Filed: Jul. 26, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5001 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOHN LEWIS COTTRELL, II, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:09-cr-00005-jpj-pms-3) Submitted: July 15, 2010 Decided: July 26, 2010 Before WILKINSON, MOTZ, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelto
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5001 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOHN LEWIS COTTRELL, II, Defendant – Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:09-cr-00005-jpj-pms-3) Submitted: July 15, 2010 Decided: July 26, 2010 Before WILKINSON, MOTZ, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5001
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHN LEWIS COTTRELL, II,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:09-cr-00005-jpj-pms-3)
Submitted: July 15, 2010 Decided: July 26, 2010
Before WILKINSON, MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender for the Western
District of Virginia, Brian J. Beck, Assistant Federal Public
Defender, Abingdon, Virginia, for Appellant. Timothy J. Heaphy,
United States Attorney, Jennifer R. Bockhorst, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Lewis Cottrell, II, was charged with one count of
conspiracy to possess with intent to distribute and to
distribute oxycodone, in violation of 21 U.S.C. § 846 (2006),
and two counts of possession with intent to distribute and
distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1)
(2006). Cottrell pled guilty to all three charges and was
sentenced to 180 months of imprisonment. He now appeals; for
the following reasons, we affirm.
After Cottrell’s arrest on the charges to which he
eventually pled guilty, Cottrell was released on an unsecured
bond, with the condition that he not violate federal, state, or
local law. A few months after his release, Cottrell was
arrested and charged with grand larceny in Virginia state court.
As a result, the district court ordered the bond be forfeited in
part, and Cottrell returned to the custody of the Attorney
General for confinement.
The presentence report (“PSR”) prepared following
Cottrell’s guilty pleas concluded that, based on the drug
quantity involved in his offense conduct, Cottrell’s base
offense level was twenty-eight, pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 2D1.1(c)(6) (2008). The PSR
determined that because Cottrell had committed a criminal
offense while on bond, he was not entitled to an acceptance of
2
responsibility reduction, even though he had admitted to the
charged conduct and cooperated with the probation officer during
the preparation of the PSR. Thus, Cottrell’s total offense
level was twenty-eight.
However, the PSR also determined that Cottrell could be
sentenced as a career offender, pursuant to USSG § 4B1.1,
because of his prior felony convictions, for a total offense
level of thirty-four. In calculating Cottrell’s criminal
history, the PSR noted his several juvenile convictions, none of
which earned him criminal history points. Based on his adult
convictions, the PSR determined that Cottrell’s criminal history
criminal history category was VI. Accordingly, the PSR
concluded that if the court agreed that Cottrell was a career
offender, his Guidelines range for imprisonment would be 262 to
327 months, pursuant to USSG ch. 5, pt. A (sentencing table).
The PSR also noted that, in the event the court determined that
Cottrell was not a career offender, there were potential grounds
for an upward departure based on Cottrell’s prior convictions.
At sentencing, the court determined that Cottrell was
not entitled to the acceptance of responsibility reduction
because, although he had pled guilty and admitted his conduct,
he had committed a criminal violation while on bond. However,
the court sustained Cottrell’s objection regarding the career
offender designation, finding that his prior adult conviction
3
for possession of marijuana while in custody did not constitute
a controlled substance offense within the meaning of USSG
§ 4B1.2. As a result, the court found Cottrell’s total offense
level to be twenty-eight, with a resulting Guidelines range of
140 to 175 months. Nonetheless, the court sentenced Cottrell
above the Guidelines range to 180 months of imprisonment,
specifically noting Cottrell’s lengthy criminal history, the
seriousness of his offense, the need for deterrence, and the
need to protect the public. The court reiterated these factors
in its written statement of reasons.
On appeal, Cottrell challenges the reasonableness of
his sentence on three grounds, arguing: (1) that the district
court’s failure “to issue a sufficient written statement
explaining the upward departure/variance constitutes procedural
error”; (2) “the district court’s upward departure/variance was
procedurally and substantively unreasonable given that one of
the explained bases for the departure—defendant’s juvenile
criminal history—was a factor that the empirically based
criminal history guidelines disregarded and where there was no
reason given for rejecting” Guidelines policy; and (3) the
district court erred when it denied the acceptance of
responsibility reduction, “in light of Mr. Cottrell’s
uncontradicted [sic] expression of remorse, his coordinated
state and federal guilty pleas, and because the district court
4
relied upon improper factors (criminal history and juvenile
history) as a basis for denial.”
When the procedural and substantive reasonableness of
a sentence is challenged on appeal, this court reviews the
sentence using an abuse of discretion standard. See Gall v.
United States, 552 U.S. 38, 51 (2007). Procedural errors
include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any deviation from
the Guidelines range.”
Id.
We first address Cottrell’s argument that the district
court committed procedural error when it failed to give him an
acceptance of responsibility reduction. Under USSG § 3E1.1, if
a “defendant clearly demonstrates acceptance of responsibility
for his offense,” his offense level is decreased by two levels.
The commentary to § 3E1.1 lists a number of factors that may be
considered in making this determination, including admitting the
offense conduct and voluntarily terminating criminal conduct.
USSG § 3E1.1 cmt. n.1. While the commentary explains that
“[e]ntry of a plea of guilty prior to the commencement of trial
combined with truthfully admitting the conduct comprising the
offense of conviction, and truthfully admitting or not falsely
5
denying any additional relevant conduct for which he is
accountable . . . will constitute significant evidence of
acceptance of responsibility,” it also states that “this
evidence may be outweighed by conduct of the defendant that is
inconsistent with such acceptance of responsibility.” USSG
§ 3E1.1 cmt. n.3. Moreover, “[a] defendant who enters a guilty
plea is not entitled to an adjustment . . . as a matter of
right.” Id. The commentary also explains that because “[t]he
sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility,” the judge’s
determination on this reduction “is entitled to great deference
on review.” USSG § 3E1.1 cmt. n.5. Accordingly, we “review a
district court’s decision concerning an
acceptance-of-responsibility adjustment for clear error.”
United States v. Dugger,
485 F.3d 236, 239 (4th Cir. 2007).
Here, Cottrell argues that because he committed the
additional state violation prior to entry of his guilty plea and
not after, the district court should have granted him the
reduction. Moreover, he asserts that the court improperly
considered his criminal disposition as a reason for denying
acceptance. However, we have previously held that continued
criminal conduct following indictment is a sufficient reason for
denying a reduction for acceptance of responsibility. See
Dugger, 485 F.3d at 240 (finding the district court did not err
6
in denying the reduction where defendant engaged in criminal
activity following indictment, even though defendant later
admitted to all criminal conduct); United States v. Kidd,
12 F.3d 30, 34 (4th Cir. 1993) (affirming the denial of the
acceptance of responsibility reduction where defendant committed
criminal activity while on pretrial release, even though
defendant later entered a guilty plea, admitted relevant
conduct, and cooperated with his probation officer). Moreover,
although the district court did note when denying the reduction
that Cottrell had a long criminal history, the court relied on
the fact that he “engaged in serious criminal conduct after the
charges.” The court highlighted Cottrell’s prior criminal
history only in explaining that he had not accepted
responsibility and was “merely going through the motions of
contrition.”
Dugger, 485 F.3d at 241 (internal quotation marks
ommitted). Accordingly, we hold that the district court did not
clearly err in denying Cottrell a reduction for acceptance of
responsibility.
Next, Cottrell challenges the district court’s written
explanation of his sentence, arguing that the court failed to
provide a sufficient written explanation as required by
18 U.S.C.A. § 3553(c)(2) (West, Westlaw through P.L. 111-190).
Cottrell asserts that the court not only failed to fulfill the
written requirement, but also failed “to sufficiently explain
7
how the controlling criminal history scoring did not
sufficiently account for defendant’s history and
characteristic.” He further asserts in this claim and in a
separate claim that the district court’s reference to his
“criminal conduct while age 15 . . . was a factor which the
guidelines dictated not be counted given the scoring rules
applicable to juvenile convictions,” and if the court disagreed
with this it needed to explain its policy disagreement in
detail. In his reply brief, Cottrell also argues that despite
the language used by the district court, the increase in his
sentence was a departure, not a variance, and should be reviewed
as such on appeal.
When a district court sentences a defendant outside of
the established Guidelines range, § 3553(c)(2) requires the
court to “state in open court the reasons for its imposition of
the particular sentence,” and “the specific reason for the
imposition of a sentence different from that described, which
reasons must also be stated with specificity in a statement of
reasons form.” In evaluating the sentencing court’s explanation
of a selected sentence, this court has consistently held that,
while a district court must consider the statutory factors and
explain its sentence, it need not explicitly reference § 3553(a)
or discuss every factor on the record. United States v.
Johnson, 445 F.3d 339, 345 (4th Cir. 2006). At the same time,
8
however, the district court “must make an individualized
assessment based on the facts presented.” Gall, 552 U.S. at 50;
see also Rita v. United States,
551 U.S. 338, 356-57 (2007).
The reasons articulated by the district court for a given
sentence need not be “couched in the precise language of
§ 3553(a),” so long as the “reasons can be matched to a factor
appropriate for consideration . . . and clearly tied to
[defendant’s] particular situation.” United States v. Moulden,
478 F.3d 652, 658 (4th Cir. 2007).
In United States v. Carter, 564 F.3d 325 (4th Cir.
2009), we further explained that while the “individualized
assessment [of each defendant] need not be elaborate or lengthy,
. . . it must provide a rationale tailored to the particular
case at hand and [be] adequate to permit meaningful appellate
review.”
Id. at 330 (internal quotation marks omitted). Thus,
a conclusory statement that a specific sentence is the proper
one does not satisfy the district court’s responsibilities.
Id.
at 328-29. In addition, we cannot presume that the district
court adopted the arguments of one of the parties while imposing
sentence; an appellate court may not guess at the district
court’s rationale.
Id. at 329-30.
Here, the district court provided an extensive
explanation prior to sentencing Cottrell. Having recognized the
Guidelines range was 140 to 175 months, the court explained that
9
it had to impose a sentence that was not greater than necessary
to satisfy § 3553(a). The court acknowledged Cottrell’s
extensive criminal history, which began at age fifteen and
continued until, and even after, his arrest for the underlying
offense at the age of twenty-six. The court highlighted the
need for a sentence that would deter Cottrell from criminal
activity, as his prior sentences and periods of probation had
had no deterrent effect. The court also explained that
Cottrell’s offenses had been serious, and that even after being
arrested on federal charges he committed a felony while on bond.
The court stated that Cottrell’s actions indicated that he had
“little intention of changing his behavior or becoming a law
abiding, productive member of society.” Although the court
acknowledged the arguments made by Cottrell’s counsel, it found
that Cottrell’s past indicated that he would be a danger to
society when released, and “that the nature and circumstances of
the offense, as well as in particular the history and
characteristics of [Cottrell],” warranted a sentence above the
Guidelines range in order “to reflect the seriousness of
[Cottrell’s] crime” and “to protect the public from further
crimes” by him. Accordingly, the court imposed a sentence of
180 months.
Despite Cottrell’s contentions, we conclude the
district court’s sentence constituted a variance from Cottrell’s
10
Guidelines range rather than a departure. * We further conclude
that the court adequately explained the rationale for the chosen
sentence, both orally and in writing.
Here, the district court expressly relied on the
§ 3553(a) factors in sentencing Cottrell and in explaining the
above-Guidelines sentence, focusing on Cottrell’s history and
characteristics, and the need for the sentence to deter criminal
conduct and protect the public. In the written statement, the
court again noted that it was sentencing Cottrell to an
above-Guidelines sentence based on the § 3553(a) factors,
specifically “the nature and circumstances of the offense and
the history and characteristics of the defendant,” and “to
protect the public from further crimes” by Cottrell. The court
also noted Cottrell’s high likelihood of recidivism based on his
prior criminal conduct. To the extent that the court referenced
Cottrell’s juvenile convictions, it did so only in terms of
explaining the sentence pursuant to the § 3553(a)(1) factor of
the history and characteristics of the defendant. The court did
*
The Supreme Court in Irizarry v. United States, 553 U.S.
708, ___,
128 S. Ct. 2198, 2202-03 (2008), explained that the
terms “variance” and “departure” are distinct. A departure “is
a term of art under the Guidelines and refers only to non-
Guidelines sentences imposed under the framework set out in the
Guidelines.”
Id. at 2202. A variance, on the other hand, is a
non-Guidelines sentence “justified under the sentencing factors
set forth in 18 U.S.C. § 3553(a).”
Id. at 2203.
11
not use these convictions to calculate Cottrell’s criminal
history because the increased sentence was, as noted, based on a
variance and not a departure. Accordingly, we hold that the
court properly relied on the § 3553(a) factors to explain the
sentence and variance, both at the sentencing hearing and in the
written statement of reasons. Thus, there was no procedural
error by the court in its explanation of Cottrell’s sentence.
Accordingly, we affirm Cottrell’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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