United States v. Timothy L. Little

61 F.3d 450, 1995 WL 441637

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 5, 1995
• Docket: 94-6051
• Status: Published

Opinions

SILER, J., delivered the opinion of the court, in which MILBURN, J., joined. CONTIE, J. (pp. 454-57), delivered a separate dissenting opinion.

SILER, Circuit Judge.

Defendant Timothy Little challenges his sentence of life imprisonment on his conviction for being a felon in possession of a firearm, 18 U.S.C. § 922(g), and qualifying as an armed career criminal, 18 U.S.C. § 924(e). Little argues that the district court had no basis for departing upward by six levels and contends that the length of the sentence imposed is unreasonable. For the reasons stated herein, we affirm the decision of the district court.

I.

On December 29,1993, Little, an employee of a lawn service, was raking leaves at a home in Memphis, Tennessee. He knocked on the door of the house and asked the resident, a woman, if he could use the telephone. The woman allowed Little into her home. Once inside, Little pulled out a gun and ordered the victim to disrobe, pushed her to a bedroom, and forced her to perform oral sex. Little also attempted to have vaginal and anal intercourse with the victim, but he was unable to do so. He then penetrated the victim digitally both anally and vaginally. Once he was finished, he told the victim to get dressed and showed her that his gun contained no bullets. He instructed the victim not to call the police and left the house, returning to his yard duties. The victim immediately called the police. When the police arrived, Little was still on the property raking leaves. While he did not have the firearm in his possession, he willingly told the police of its location.

Little pleaded guilty to possession of a firearm by a felon, 18 U.S.C. § 922(g). The government sought a sentence enhancement pursuant to 18 U.S.C. § 924(e), the armed career criminal statute. The presentence investigation report indicated a criminal history score of 15 points based, in part, on the following: (1) a state conviction for criminal sexual conduct, robbery with a deadly weapon, and kidnapping a store clerk; (2) two burglary convictions; and (3) a burglary charge. Little also had a juvenile record, including assault and battery of a female and prowling (peeping into a woman’s bedroom window). Little’s offense level was 31, with a criminal history category (CHC) of VI, and a guideline imprisonment range of 188 to 235 months.

A week before sentencing, Judge Gibbons informed Little that she was considering making an upward departure. After defendant submitted his objections to such a departure, the district court sentenced Little to life imprisonment, stating as its basis, the seriousness of Little’s criminal behavior and, given Little’s severe sexual dysfunction, the high probability of recidivism. Little now challenges the length of the sentence imposed.

II.

Little contends that as CHC VI adequately reflected the seriousness of his criminal conduct and the likelihood that he would commit more crimes, the district court erred in making an upward departure pursuant to USSG § 4A1.3, which provides:

If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range.

In reviewing a district court’s departure from the Guidelines, this court employs a three-prong test. First, we consider whether the circumstances of the case are sufficiently unusual to warrant departure. As this is a question of law, review is de novo. Second, we determine whether the circumstances that justify departure actually exist. Review is for clear error. Finally, we determine whether the degree or range of departure was reasonable. United States v. Thomas, 24 F.3d 829, 832 (6th Cir.), cert. denied, — U.S. —, 115 S.Ct. 453, 130 L.Ed.2d 362 (1994); United States v. Joan, 883 F.2d 491, 494 (6th Cir.1989). In regard to the third prong, “reasonableness is a flexible standard which ‘involves what is quintessentially a judgment call’ ” and a reviewing court must, therefore, give deference to the trier of fact’s “superior ‘feel’ for the ease.” Thomas, 24 F.3d at 833 (citing Joan, 883 F.2d at 494 (citations omitted)). For this reason, we determine reasonableness based, in part, on “ ‘the reasons for the imposition of the particular sentence as stated by the district court.’ ” Id.

Review of the record reveals circumstances sufficiently unusual to warrant departure. “In determining whether an upward departure from Criminal History Category VI may be warranted, the court should consider that the nature of the prior offenses rather than simply their number is often more indicative of the seriousness of the defendant’s criminal record.” USSG § 4A1.3 (emphasis added). Little has twice committed rapes at gunpoint. His criminal background is peppered with instances of sexual misconduct. He has undergone numerous unsuccessful hospitalizations in order to treat his sexual dysfunction. In fact, Little was under the care of a psychiatrist for his sexual dysfunction when he committed the present rape. As stated in the presentence report, Tim Gesky, a prior counselor of Little, indicated that:

[Little] is most comfortable in prison where his sexual needs are met.... [He] has no tools with which to live on the outside. It is part of the culture of violence in prison wherein the defendant learned his sexual responses. It is thought that the fear he instills in his victims acts as a primary factor for his sexual arousal. Sex to Mr. Little is equivalent to violence or against a person’s will.

Moreover, Little presents a very high risk of recidivism. As the presentence report correctly noted, “defendant’s first adult conviction was at the age of 18. He is now 33. Of the 15 intervening years, 12 ... have been spent in custody.” Indeed, Little was free from prison only six months before he committed the present offense. While it is true that the Guidelines generally take recidivism into account, they do not sufficiently account for psychological problems such as the one at hand.¹ The circumstances of this case are, therefore, sufficiently unusual to warrant an upward departure.

Next, the sentencing court’s findings justifying the departure are not clearly erroneous. As an initial matter, enhancement factors need only be supported by a preponderance of the evidence. Hence, Little faces a tough burden in attempting to prove that the district court clearly erred in its findings. He primarily contends that the district court erred in relying on the opinions of certain professionals as contained within the presentenee report.² As this circuit stated in United States v. Silverman, 976 F.2d 1502 (6th Cir.1992)(en banc), cert. denied, — U.S. —, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993), however, a sentencing court may consider any information as long as there exist “ ‘sufficient indicia of reliability to support its probable accuracy.’” Id. at 1513 (citations omitted). The professionals’ statements meet this test. Both Little’s mother and Little himself admitted that he had a major sexual dysfunction. The professionals’ opinions thus simply confirm many of Little’s own admissions.

Finally, a life sentence, while severe, is reasonable given the circumstances of this case. The district court stated, in part, the following as its reasons for imposing the sentence:

[T]he Court has considered certainly the very serious nature of Mr. Little’s past offenses, which include two rapes at gunpoint, ... but the Court also considers the number of offenses that triggered the armed career criminal status, [that] went beyond what would be required ... to begin with.

But even really more important in this particular case ... is the likelihood that Mr. Little will commit other crimes. The Court is motivated by a sense of responsibility to do what the Court can in this situation to protect society from future crimes by Mr. Little.

Given that, as a rule, “unless there is little or no basis for the court’s actions [in making an upward departure], the sentence should be upheld,” Thomas, 24 F.3d at 833 (citing United States v. Joan, 883 F.2d 491, 494 (6th Cir.1989)), we conclude that the length of the sentence imposed was reasonable. While a life sentence is extreme, it is significant that 18 U.S.C. § 924(e) authorizes a sentence of life imprisonment as a maximum punishment. See, e.g., Wolak, 923 F.2d at 1199; United States v. Carey, 898 F.2d 642, 646 (8th Cir.1990). Congress thus expected that life imprisonment would be appropriate in some cases. Furthermore, Little’s extensive criminal background and the failure of prior incarcerations to deter him from criminal activity support the imposition of a lengthy sentence. Finally, his apparent uncontrollable and irreparable sexual dysfunction requires at least an extended period of incarceration for, if nothing else, society’s protection.

As an alternative argument, Little contends that “the District Court Judge erred in failing to consider intermediate levels of departure as required by United States v. Kennedy, 893 F.2d 825 (6th Cir.1990).” However, “[n]either the Guidelines nor the law of this circuit require the district court to provide a mechanistic recitation of its rejection of the intervening, lower guideline ranges.” Thomas, 24 F.3d at 834. Rather, as § 4A1.3 explicitly directs, when a defendant is already at CHC VI, the district court need only move incrementally down the sentencing table until it finds an offense level that is appropriate to the case. A court is not required to “move only one level, or to explain its rejection of each and every intervening level.” Id. Rather, “[s]ection 4A1.3 and [circuit case law] constrain the court only to the extent that it must use the offense level ranges as a reference, and depart from them no further than is required to reach a gridlock that contains a reasonable sentence for the defendant_” Id. at 835-36.

The district court satisfied the Thomas test. It rejected the intermediate levels as too lenient under the particular circumstances. It was concerned “that there would be no lesser punishment that would fully protect society as the great likelihood that Mr. Little, if released from prison, would commit further crimes.” We find this to be sufficient.

AFFIRMED.

1 . For the same reason, the cases of United States v. Wolak, 923 F.2d 1193 (6th Cir), cert. denied, 501 U.S. 1217, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991), and United States v. Kennedy, 893 F.2d 825 (6th Cir.1990), upon which Little relies, are distinguishable. The present case, unlike Wolak or Kennedy, involves circumstances much more egregious than an extensive criminal history. See Wolak, 923 F.2d at 1200.

2 . Little argued to the district court that, as he did not have an opportunity to cross-examine the professionals, their opinions are inherently unreliable. However, no right to confrontation attaches at sentencing. United States v. Silverman, 976 F.2d 1502, 1514 (6th Cir.1992)(en banc), cert. denied, — U.S. —, 113 S.Ct. 1595, 123 L.Ed.2d 159 (1993).