USA v. Whitney Atkinson

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. David W. McKeague, Circuit Judge; Helene N. White, Circuit Judge and Jack Zouhary, U.S. District Judge.

Case: 10-1273

Document: 006110999245

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0429n.06
FILED

No. 10-1273

Jun 28, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WHITNEY ATKINSON,
Defendant-Appellant.

BEFORE:

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LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN

OPINION

McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.*

PER CURIAM.

This is the second time around for Defendant-Appellant Whitney

Atkinson’s appeal of his sentence on federal firearm charges. In August 2007, Atkinson, who pled
guilty to two firearm charges, was sentenced to a total of 240 months based on a Sentencing
Guidelines range of 262–327 months. Atkinson’s Guidelines range calculation was driven by a
career-offender designation stemming from Atkinson’s two prior state convictions that occurred
close in time but were not directly related. The state court sentenced Atkinson for both crimes
during a single sentencing proceeding.
At the time of his 2007 federal sentencing, Amendment 709 to the Guidelines was pending.
Amendment 709 altered the career-offender determination by providing that convictions sentenced
on the same day would not be treated as separate crimes when considering the career offender
*

The Honorable Jack Zouhary, United States District Judge for the Northern District of
Ohio, sitting by designation.

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designation. USSG § 4A1.2(a)(2), (3); USSG App. C, amend. 709 (2007). Amendment 709 went
into effect in November 2007, slightly more than two months after Atkinson was sentenced in federal
court. The Amendment was not designated as retroactive. See United States v. Horn, 612 F.3d 524,
524 (6th Cir. 2010).
Atkinson appealed the federal sentence in September 2007, arguing the district court erred
in failing to consider the effect of the then-proposed Amendment 709 when it imposed the 240month sentence. In December 2009, this Court remanded the case for resentencing with instructions
for the district court to consider that Amendment 709 became effective shortly after sentencing.
United States v. Atkinson, 354 F. App’x 250, 253–54 (6th Cir. 2009).
On remand, the district court invited the parties to submit memoranda in advance of the
resentencing. At the resentencing, the court considered the arguments raised in the memoranda,
discussed the reasons for not applying Amendment 709, and subsequently imposed the same 240month sentence. Atkinson now claims the district court refused to consider the effect of Amendment
709, as this Court instructed.
Our review of the district court’s sentencing decision “is limited to determining whether the
sentence is reasonable under an abuse-of-discretion standard.” United States v. Perez-Vasquez, 570
F.3d 692, 695 (6th Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). “The
reasonableness review is split into two parts: procedural reasonableness and substantive
reasonableness.” United States v. Benson, 591 F.3d 491, 500 (6th Cir. 2010) (citing United States
v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)).
The resentencing was procedurally reasonable. “A sentence is procedurally inadequate if the
district court fails to calculate properly the Guidelines range, treats the Guidelines as mandatory, fails
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to consider the 18 U.S.C. § 3553(a) factors, selects the sentence based upon clearly erroneous facts,
or fails to adequately explain the chosen sentence.” United States v. Harmon, 607 F.3d 233, 238 (6th
Cir. 2010). A party must make specific objections to purported procedural errors; if the procedural
objections are too vague, a plain error standard applies to procedural reasonableness arguments. See
Harmon, 607 F.3d at 237–38.
Atkinson fails to identify any specific procedural errors in his resentencing, and he
acknowledges the district court did not miscalculate the Guidelines range under the law as it existed
when he was sentenced. As evidenced by the resentencing colloquy, the district court did not treat
the Guidelines as mandatory. Nor did the court refuse to consider the policy behind the nonretroactive Amendment 709. Further, the district court considered the Section 3553(a) factors.
Finally, the district court did not base the sentence upon clearly erroneous facts or fail to adequately
explain the sentence. While Atkinson may not like the district court’s explanation as to why the
same 240-month sentence was imposed, there was no procedural error in the resentencing.
Likewise, the resentencing was substantively reasonable. Atkinson characterizes the district
court’s statements during the resentencing colloquy as a “refusal to exercise discretion,” which
resulted “in an unreasonable sentence,” but the transcript of the resentencing shows otherwise.
The district court considered the reasoning and rationale behind Amendment 709 and
contrasted it with the specific facts of Atkinson’s prior convictions. The court determined that
giving Atkinson the benefit of the then-proposed Amendment would simply be a matter of “exalting
form over substance.” In support of its decision, the court posed hypotheticals to counsel, provided
a short summary of the facts of Atkinson’s two prior convictions, and summarized the scenario that
led to Atkinson’s state court sentencing. Specifically, the court noted Atkinson committed two
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armed robberies a month apart, was fortunate not to have been arrested in the intervening month, and
then was sentenced in a single hearing for both crimes as a matter of convenience and efficiency.
The district court concluded by stating: “But common sense tells me that even before
November 1, two separate charges, two separate victims, two separate times, sentencing by
convenience of the circuit court at the same time, but two different dockets means they can well be
treated differently, and for good reason.” Even if this Court “might reasonably have concluded that
a different sentence was appropriate,” Gall, 552 U.S. at 51, the district court expressed its reasons
for considering, but rejecting the application of Amendment 709, and such consideration is sufficient
to withstand reversal.
AFFIRMED.

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