United States v. Sweet
Opinion of the Court
JUDGMENT
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments of the parties. It is
ORDERED and ADJUDGED that the district court’s judgments be affirmed.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for re
MEMORANDUM OPINION
Travis Sweet pled guilty to one count of unlawful distribution of five grams or more of cocaine base and one count of unlawful distribution of cocaine base. Although initially facing a Guidelines range of 87 to 108 months,
I.
Through appointed counsel Sweet moved for a hearing on the “safety valve,” see 18 U.S.C. § 3553(f); U.S. Sentencing Guidelines Manual § 5C1.2 (2006), asserting that he had no previous convictions and that he “has told all that he knows.” Sweet Sentencing Memo, at 2 (Nov. 10, 2006). The government advised that Sweet did not qualify because he had failed to provide a truthful statement to the police, and noted that although this was the first time Sweet was to be sentenced for selling drugs, he was unemployed, committed to selling drugs, and his criminal activity had involved a significant amount of narcotics. Sweet’s motion requested that the district court make an independent determination regarding the completeness and truthfulness of his responses to government inquiries.
Before the hearing, the district court inquired whether Sweet was aware of “the potential exposure” that he would face by testifying and if he understood the risk of receiving a higher sentence. Mot. Hrg. TV. at 2 (Dec. 1, 2006). Sweet’s counsel responded, “I think he understands that,” and advised that “Mr. Sweet would like to address the [cjourt.” Id. at 3-4. Sweet’s testimony turned out to be internally inconsistent
II.
Although a failure by a sentencing judge to consider § 3553(a) factors is a “significant procedural error,” Gall v. United States, — U.S. -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), it does not necessarily constitute the “Booker error” of treating the Guidelines as mandatory. See United States v. Simpson, 430 F.3d 1177, 1183 (D.C.Cir. 2005) (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). As Sweet concedes, this court’s review is for plain error, United States v. Gomez, 431 F.3d 818, 822 (D.C.Cir. 2005); United States v. Coles, 403 F.3d 764, 767 (D.C.Cir. 2005), and we find none.
First, the sentencing judge is not 'required to refer to the factors by name, Simpson, 430 F.3d at 1186, and the sentencing hearing demonstrates that the district court considered the nature and circumstances of the offense, the characteristics of the defendant, and the need for the sentence, based upon seriousness, respect for law, and deterrence. See 18 U.S.C. § 3553(a)(1), (2). Sweet’s conflicting testimony, his gun admissions, and the detectives’ testimony were proper considerations. See Rita v. United, States, - U.S. -, 127 S.Ct. 2456, 2468-69, 168 L.Ed.2d 203 (2007). The record as a whole thus contradicts Sweet’s claim that the district court did not consider any factor.
Second, “[wjhen a defendant has not asserted the import of a particular § 3553(a) factor, nothing in the statute requires the [sentencing] court to explain sua sponte why it did not find that factor relevant to its discretionary decision.” Simpson, 430 F.3d at 1187; see Gall, 128 S.Ct. at 599. Sweet did not argue or proffer evidence regarding any § 3553(a) factor. Neither has he raised any particular factor on appeal, much less shown that failing to consider such a factor affected his substantial rights because “there would have been a materially different result, more favorable to [him].” Coles, 403 F.3d at 768. The record shows that the sentencing judge considered Sweet’s characteristics in finding “extraordinary” circumstances and sentencing him at the low end of the Guidelines range. Sentencing Hrg. Tr. at 62 (Jan. 17, 2007). Contrary to trial counsel’s suggestion that there were communication problems, the judge did not agree that Sweet “was confused about any of the questioning,” but found that “he was simply not being truthful.” Id. at 59. The record, thus, presents no occasion to conclude that a § 3553(a) factor might have changed the sentence in Sweet’s favor. Although the judge did not “state in open court the reasons for ... imposition of the particular sentence,” 18 U.S.C. § 3553(c); see Rita, 127 S.Ct. at 2468; Simpson, 430 F.3d at 1187, Sweet fails to show that error did him any harm. Rather, he concedes that “the district court might well have imposed the same sentence had these factors been considered.” Reply Br. at 2. To the extent Sweet challenges his sen
Finally, the record conclusively demonstrates that Sweet could not prove that he was denied the effective assistance of counsel under the Sixth Amendment, and hence there is no reason to remand for a hearing. United States v. Rashad, 331 F.3d 908, 912 (D.C.Cir. 2003); United States v. Geraldo, 271 F.3d 1112, 1116 (D.C.Cir. 2001). He could not show ineffective assistance of counsel on the basis of the § 3553(a) factors because the district court considered some and he points to none that could have made a difference in his sentence. Although gun use connected to the drug offense disqualifies a defendant for “safety valve” relief, see 18 U.S.C. § 3553(f)(2), Sweet also cannot show that trial counsel’s request for a hearing was unreasonable, see Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052, because counsel should have known the “safety valve” was unavailable. The plea proffer did not mention a gun. When Sweet was arrested he did not have a gun on him. In advising that Sweet did not qualify for the “safety valve” the government pointed only to Sweet’s failure to give a truthful statement about his offenses. Other pre-hearing evidence does not show Sweet’s connection to the guns. The district court observed that the evidence connecting Sweet to the guns for “safety valve” disqualification came only from “his own admissions in this courtroom.” Sentencing Hrg. Tr. at 59. In any event, loss of a “windfall” does not count as Strickland prejudice, which requires an “overriding focus on fundamental fairness.” See Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting Lockhart v. Fretwell, 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). Sweet does not claim error due to his counsel allowing him to testify and the record shows that he was given advance warning of the risk but still wished to testify. The district court’s observation that Sweet was in the position of receiving a higher sentence “after pleading by simply trying to get a reduced sentence for the safety valve,” Sentencing Hrg. Tr. at 62, shows only a recognition that Sweet’s reasonable risk had not paid off.
. The mandatory minimum sentence for unlawful distribution of five grams or more of cocaine base is five years’ imprisonment. 21 U.S.C. §§ 841(a)(1), (b)(l)(B)(iii). Sweet's base offense level was 32; his criminal history category was I. The government's sentencing memorandum recommended he receive a three-point reduction for acceptance of responsibility, placing his offense level at 29 with a Guidelines range of 87 to 108 months; with a two-level reduction pursuant to the “safety valve” provision, his offense level would become 27; the Guidelines range would be 70 to 87 months.
. For example, Sweet testified that he did not have a telephone number for his drug source and also that when he needed to make contact he called the source.
. For example, the detectives testified that they did not find believable Sweet's statements that he would give hundreds of dollars to a cocaine addict known to Sweet only as
Reference
- Full Case Name
- United States v. Travis SWEET
- Status
- Published