United States v. Thompson
Opinion of the Court
Damon M. Thompson appeals the 192-month sentence he received following his guilty plea to the charges of conspiracy to distribute over five kilograms of cocaine and using a firearm in relation to drug trafficking. Thompson argues that this sentence is unreasonable because it is un-warrantedly disparate from the sentence of fifty-five months his coconspirator, Mi Jefferson, received for the same conspiracy charge. Because Thompson’s sentence was within the applicable Guidelines range, his sentence is presumptively reasonable. Additionally, the disparity between the sentence Thompson received and the sentence Jefferson received is not unreasonable in light of the additional charge against Thompson and Thompson’s more extensive criminal history. The sentence imposed by the district court is, therefore, affirmed.
I.
The charges against Thompson arise from his attempt to purchase cocaine from a distributer in Arizona in order to resell the cocaine in Ohio. In March of 2004, Thompson contacted an individual in Tucson whom Thompson believed to be a cocaine distributer. That individual was, in fact, an undercover DEA agent. Thompson traveled to Tucson twice to negotiate the purchase of fifty kilograms of cocaine,
In June 2004, Jefferson waived indictment and, pursuant to a plea agreement, pled guilty to one count of conspiracy to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846 and two criminal forfeiture counts. In February 2005, United States District Judge Gregory L. Frost sentenced Jefferson to fifty-five months incarceration.
Thompson was indicted by the Grand Jury on August 12, 2004. On December 17, 2004, pursuant to a plea agreement, Thompson pled guilty to one count of conspiracy to possess with intent to distribute over five kilograms of cocaine under 21 U.S.C. § 846, one count of possession of a firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(e)(1)(A), one count of forfeiture under 21 U.S.C. § 853(a)(2), and one count of forfeiture of a firearm under 18 U.S.C. § 924(d)(1). On May 11, 2005, the Government filed a motion for downward departure for substantial assistance on behalf of Thompson. The presentence investigation report (PSIR) determined that Thompson had an adjusted offense level of thirty-three and a criminal history of IV as to Count One, the conspiracy to distribute charge, resulting in a Guidelines range of 188-235 months. Count Two, possession of a firearm, in furtherance of a drug trafficking offense, required a mandatory consecutive term of not less than sixty months.
On May 12, 2005, the district court held a sentencing hearing for Thompson during which the court considered a number of requests for downward departure under the Guidelines. First, Judge James L. Graham considered Thompson’s argument that Jefferson’s fifty-five month sentence and the sentences imposed in two other cases involving similar charges justified a downward departure to avoid unwarranted disparity. In rejecting Thompson’s disparity argument, the district court referred to “the fact that Mr. Thompson’s criminal history is much more extensive than his codefendant in this case.” Second, the court rejected Thompson’s requests for departures because of the harshness of Thompson’s presentence confinement and physical impairment, Thompson’s family background, and his allegation of third-party coercion. Third, the court granted a downward departure because the price of the cocaine involved in this transaction was below market and granted the Government’s motion for downward departure, resulting in a final total offense level of twenty-nine.
Having determined the applicable Guidelines range, the district court then heard general arguments on the appropri
II.
Thompson’s sentence is not unreasonable because the district court properly considered the alleged disparity between his sentence and his co-defendant’s sentence in the context of a possible Guidelines departure and again when weighing the factors in 18 U.S.C. § 3553(a). “The sentence imposed by the district court is reviewed for reasonableness and must be affirmed if it is reasonable. A sentence faffing within the relevant Guidelines range is entitled to a rebuttable presumption of reasonableness.” United States v. Carson, 469 F.3d 528, 530-531 (6th Cir. 2006) (citing United States v. Williams, 436 F.3d 706, 707-08 (6th Cir. 2006)). This court reviews sentences for both procedural reasonableness and substantive reasonableness. United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006).
The sentence imposed by the district court is procedurally reasonable because the district court properly calculated the applicable Guidelines range and, recognizing the non-mandatory nature of the Guidelines, considered the other factors listed in 18 U.S.C. § 3553(a). See United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). While the primary thrust of Thompson’s argument on appeal involves the substantive reasonableness of the disparity between the sentence that he received and the sentence his co-conspirator received, Thompson also argues that the district court failed to consider whether a lower sentence was sufficient to satisfy the sentencing goals in 18 U.S.C. § 3553(a). Contrary to Thompson’s assertion, the district court expressly considered “the kinds of sentences that are afforded in this case,” including the possibility of a lower sentence, but found that the circumstances of this case did not justify a lower sentence. Therefore, while consideration of the § 3553(a) factors “need not be evidenced explicitly,” the record here clearly reflects that the district court considered Thompson’s arguments for a lower sentence. Williams, 436 F.3d at 708.
Thompson’s sentence is also substantively reasonable because the disparity between Thompson’s sentence and the sentence imposed on his co-conspirator is not unreasonable in light of the dissimilarities between the two defendants. Thompson’s relies on 18 U.S.C. § 3553(a)(6), which provides that one of the factors that a court must consider when imposing a sentence is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” However, in a case reversing a below-Guidelines departure prior to Booker, this court reasoned that “[t]he objective of this statute is not to eliminate sentence disparities between defendants of the same case who have different criminal records; rather, the objective is to eliminate unwarranted disparities nationwide.” United States v. LaSalle, 948 F.2d 215, 218 (6th Cir. 1991) (internal quotation marks and citation omitted). This court in
However, even if disparity between co-defendants could result in an unreasonable sentence after Booker in some cases, that would not be the case here because Thompson and Jefferson do not have similar records. There are two significant differences between Thompson and his cocon-spirator that explain the disparity between their sentences. First, Jefferson was not armed during the drug purchase from which the charges in this case arise. Therefore, only Thompson was charged with possession of a firearm in furtherance of a drug trafficking offense,
A second difference between Thompson and Jefferson, which was recognized by the district court, is that “Thompson’s criminal history is much more extensive than his codefendant in this case.”
Because the additional charge against Thompson and Thompson’s extensive criminal history justified the larger sentence Thompson received, no unwarranted disparity resulted from the district court’s imposition of a sentence within the relevant Guidelines range. Thompson has, therefore, provided this court with no reason to hold that the sentence imposed by the district court was unreasonable.
III.
For the foregoing reasons, the sentence imposed by the district court is AFFIRMED.
. Thompson relies on United States v. Morrow, 977 F.2d 222 (6th Cir. 1992), to argue that Jefferson was "equally culpable for the use of a firearm” and the additional sixty-month sentence for Thompson was therefore unwarranted. However, in Morrow this court merely upheld the conviction of an individual charged with aiding and abetting the use of a firearm in furtherance of a trafficking offense. Id. at 230-31. Morrow did not deal with relative punishment levels for aiders versus principals.
. While Jefferson’s criminal history is not part of the record in this case, Thompson concedes the existence of a disparity between his criminal history and Jefferson’s. Accordingly, Thompson's reliance on United States v. Tzoc-Sierra, 387 F.3d 978 (9th Cir. 2004) is misplaced. In Tzoc-Sierra, the Ninth Circuit held that a downward departure was justified by the disparity between the sentence imposed on the defendant-appellee and the sentences imposed on his co-defendants in the same case. However, the court explicitly noted that the defendant-appellee in that case had “no criminal history.” Id. at 981. The Ninth Circuit did not hold that disparate sentences for co-defendants with different criminal histories and facing different charges would warrant a departure. Id.
Concurring Opinion
Circuit Judge, concurring.
Because Thompson had a more extensive criminal history than his co-conspirator Jefferson, it is unnecessary to determine the effect, if any, of our pre-Booker precedent cited in the majority opinion regarding the requirement in 18 U.S.C. § 3553(a)(6) that courts must consider in sentencing “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” As Thompson and Jefferson do not have “similar records,” there are no “unwarranted sentence disparities” presented by Thompson that would trigger § 3553(a)(6). In my view, § 3553(a)(6) may require comparison of sentences of co-participants in particular crimes “to avoid unwarranted sentence disparities,” but we need not, and do not, reach that issue today because of the differences between Thompson and Jefferson. With that understanding, I concur.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Damon M. THOMPSON, Defendant-Appellant
- Cited By
- 5 cases
- Status
- Unpublished