6th

Cir. 2009). “Plain error exists where there is (1) error (2) that was obvious or clear, (3) that affected

[the] defendant’s substantial rights and (4) that affected the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018)

(quotation omitted). “Accordingly, plain error is a standard that is extremely deferential to the

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district court, and it should be found sparingly, only in exceptional circumstances, and solely to

avoid a miscarriage of justice.” Id. (quotation omitted).

Because there had been no opportunity to consider this supposed error during the district

court proceedings, the government moved under Federal Rule of Appellate Procedure 10(e)(3) and

Federal Rule of Evidence 201 for this court to take judicial notice of relevant state-court

documents. See also United States v. Ferguson, 681 F.3d 826 (6th Cir. 2012) (holding that taking

judicial notice of state-court proceedings for the first time on appeal is appropriate when the

relevant documents—in that case Shepard documents—in those proceedings (1) are of reasonably

indisputable accuracy, and (2) have a direct relation to the matter at issue on appeal). We granted

the motion and allowed the government to file under seal. These documents demonstrate that not

only did Watson have opportunities to seek treatment services while in custody, he actually

received treatment several times. At a minimum, Watson received evaluation by a court

psychologist in 2007 that indicated Watson “reports no mental health issues,” as well as substance-

abuse treatment and individual counseling in 2018.

The district court did not plainly err in imposing a 120-month sentence. We AFFIRM.