United States of America v. Jermaine Cannady

The Hon. Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by
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designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0068n.06
Filed: January 22, 2008
06-6226
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JERMAINE CANNADY,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
Before: RYAN and DAUGHTREY, Circuit Judges; COHN, District Judge.*
MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Jermaine Cannady,
appeals the 46-month sentence imposed by the district court following his conviction on a
charge of assault with a dangerous weapon. Cannady contends that the district court erred
in failing to grant him a downward departure pursuant to § 5K2.10 of the United States
Sentencing Guidelines, based on his claim of “significant provocation” by the victim.
However, well-settled circuit precedent precludes us from reviewing the denial of a motion
for downward departure unless the sentencing court is unaware of its discretion to depart.
Because the district court in this case clearly understood its discretionary authority
to depart, but found such a departure unwarranted by the facts surrounding the offense,

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we conclude that the denial of a downward departure is, indeed, unreviewable and dismiss
the appeal.
The events giving rise to Cannady’s conviction took place at the low-security federal
correctional institution in Ashland, Kentucky, where inmate Falaniko Uti was watching a
professional football game in the prison’s television room. Shortly after the game ended,
as Uti continued to sit in front of the television set, someone poured heated baby oil over
Uti’s head, neck, shoulders, and chest, resulting in second-degree burns. Startled, Uti rose
and turned to see the defendant standing near him with what he later described as “a five-
foot rod.” Uti slipped in the oil that had splashed on the floor, however, and immediately
the defendant “was on top of [Uti] . . . [s]winging and trying to knock [his] head off, trying
to hit [Uti] with [a metal mop handle].”
Uti claimed that he was struck with the mop handle six or seven times before he was
able to rise from the floor and regain his footing. Cannady nevertheless continued
swinging the makeshift weapon at Uti as Uti pursued him down a hallway, fending off the
defendant’s blows with his arms. Eventually, prison guards intervened and ended the
scuffle just as Uti knocked the handle from the defendant’s hands and grabbed Cannady
by the throat.
As a result of the altercation, Cannady was charged in a three-count indictment with
assault with intent to maim and disfigure (count one), assault with a dangerous weapon
(heated baby oil or a metal mop handle) (count two), and assault resulting in serious bodily

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injury (count three). At the conclusion of trial, the jury found the defendant not guilty of the
offenses alleged in counts one and three and guilty of the assault charged in count two
only in regard to the use of a metal mop handle and not the “baby oil heated to its boiling
point.” The district court determined that the appropriate guideline sentencing range was
46 to 57 months and that, in light of the factors outlined in 18 U.S.C. § 3553(a), a 46-month
sentence was “sufficient but not greater than necessary to comply with [those] factors.”
Cannady argued before the district judge that he was eligible for a downward
departure under § 5K2.10 of the guidelines because Uti was so much larger and stronger
than the defendant. Carrying this argument farther, he claimed that as a consequence, the
assault on Uti with the mop handle actually resulted from Uti’s wrongful conduct in pursuing
Cannady down the prison hallway in a threatening manner. The district judge discredited
that argument, stating:
In this case, the Court concludes that Mr. Uti’s actions in believing that Mr.
Cannady was the one who threw the hot baby oil on him and subsequently
approached him about it were not sufficient provocation to warrant a
downward departure based on victim provocation.
In making this finding, the Court concludes that the departure is not
warranted in this case because Uti’s conduct, while perhaps mistakenly
believing that Mr. Cannady was the one who threw the oil on him, it was not
wrongful as that term is used in the particular guideline.
The plain language of the guideline requires the victim’s wrongful conduct
contribute significantly to provoking the offense behavior.
In this case, the court does recognize it has the discretion to depart, but finds
that in this particular case, under the facts of this case, that a downward
departure under this particular provision is not warranted. So the objection
to the failure to depart based on 5K2.10 will be overruled.

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From that ruling, the defendant now appeals.
In sentencing defendant Cannady to 46 months in prison for the assault on Falaniko
Uti with a metal mop handle, the district judge imposed punishment at the low end of the
applicable range calculated according to the provisions of the United States Sentencing
Guidelines. Nevertheless, Cannady requested additional leniency from the sentencing
court, contending that a downward departure was appropriate under § 5K2.10, which
provides in pertinent part:
If the victim’s wrongful conduct contributed significantly to provoking the
offense behavior, the court may reduce the sentence below the guideline
range to reflect the nature and circumstances of the offense. In deciding
whether a sentence reduction is warranted, and the extent of such reduction,
the court should consider the following:
(1) The size and strength of the victim, or other relevant
physical characteristics, in comparison with those of the
defendant.
(2) The persistence of the victim’s conduct and any efforts by
the defendant to prevent confrontation.
(3) The danger reasonably perceived by the defendant,
including the victim’s reputation for violence.
(4) The danger actually presented to the defendant by the
victim.
(5) Any other relevant conduct by the victim that substantially
contributed to the danger presented.
(6) The proportionality and reasonableness of the defendant’s
response to the victim’s provocation.
Ordinarily, the refusal by a district court to grant a downward departure is not
reviewable on appeal – as long as the district judge recognized his or her discretion to

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depart downward from the applicable guideline range. See United States v. Corrado, 304
F.3d 593, 606 (6th Cir. 2002). Moreover, that restriction on this court’s exercise of its
jurisdiction continues even after the United States Supreme Court’s landmark ruling in
United States v. Booker, 543 U.S. 200 (2005). See United States v. Puckett, 422 F.3d
340, 345 (6th Cir. 2005) (“although the sentence departed from may be reviewed under
Booker, we shall not review decisions of a district court not 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” (citations and internal quotation marks omitted)), cert. denied,
547 U.S. 1122 (2006).
Nevertheless, the defendant contends that he is not merely appealing the denial of
a downward-departure request but, rather, is complaining about the district judge’s
misconception of the applicable law. Specifically, Cannady submits that the district court
mistakenly believed that Uti was justified in “attacking” the defendant “all the way down the
hall” even though Uti is a much larger individual than is Cannady and was, according to the
jury’s verdict, mistaken as to the person who poured the oil on him. The defendant further
alleges legal error in the failure of the district court to consider all six factors listed in
§ 5K2.10.
Contrary to the defendant’s assertions, however, the district judge did not
misinterpret the guidelines and thereby condone an unjustified attack on the defendant.
Instead, the district court found that Uti’s actions were not those of an aggressor at all, but

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were simply efforts to disarm an attacker. Indeed, an unbiased review of the trial testimony
indicates that Uti, after being doused with boiling oil, rose to face his attacker but slipped
and fell to the floor. At that time, prior to any indication that Uti sought physical retaliation,
and before Uti was able to regain his balance and stand, Cannady began striking Uti with
the metal rod, hitting him “six, seven times.” That attack, preceding even the repeated
swings and jabs of the mop handle that the defendant admitted performing as he backed
down the prison hallway, was sufficient to justify the jury’s verdict and clearly was in no way
provoked by any conduct of the victim, whether misdirected or not. Because the district
judge labored under no misconception of law in addressing the request for a § 5K2.10
departure, his decision in this regard was a matter of discretion that is not reviewable on
appeal.
CONCLUSION
The jury in this matter concluded that the defendant was the aggressor in the
skirmish with Uti and perpetrated an assault upon the victim with a metal mop handle
before the victim was even able to rise from the floor after slipping on hot oil. Under these
circumstances, no conduct of the victim, wrongful or otherwise, could be construed as
having “contributed significantly to provoking the offense behavior,” and the district judge
did not mistakenly conclude that an unjustified attack upon the defendant by the victim was
legally permissible. Consequently, the district court acted within its discretion in
determining whether a § 5K2.10 departure was appropriate under the facts presented.

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Because the district judge explicitly recognized his authority to depart from the guideline
range in proper circumstances, there is no basis on which to review the denial of the
requested departure. We therefore DISMISS the appeal.

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RYAN, Circuit Judge, concurring. I concur in the court’s judgment for the
reasons stated in the first paragraph of Judge Daughtrey’s opinion. There is settled
precedent in this circuit that in an appeal challenging a district court’s discretion-based
refusal to grant a downward departure, we do not review the court’s decision. See United
States v. Corrado, 304 F.3d 593, 606 (6th Cir. 2002).

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AVERN COHN, District Judge, concurring. I concur in the result only.

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