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Sixth Circuit: Sentence Procedurally Unreasonable Where District Court Failed to Explain Decision to Impose Consecutive Sentences and Substantively Unreasonable Where Court Improperly Weighed Sentencing Factors

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that Andrew Damarr Morris’ sentence was procedurally unreasonable because the U.S. District Court for the Western District of Michigan failed to adequately explain its decision to impose consecutive sentences, and the sentence was substantively unreasonable because the District Court improperly weighed the sentencing factors of 18 U.S.C. § 3553(a).

In 2008, Morris was convicted of two counts: possession with intent to distribute cocaine base (Count 1); possession of a firearm in furtherance of a drug-­trafficking offense (Count 2). He was sentenced to 156 months in prison followed by two concurrent terms of supervised release. He began his supervised release in June 2016.

In January 2021, Morris was charged with 17 violations of supervised release, including resisting and obstructing police (a Grade A violation), in connection with his threatening a victim with a pneumatic pistol and his subsequent vehicular flight from police officers at high speeds in a residential neighborhood with methamphetamine in his possession. The District Court found Morris guilty of 12 violations, including resisting and obstructing police. His Guidelines range was 51 to 63 months. The District Court imposed a sentence of 48 months’ imprisonment – 48 months on Count 2 and time served on Count 1.

While his appeal was pending, the U.S. Supreme Court issued its opinion in Borden v. United States, 141 S. Ct. 1817 (2021), which held that resisting and obstructing police is no longer a Grade A violation. Morris’ case was remanded for resentencing.

At resentencing, Morris had already served 22 months in custody. His Guidelines range without the Class A violation was 21 to 27 months in prison. The U.S. Probation Office did not identify “any aggravating or mitigating factors that may warrant a sentence outside the applicable range of imprisonment.”

The District Court focused on Morris’ prior criminal history, observed Morris was in his early 40s, and that Morris had “been at this for a long time now.” The District Court discounted Morris’ assertions that he “was focused on staying away from all negative and criminal activity and doing what is right going forward.” The District Court reasoned “you can pretty much reach the same result as the earlier sentencing because of the discretion to treat the sentencing of the two offenses as consecutive, which I plan to do.” It resentenced Morris to two consecutive 24-­month terms of imprisonment, with no additional supervised release on Count 1 and 12 months of additional supervised release on Count 2. Morris timely appealed, arguing his sentence was both procedurally and substantively unreasonable.

The Court began its analysis by observing “[p]rocedural reasonableness requires the district court to ‘properly calculate the [G]uidelines range, treat that range as advisory, consider the sentencing factors of 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select the sentence based on facts that are not clearly erroneous, and adequately explain why it chose the sentence.’” United States v. Rayyan, 885 F.3d 436 (6th Cir. 2018) (citing Gall v. United States, 552 U.S. 38 (2007)). The explanation for the chosen sentence must allow for appellate review and promote the perception of fair sentencing. Gall. “[A] consecutive sentence is unreasonable if the district court fails to adequately explain why the sentence is consecutive.” United States v. Perez-­Rios, 846 F.App’x 371 (6th Cir. 2021).

The Court stated “Congress has given district courts discretion to decide whether to impose consecutive or concurrent sentences.” 18 U.S.C. § 3584(a). District Courts must consider the § 3553(a) factors (see 18 U.S.C. § 3584(b)) and “must make generally clear the rationale under which it has imposed the consecutive sentence.” United States v. Johnson, 640 F.3d 195 (6th Cir. 2011).

In the present case, the only clear explanation for the consecutive sentences was that the District Court wanted to impose the same sentence it had previously imposed, despite the significantly lower Guidelines range. “Such an explanation does not promote the perception of fair sentencing,” according to the Court. Neither did the District Court “consider many of the relevant sentencing factors, including but not limited to ‘the need to avoid unwarranted sentence disparities.’” 18 U.S.C. § 3553(a)(6). Also problematic was the District Court’s “failure to explain its decision to increase Morris’s sentence on Count 1 from ‘time served’ to 24 months’ imprisonment post-­remand.” These omissions required the Court to “speculate” as to the District Court’s reasoning and constitute reversible error. See United States v. McBride, 434 F.3d 470 (6th Cir. 2006) (“To the extent that the court hides its reasoning or requires us to ponder and speculate, the more likely we are to find procedural unreasonableness in the court’s sentencing determination.”).

Turning to the issue of substantive reasonableness, the Court explained that “substantive reasonableness” focuses on “whether a sentence is too long (if a defendant appeals) or too short (if the government appeals)” and “whether the court placed too much weight on some of the § 3553(a) factors and too little on others in sentencing the individual.” Rayyan. Weighing the factors “is a matter of reasoned discretion, not math.” Id.

Where, as here, the District Court imposes a sentence that deviates from the Guidelines range, there must be “a justification [that] is sufficiently compelling to support the degree of variance.” United States v. Perez-­Rodriguez, 960 F.3d 748 (6th Cir. 2020). “The greater the variance, the more compelling the justification must be.” Id. “When varying outside the Guideline range, the district court should explain ‘how the present case is different from the typical or mine-­run case that occupies the heartland to which the Commission intends individual Guidelines to apply.’” Id.

In the present case, the sentence imposed was nearly double the high end of the Guidelines range. The District Court’s reasoning was based on Morris’ criminal history – but the Guidelines already accounted for that factor, according to the Court. “[I]mposing an extreme variance based on that same criminal history” would be inconsistent with the sentencing goals of § 3553(a). United States v. Bistline, 665 F.3d 758 (6th Cir. 2012). The Court concluded that “the district court improperly weighed the § 3553(a) factors by placing considerable weight on a couple of factors and no weight on several other factors. This renders the sentence in this case substantively unreasonable.” Thus, the Court held that the sentence imposed by the District Court was both procedurally and substantively unreasonable.

Accordingly, the Court vacated Morris’ sentence and remanded for resentencing. See: United States v. Morris, 71 F.4th 475 (6th Cir. 2023).  

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