United States v. Jesse Pennington
Opinion
Jesse Pennington pleaded guilty to distributing a Schedule I controlled substance in violation of
We affirm. The district court's comparison of Pennington to her co-defendant was not a procedural error. The comparison was reasonable and did not exclude consideration of other factors that
I. Factual and Procedural Background
In the autumn of 2015, law enforcement in Madison, Wisconsin, began investigating a ring distributing methylenedioxymethamphetamine, more commonly known as MDMA or Ecstasy, and other controlled substances. An undercover officer bought Ecstasy from Pennington twice in late 2015. The officer also met with Pennington on two other occasions around that time intending to purchase Ecstasy, but the officer never completed those sales. In *237 September 2016, the officer again twice bought Ecstasy from Pennington. And in October 2016, the officer tried to purchase crack cocaine from Pennington, but she lacked direct access to that drug.
A grand jury indicted Pennington and three others, including JonPaul Dotson, on a total of eleven counts of distributing Ecstasy and crack cocaine. The indictment charged Pennington in two of the counts. She pleaded guilty to one.
At the sentencing hearing, the government requested a prison sentence within the undisputed guideline range of ten to sixteen months. Pennington's involvement in the drug ring was at "the bottom rung of the ladder," the government acknowledged, and the court also already had sentenced Pennington's three co-defendants: two of them to four years in prison, and Dotson to about seven months of time served in pretrial detention. The judge noted that Dotson was "probably ... the smallest" rung of the ladder, a characterization that the government agreed with because Dotson "did one distribution [of crack cocaine] on one occasion." Pennington argued for probation rather than prison. Arguing that Pennington "needs help, not punishment," her lawyer emphasized Pennington's traumatic life experiences, her need to care for her children, and her cooperation with law enforcement.
The judge sentenced Pennington to one year and one day. (The "and one day" meant that she would be eligible to earn a 15% good-time credit. See
You were involved in a pattern of drug dealing that began as early as October 2014 and went through October ['16] There might be a gap in there where there aren't continuous transactions, but there was a sustained period of time of almost two years ... that begins in the fall of October '14 and continues to October '16. Even if it wasn't thoroughly continuous, it was a long period of drug dealing.
The record shows, however, that Pennington's involvement with the drug operation actually began in 2015, not 2014.
The judge deemed it unfair to give Pennington a sentence of probation when "even Mr. Dotson ... ended up serving a term of incarceration" (i.e., pretrial detention). He also mentioned Pennington's "very difficult upbringing," but he added that Pennington is not "necessarily a very good historian of her own past." The judge observed that Pennington deserved a sentence at the low end of the guideline range because she had accepted responsibility for her actions and co-operated with the authorities. In his written statement of reasons, the judge reiterated much of his explanation, with one important change: he corrected his oral error and wrote accurately that Pennington's "drug dealing activities began as early as fall 2015 and continued in the fall of 2016."
II. Analysis
On appeal, Pennington argues that the court committed procedural errors by failing to consider properly all of the
A. Standard of Review
The government argues that Pennington forfeited these arguments by not raising them in the district court. Pennington points out correctly that Federal Rule of Criminal Procedure 51(a) provides that a party need not state an "exception" to a ruling the court has already made. See, e.g.,
United States v. Bartlett
,
Both of Pennington's claims-that the district court failed to consider the § 3553(a) factors properly and that it relied on inaccurate information-assert procedural errors. See
Gall v. United States
,
B. Section 3553(a) Factors
Pennington argues that the sentencing court erred by failing to give meaningful consideration to the § 3553(a) factors that must be considered in federal sentencing. 1
*239 She first argues that § 3553(a)(6), which instructs courts to avoid sentencing disparities among defendants with similar records and criminal conduct, does not justify comparing co-defendants in the same case. She also argues that the district court focused on comparing her to Dotson to the exclusion of all the other § 3553(a) factors. We disagree.
As an initial matter, Pennington is incorrect in saying that the "unwarranted disparities" factor in § 3553(a)(6) applies only to defendants across districts and not to co-defendants in the same case. See
United States v. Solomon
,
Pennington also argues that the court violated her right to an "individualized" sentence by linking her sentence to Dotson's. See
Gall
,
C. Accuracy of Information at Sentencing
A defendant has a due process right to be sentenced based on accurate information.
United States v. Tucker
,
It is difficult to construe the judge's passing comment that Pennington is a poor historian of her past as a factual finding. Even if it were, "we defer to a district court's determination of witness credibility, which can virtually never be clear error."
Pulley
,
The closest question in this appeal stems from a factual mistake in the court's sentencing explanation. The judge said that Pennington had been involved in selling drugs for two years beginning in 2014 rather than only in the autumns of 2015 and 2016. Such factual errors in a judge's explanation of a sentence can easily require a remand for re-sentencing based on accurate information if there are indications that the inaccurate information mattered in the sentencing decision. E.g.,
United States v. Miller
,
In this case, however, we are satisfied that this error was corrected in the court's written explanation of reasons, indicating that the difference between the accurate and inaccurate information did not actually affect the sentence. When oral and written pronouncements of a
sentence
conflict, the oral controls so long as it was unambiguous.
United States v. Daddino
,
While that is the rule for a pronouncement of a sentence itself, we have not applied the same strict rule to a judge's
explanation
of a sentence. In fact, we have held the opposite.
United States v. Pankow
,
Pennington's sentence is AFFIRMED.
Section 3553(a) provides as follows:
Factors to be considered in imposing a sentence.-The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this sub-section. The court, in determining the particular sentence to be imposed, shall consider-
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for-
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines-
(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28 ); and
(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28 );
(5) any pertinent policy statement-
(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28 ); and
(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
The court's oral statement about the duration of Pennington's drug-dealing was inaccurate, not ambiguous. But whether the court relied on the inaccuracy requires close attention. We may consider the written explanation without violating this rule.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Jesse PENNINGTON, Defendant-Appellant.
- Cited By
- 59 cases
- Status
- Published