United States v. Tisdel

629 F. App'x 719
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 27, 2015
DocketNo. 15-3217
StatusPublished

This text of 629 F. App'x 719 (United States v. Tisdel) 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. Tisdel, 629 F. App'x 719 (6th Cir. 2015).

Opinion

OPINION

COLE, Chief Judge.

Monique Tisdel pleaded guilty to trafficking in heroin. She faced upwards of 24 months’ imprisonment under the U.S. Sentencing Guidelines (“USSG”). Instead, the district court varied downward and imposed a term of one year and one day in prison. Finding no error, we affirm.

I.

In December 2013, federal agents investigating a drug ring picked up a series of phone calls between Tisdel and Mark A. Makupson. These calls revealed that Tis-del was acting as a courier for Makupson, dealing small amounts of heroin and providing funds for the purchase of additional heroin. A grand jury indicted Tisdel for her role, albeit minor, in this operation. She pleaded guilty to one count of conspiracy to distribute and possess with the intent to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(C).

A.

A probation officer prepared a Presen-tence Investigation Report (“PSR”) for the district court. See 18 U.S.C. § 3552(a); Fed.R.Crim.P. 32. With respect to Tis-del’s “offense level,” the PSR began with a base level of 18 because the drug quantity at issue was between 40 and 60 grams of heroin. See USSG § 2Dl.l(c)(ll). After a five-level decrease, the offense level came down to 13. See USSG §§ 3B1.2(b), 3El.l(a), (b). As for her “criminal history,” the PSR placed Tisdel in category III because she had three countable “prior sentences” between March and October of 2013 — for drug possession and possession of criminal tools, driving under the influence, and driving under suspension — and because she committed the instant heroin offense while under probation. See USSG § 4Al.l(c), 1.1(d), 1.2. Ultimately, the PSR calculated the guidelines range: a total offense level of 13 and a criminal history category of III, amounting to a sentence of 18 to 24 months’ imprisonment. See USSG § 5A.

B.

At the sentencing hearing, the district court agreed with the PSR’s recommendation. Tisdel’s counsel objected, arguing that, although “according to the system ... she does fit within [cjategory III,” this finding would be unfair because it “overstates the seriousness of her [cjriminal [h]istory and her likelihood of recidivism.” Further, as Tisdel’s counsel pointed out, she “has no offenses of violence in her past” and “never served a prior sentence.” Tisdel hoped for a criminal history reduction because it would allow a discretionary split-sentence of six months’ imprisonment and six months’ home confinement. See USSG § 501.1(d)(2).

The district court considered this argument, but pointed to countervailing concerns of recidivism. The court noted that Tisdel “caught a break” on her March 2013 drug possession conviction when she was granted intervention in lieu of conviction, but “less than five months later” she became involved in this case. Moreover, the district court explained that “[cjriminal [h]istories are largely related to the underlying offense.... [N]ot ... to whether somebody served jail time before.” The court did not find that category III overrepresented Tisdel’s criminal history and, instead, thought it was “in line with what the Sentencing Commission had intended.”

After considering all party objections and the 18 U.S.C. § 3553(a) sentencing [721]*721factors, the court ultimately g[ajve her a variance in the case” and imposed a sentence of one year and one day in federal custody.

II.

We review sentencing decisions under an abuse-of-discretion standard. United States v. Coppenger, 775 F.3d 799, 802-03 (6th Cir.2015). All sentences, “whether inside, just outside, or significantly outside the Guidelines range,” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), must be procedurally and substantively reasonable. See United States v. Kamper, 748 F.3d 728, 739 (6th Cir.2014). Such review entails “considering] not only the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). However, because “[district courts have an institutional advantage over appellate courts in making” sentencing determinations, Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the mere “fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.” Gall, 552 U.S. at 51, 128 S.Ct. 586.

Tisdel primarily faults the district court for denying her “request to be placed in criminal history category II,” which she claims resulted in an unreasonable sentence. That argument, however, is foreclosed. Tisdel may not appeal the district court’s refusal to depart downward under USSG § 4A1.3(b)(l). In any case, we find no procedural or substantive error in the district court’s sentencing determination.

On appeal, a defendant may not challenge a district court’s refusal to depart downward “unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.” United States v. Puckett, 422 F.3d 340, 345 (6th Cir.2005) (quoting United States v. Stewart, 306 F.3d 295, 329 (6th Cir.2002)). We have long held that a sentence is “not appealable on the grounds that the sentencing judge failed to depart from the Guidelines on account of certain factors which the defendant feels were not considered by the Guidelines and should reduce his sentence.” United States v. Draper, 888 F.2d 1100, 1105 (6th Cir.1989).

Tisdel has not shown that the district court misunderstood its discretion. See United States v. Santillana, 540 F.3d 428, 431 (6th Cir.2008) (holding that the district court need not “explicitly state that it is aware of its discretion,” rather, we “presume” as much “absent clear evidence to the contrary”). Here, the district court understood the advisory nature of the guidelines, as evinced by its words and actions. As the sentencing transcript reflects, the district court considered the Sentencing Commission’s intent, understood the policy undergirding USSG § 4A1.3 departures, and found that Tis-del’s criminal history was not over-represented. See United States v. Johnson,

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Related

Koon v. United States
518 U.S. 81 (Supreme Court, 1996)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Terry Draper
888 F.2d 1100 (Sixth Circuit, 1989)
United States v. Owen Daniel Moore, III
225 F.3d 637 (Sixth Circuit, 2000)
United States v. Bernard Chester Webb
403 F.3d 373 (Sixth Circuit, 2005)
United States v. Martece Puckett
422 F.3d 340 (Sixth Circuit, 2005)
United States v. Thomas Greco, Jr.
734 F.3d 441 (Sixth Circuit, 2013)
United States v. Bolds
511 F.3d 568 (Sixth Circuit, 2007)
United States v. Johnson
553 F.3d 990 (Sixth Circuit, 2009)
United States v. Vonner
516 F.3d 382 (Sixth Circuit, 2008)
United States v. Santillana
540 F.3d 428 (Sixth Circuit, 2008)
United States v. Grossman
513 F.3d 592 (Sixth Circuit, 2008)
United States v. Curry
536 F.3d 571 (Sixth Circuit, 2008)
United States v. Joe Head
748 F.3d 728 (Sixth Circuit, 2014)
United States v. Jack Coppenger, Jr.
775 F.3d 799 (Sixth Circuit, 2015)
United States v. Joseph Pirosko
787 F.3d 358 (Sixth Circuit, 2015)
United States v. Stewart
306 F.3d 295 (Sixth Circuit, 2002)

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Bluebook (online)
629 F. App'x 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tisdel-ca6-2015.