PE8O S. HUNT, Clerk UNITED STATES OF AMERICA, ON APPEAL FROM THE v. Northern District of Ohio Wendell M. Stoutermire

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0230n.06
E
No. 12-3524 MAR 2013
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PE8O S. HUNT, Clerk
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
WENDELL M. STOUTERMIRE, )
) OPINION
Defendant-Appellant. )
BEFORE: NORRIS, GIBBONS, and DONALD, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Defendant Wendall Stoutermire pleaded guilty to one
count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a). He received a sentence of
twenty-three months of incarceration followed by one year of supervised release. The judgment also
ordered the sentence to run consecutively to a “future imposed sentence in Pennsylvania for [a]
probation violation.” On appeal, defendant contends that his sentence was procedurally and
substantively unreasonable because the district court failed to consider adequately the factors set
forth in 18 U.S.C. § 3553(a). He also challenges the authority of the district court to order the
federal sentence to be served consecutively to an as-yet-unknown state sentence. For the reasons that
follow, we affirm the judgment.
I.

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No.
12-3524
United
States
v.
Stouterm
ire
This
prosecution
stemmed from
defendant’s use
of
counterfeit
Michigan driver’s
licenses
and
credit cards
to
make fraudulent purchases
at
several Best Buy
stores
in
northern
Ohio.
Defendant
was
arrested while attempting
to
make
an
illegal
purchase
at
a
Best Buy store
in
Mayfield
Heights.
Two
accomplices were apprehended
in the
parking
lot
while defendant
was inside.
Defendant
initially gave
a
false name when approached but later cooperated. When
the
police searched
his
car,
they found three syringes,
a
plastic bag
with
white
powder
residue,
a
new iPhone,
and two iPads.
Defendant subsequently
entered
into
a
written plea
agreement, which
provided
that defendant
was
advised that
his
plea “requires
the
Court
to
impose
a
mandatory
2
year sentence
of
imprisonment.” However,
the
agreement
also
stated
that,
if
the
defendant cooperated
with
authorities,
the
government
“may move
the
Court for
a
substantial assistance reduction pursuant
to
U.S.
S
.G.
Section
5K1
.1,”
which could result
in
a
sentence
of
less
than twenty-four months. The
government filed the
contemplated
§
5K1
.1
motion prior
to
sentencing
and
requested
a
three-level
reduction.
The
district court conducted
a
sentencing hearing
on April
16,
2012. In
support
of
its
substantial assistance motion, the
government noted that defendant “immediately admitted
to
what
was going on, [and]
identified
the role
of
the other two individuals
who were involved.”
He
continued
to
cooperate
as
the case proceeded against his co-defendants and was
prepared
to
testify
against them had they elected
to go to trial. The Assistant United States Attorney explained that
defendant acted as the straw purchaser. A
co-defendant actually held the counterfeit driver’s licenses
and would give one to
defendant prior
to a
purchase. Defendant was paid afier he turned over the
merchandise
to
his co-defendants.
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No. 12-3524
United States v. Stouterm ire
Not surprisingly, defense counsel agreed with the government with respect to the three-level
reduction. After some discussion among the court, counsel, and the probation officer, it was agreed
that the advisory guidelines range was between nine and fifteen months of imprisomnent. The
district court somewhat reluctantly accepted this calculation, observing that “the way this case was
prosecuted and the way the plea was negotiated. . . is somewhat flawed.”
Defendant, who is now middle-aged, has a history of drug abuse that began at seventeen. In
recent years, he has been addicted to heroin. Defense counsel urged the court to take his client’s
heroin addiction into account as a mitigating factor. After his arrest defendant completed a drug
treatment program, although he relapsed not long thereafter. Despite that relapse, counsel asked that
defendant serve some of his time in a halfway house where he could continue to get treatment.
The district court was not convinced and, while it accepted that the guidelines range was
between nine and fifteen months, concluded that defendant “is certainly not deserving of a sentence
within that range.” Instead it imposed a sentence of twenty-three months, giving defendant one
month less than the statutory minimum for his cooperation. In reaching this sentence, the court
considered several of the factors listed in 18 U.S.C.
§ 3553(a). With respect to the nature and
circumstances of the offense, it observed that “defendant is a 53-year-old male with an extensive
prior record that includes convictions for larceny, assault, receiving stolen property, and other theft
related charges.” In its view, the “instant case is a continuing and recurring theme in the defendant’s
life.” The court also noted that there was an outstanding warrant for defendant’s arrest issued by
a court in Pennsylvania due to a probation violation. This history of crime troubled the court. Of
particular concern to it was the fact that defendant would receive a lighter sentence than his
co
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No. 12-3524
United States v. Stoutermire
defendants even though “it appears that [the] three defendants [are] equally culpable” and defendant
had “the worst criminal record by far.”
The court took into consideration that defendant was placed on bond after his arrest,
completed a residential drug program, but, as already mentioned, then tested positive for opiates.
Not only did he test positive, defendant attempted to alter the results of the drug screening. As a
result, the court concluded that “he is certainly not a good risk for any type of community
confinement.”
With respect to the deterrence factor, the court observed that identity theft burdens the
economy and adversely impacts those whose identity is stolen. In its view, “[A] strong message
needs to be sent, and candidly, in all due respect, even the two year [statutory minimum], at least in
my view, is a slap on the wrist for these kinds of offenses.” Although the court agreed to sentence
defendant below the statutory minimum, it expressed deep-seated reservations:
He is entitled to certain consideration below the mandatory minimum of two years.
However, for all the reasons I’ve just stated, including his lengthy record, the
attempts to try to address his drug addiction while on bond, and primarily for the fact
this defendant has . . . , at least in my view, the record is deplorable. . . . He is
involved with some type of criminal offense virtually once every year. .
The court imposed a sentence of twenty-three months of incarceration, one year of supervised
release, ordered $21,419.91 in restitution, and assessed defendant $100. Over defense counsel’s
objection, the court also ordered that defendant’s sentence be served consecutively “to whatever time
is imposed in the Court in Pennsylvania.”
II.
A. The Reasonableness of the Sentence
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No. 12-3524
United States v. Stouterm ire
This court reviews the reasonableness of a sentence under an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51(2007). This standard of review applies regardless of whether
the sentence falls inside or outside of the advisory guidelines range. Id. Reviewing courts must first
determine that the sentencing court committed no procedural error, such as improperly calculating
the guidelines range, failing to consider the
§ 3553(a) factors, or failing to adequately explain the
reason for its sentence. Id.; United States v. Aleo, 681 F.3d 290, 298 (6th Cir. 2012). If it passes
procedural muster, we ask whether the sentence was substantively reasonable, that is, given the
totality of the circumstances, was it fundamentally fair. Gall, 552 U.S. at 51. While a presumption
of reasonableness applies when the sentence is within the guidelines range, there is no presumption
that the sentence was unreasonable if the sentence imposed falls outside of the range. Id. The extent
of the variance is a factor in the substantive reasonableness inquiry. “If the judge ‘decides that an
outside-Guidelines sentence is warranted, [the judge] must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to support the degree of the variance.” Aleo,
681 F.3d at 299 (quoting Gall, 552 U.S. at 50).
Defendant does not argue that the guidelines range as accepted by the district court was in
error. He does fault the court, however, for not considering all of the
§ 3553(a) factors and for
giving an inadequate explanation of its sentence. Defendant points out that the district court granted
the government’s substantial assistance motion, which lowered the guidelines range to between nine
and fifteen months, a range that the court explicitly accepted only to impose an upward variance.
While defendant concedes that the district court referenced the
§ 3553(a) factors during
sentencing, he notes that the court focused primarily on the negative factors: criminal history, lack
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No. 12-3524
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of compliance on parole, and drug addiction. In his view, the court did not adequately consider his
arguments in favor of mitigation: remorse, acceptance of the need for treatment, and cooperation.
In this case, the upward variance was substantial, at least in percentage terms. The district
court added eight months to the upper-end of the guidelines range, an increase of approximately
50%. Such variances require district courts to provide “compelling” reasons for their departure.
Aleo, 681 F.3d at 300 (“{T]he greater the variance. . . the more compelling the justification based
on the factors in
§ 3553(a) [must be].”) (quotation omitted).
The government counters that the court correctly explained why, despite his substantial
assistance, defendant did not merit a sentence within the adjusted guidelines range. While it is true
that the court focused upon certain factors
of 3 553(a) more than others—specifically, the need for
deterrence and defendant’s criminal history—it provided more than a “bare bones” rationale for its
sentence. See United St at es v. Wallace, 597 F.3d 794, 805-06 (6th Cir. 2010) (collecting cases where
this court has affirmed a sentence despite a bare bones explanation); United States v. McBride, 434
F.3d 470, 474 (6th Cir. 2006) (“This Court has held that although a sentence should reflect the
considerations listed in
§ 3553(a), there is no requirement that the district court engage in a ritualistic
incantation of the
§ 3553(a) factors it considers.”) (quotation omitted).
Here, the court expressed strong feelings about two aspects of this case: the need to protect
the public from identity theft, which it viewed as a significant societal problem, and the defendant’s
“deplorable” criminal history. Both of these considerations are legitimate
§ 3553(a) factors. In
addition, the court’s concern that defendant was receiving a lighter sentence than his co-defendants
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No.
12-3524
United
States
v.
Stoutermire
despite
a
much worse criminal history
is
perfectly legitimate, although
not required. United States
v.
Simmons,
501
F.3d
620,
624 (6th
Cir.
2007).
It
is
true that
the
court
did
not
dwell on the
mitigating
factors
urged
by
defendant. Although
it
recognized
his
need
for drug treatment,
the
court determined that
his
relapse while
on
bond
cut
against confinement
in
a
halfway house.
It
also
acknowledged defendant’s cooperation
but
concluded that,
while
it
was
useful,
it
was not compelling.
In
short, the district court adequately addressed
the
section 3553(a) sentencing
factors and
provided
a
rationale
for why
it
imposed
a
sentence below
the
statutory minimum
but above
the
adjusted guidelines
range. The sentence was
both procedurally
and
substantively reasonable.
B.
Consecutive Sentencing
Defendant next contends that the district court lacked the authority
to
order that his sentence
be
served
consecutively
to an
as-yet-unspecified Pennsylvania sentence.
In
2010, defendant
was
convicted
of
simple assault
for
punching
his
girlfriend.
He
received
two years
of
probation, which
he violated almost immediately
by failing
to
report.
As
a
result,
an
outstanding arrest warrant
was
issued, which was pending
at the time
of
his arrest
on the federal charges. Even though the
anticipated state sentence was unknown
at the time
of
his
federal sentencing, the district court elected
to
run
it
consecutively
to
his federal sentence over the
objection
of
defense counsel.
In
Setser
v.
United States,
132
S.
Ct. 1463
(2012), the Supreme Court rejected the argument
advanced by defendant by answering the following question
in the affirmative: “We consider
whether
a
district court, in sentencing
a
defendant for
a
federal offense, has authority
to
order that
the federal sentence be consecutive
to an anticipated state sentence that has not yet been imposed.”
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Id. at 1466. The Court observed that judges have long had discretion to select between concurrent
and consecutive sentences. Id. at 1468. While the district court cannot ensure that the Pennsylvania
court runs the subsequent state sentence consecutively, that does not mean that it lacks the authority
to order consecutive sentences. As the Supreme Court recognized, “That a sentence is thwarted does
not mean that it was unreasonable. If a district court ordered, as a term of supervised release, that
a defendant maintain a steady job, but a subsequent disability rendered gainful employment
infeasible, we doubt that one would call the original sentence an abuse of discretion.” Id. at 1473.
In our view, this reasoning applies with equal force to the circumstances before us.
III.
The judgment is affirmed.
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