USA v. Monique Tisdel

Filing

OPINION filed : The district court s sentencing determination is AFFIRMED, decision not for publication. R. Guy Cole , Jr. (AUTHORING), Chief Circuit Judge; Martha Craig Daughtrey and Bernice Bouie Donald, Circuit Judges.

Case: 15-3217

Document: 30-2

Filed: 10/27/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0717n.06
Case No. 15-3217

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff-Appellee,
v.
MONIQUE TISDEL,
Defendant-Appellant.

BEFORE:

Oct 27, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

OPINION

COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.

COLE, Chief Judge. Monique Tisdel pleaded guilty to trafficking in heroin. She faced
upwards of 24 months’ imprisonment under the U.S. Sentencing Guidelines (“USSG”). Instead,
the district court varied downward and imposed a term of one year and one day in prison.
Finding no error, we affirm.
I.
In December 2013, federal agents investigating a drug ring picked up a series of phone
calls between Tisdel and Mark A. Makupson. These calls revealed that Tisdel was acting as a
courier for Makupson, dealing small amounts of heroin and providing funds for the purchase of
additional heroin. A grand jury indicted Tisdel for her role, albeit minor, in this operation. She

Case: 15-3217

Document: 30-2

Filed: 10/27/2015

Page: 2

Case No. 15-3217
United States v. Tisdel
pleaded guilty to one count of conspiracy to distribute and possess with the intent to distribute
heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(C).
A.
A probation officer prepared a Presentence Investigation Report (“PSR”) for the district
court. See 18 U.S.C. § 3352(a); Fed. R. Crim. P. 32. With respect to Tisdel’s “offense level,”
the PSR began with a base level of 18 because the drug quantity at issue was between 40 and 60
grams of heroin. See USSG § 2D1.1(c)(11). After a five-level decrease, the offense level came
down to 13. See USSG §§ 3B1.2(b), 3E1.1(a), (b). As for her “criminal history,” the PSR
placed Tisdel in category III because she had three countable “prior sentences” between March
and October of 2013—for drug possession and possession of criminal tools, driving under the
influence, and driving under suspension—and because she committed the instant heroin offense
while under probation. See USSG § 4A1.1(c), 1.1(d), 1.2. Ultimately, the PSR calculated the
guidelines range: a total offense level of 13 and a criminal history category of III, amounting to a
sentence of 18 to 24 months’ imprisonment. See USSG § 5A.
B.
At the sentencing hearing, the district court agreed with the PSR’s recommendation.
Tisdel’s counsel objected, arguing that, although “according to the system . . . she does fit within
[c]ategory III,” this finding would be unfair because it “overstates the seriousness of her
[c]riminal [h]istory and her likelihood of recidivism.” Further, as Tisdel’s counsel pointed out,
she “has no offenses of violence in her past” and “never served a prior sentence.” Tisdel hoped
for a criminal history reduction because it would allow a discretionary split-sentence of six
months’ imprisonment and six months’ home confinement. See USSG § 5C1.1(d)(2).

-2-

Case: 15-3217

Document: 30-2

Filed: 10/27/2015

Page: 3

Case No. 15-3217
United States v. Tisdel
The district court considered this argument, but pointed to countervailing concerns of
recidivism. The court noted that Tisdel “caught a break” on her March 2013 drug possession
conviction when she was granted intervention in lieu of conviction, but “less than five months
later” she became involved in this case. Moreover, the district court explained that “[c]riminal
[h]istories are largely related to the underlying offense. . . . [N]ot . . . to whether somebody
served jail time before.” The court did not find that category III over-represented Tisdel’s
criminal history and, instead, thought it was “in line with what the Sentencing Commission had
intended.”
After considering all party objections and the 18 U.S.C. § 3553(a) sentencing factors, the
court ultimately “g[a]ve her a variance in the case” and imposed a sentence of one year and one
day in federal custody.
II.
We review sentencing decisions under an abuse-of-discretion standard. United States v.
Coppenger, 775 F.3d 799, 802–03 (6th Cir. 2015). All sentences, “whether inside, just outside,
or significantly outside the Guidelines range,” Gall v. United States, 552 U.S. 38, 41 (2007),
must be procedurally and substantively reasonable. See United States v. Kamper, 748 F.3d 728,
739 (6th Cir. 2014). Such review entails “consider[ing] not only the length of the sentence but
also the factors evaluated and the procedures employed by the district court in reaching its
sentencing determination.” United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). However,
because “[d]istrict courts have an institutional advantage over appellate courts in making”
sentencing determinations, Koon v. United States, 518 U.S. 81, 98 (1996), the mere “fact that the
appellate court might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal.” Gall, 552 U.S. at 51.

-3-

Case: 15-3217

Document: 30-2

Filed: 10/27/2015

Page: 4

Case No. 15-3217
United States v. Tisdel
III.
Tisdel primarily faults the district court for denying her “request to be placed in criminal
history category II,” which she claims resulted in an unreasonable sentence. That argument,
however, is foreclosed. Tisdel may not appeal the district court’s refusal to depart downward
under USSG § 4A1.3(b)(1). In any case, we find no procedural or substantive error in the district
court’s sentencing determination.
A.
On appeal, a defendant may not challenge a district court’s refusal to depart downward
“unless the record reflects that the district court was not aware of or did not understand its
discretion to make such a departure.” United States v. Puckett, 422 F.3d 340, 345 (6th Cir. 2005)
(quoting United States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002)). We have long held that a
sentence is “not appealable on the grounds that the sentencing judge failed to depart from the
Guidelines on account of certain factors which the defendant feels were not considered by the
Guidelines and should reduce his sentence.” United States v. Draper, 888 F.2d 1100, 1105 (6th
Cir. 1989).
Tisdel has not shown that the district court misunderstood its discretion. See United
States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008) (holding that the district court need not
“explicitly state that it is aware of its discretion,” rather, we “presume” as much “absent clear
evidence to the contrary”).

Here, the district court understood the advisory nature of the

guidelines, as evinced by its words and actions. As the sentencing transcript reflects, the district
court considered the Sentencing Commission’s intent, understood the policy undergirding USSG
§ 4A1.3 departures, and found that Tisdel’s criminal history was not over-represented. See
United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009) (declining to review the district

-4-

Case: 15-3217

Document: 30-2

Filed: 10/27/2015

Page: 5

Case No. 15-3217
United States v. Tisdel
court’s refusal to grant a downward departure under USSG § 4A1.3(b)(1) where the sentencing
judge merely stated “the circumstances here . . . are not so exceptional as to form the factual
basis for any such departure or variance”); United States v. Moore, 225 F.3d 637, 643 (6th Cir.
2000) (noting that the district court need not engage in a “ritualistic incantation” to show that it
adequately considered its discretion to depart downward on the basis of criminal history).
Moreover, the court ultimately granted a variance, which further confirms that it understood the
discretionary nature of the guidelines.
B.
In reviewing Tisdel’s sentence for reasonableness, we “must first ensure that the district
court committed no significant procedural error.”

Gall, 552 U.S. at 51.

Procedural

reasonableness tracks what went into the punishment determination. For example, in reaching its
determination, the district court must have correctly calculated the guidelines range, considered
the § 3553(a) factors, adequately explained its decision after hearing out the parties’ arguments,
and treated the guidelines as advisory. Id.; United States v. Grossman, 513 F.3d 592, 595 (6th
Cir. 2008). Where a party has failed to object to a procedural defect below, we review the claim
of procedural unreasonableness for plain error. United States v. Vonner, 516 F.3d 382, 385–86
(6th Cir. 2008) (en banc).
Under any standard of review, however, the district court’s methodology clears each
procedural hurdle. First, the district court correctly calculated the guidelines range. Tisdel
concedes this point and her counsel admitted as much at the sentencing hearing. Second, the
district court considered the § 3553(a) factors, including Tisdel’s beneficial “history and
characteristics.” For example, the court noted that “a fair number” of Tisdel’s prior offenses
“[did not] score because they [were] driving under suspension and other traffic violations.” The

-5-

Case: 15-3217

Document: 30-2

Filed: 10/27/2015

Page: 6

Case No. 15-3217
United States v. Tisdel
court also pointed out that Tisdel was “a smaller player” in the Makupson conspiracy. Further,
the court stated that Tisdel’s “good work record” and “good relationship with [her] immediate
family” all “work[ed] to [her] benefit.” Third, the district court addressed Tisdel’s argument for
leniency, explaining that, on balance, the circumstances did not warrant a criminal history
departure:
Well, in this case, I have set . . . the Criminal History Category at . . . III. I don’t
find that it overrepresents [under USSG § 4A1.3]. I think it is in line with what
the Sentencing Commission had intended. . . . [But] having considered all [of the
18 U.S.C. § 3553(a)] factors, . . . I am going to give a variance in the case.
Fourth, as demonstrated above, the court treated the guidelines as advisory.
In sum, the sentencing judge need only “set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for exercising his own
legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007) (upholding
sentence where “judge’s statement of reasons [were] brief but legally sufficient”). The district
court did just that.

See, e.g., United States v. Bolds, 511 F.3d 568, 582 (6th Cir. 2007)

(affirming sentence as procedurally reasonable where district court accurately calculated the
sentencing range, considered the § 3553(a) factors, including the policy statements of the
Sentencing Commission, as well as the defendant’s arguments for a lower sentence, and
explained the reasons for imposing the sentence).
C.
“Assuming that the district court’s sentencing decision [was] procedurally sound,” we
next “consider the substantive reasonableness of the sentence.”

Gall, 552 U.S. at 51.

Substantive reasonableness asks whether the punishment itself was appropriate. We must “take
into account the totality of the circumstances, including the extent of any variance from the

-6-

Case: 15-3217

Document: 30-2

Filed: 10/27/2015

Page: 7

Case No. 15-3217
United States v. Tisdel
Guidelines range.”

Id.

If the sentence is within the guidelines range, we may apply a

“presumption of reasonableness.” Id.; Vonner, 516 F.3d at 389–90. This presumption “naturally
extends to sentences below the Guidelines range.” United States v. Pirosko, 787 F.3d 358, 374
(6th Cir. 2015).
Tisdel’s sentence was substantively appropriate.

The district court considered all

arguments and presented an adequate rationale, in line with the sentencing factors and
guidelines-policy. See United States v. Curry, 536 F.3d 571, 573–74 (6th Cir. 2008) (per
curiam) (upholding a sentence as substantively reasonable where the district court “considered
[the defendant’s] sentencing range and the factors in § 3553(a) before imposing a [below-theguidelines] sentence”).

Recognizing the need for “adequate deterrence,” 18 U.S.C.

§ 3553(a)(2)(B), the district court explained why it imposed the one year and one day prison
term. Here, the district court was concerned with Tisdel’s recent drug-related conviction because
she was “given a break” and went “back to criminal conduct” within months. That pattern of
recidivism, the district court stated, “suggests that a longer sentence may be needed.” Moreover,
the court correctly identified that its determination was “in line with what the Sentencing
Commission had intended.”

See USSG § 4A1.3 cmt. background (describing “younger

defendants . . . who are more likely to have received repeated lenient treatment, yet who may
actually pose a greater risk of serious recidivism than older defendants”).
In any case, the district court imposed a below-the-guidelines sentence. See United
States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013) (stating that defendants who seek to challenge
the substantive reasonableness of a below-the-guidelines sentence “bear a heavy burden”). Upon
motion of the government under USSG § 5K1.1, the court allowed a downward departure in
Tisdel’s offense level to 12. On top of that, after discussing the § 3553(a) factors, the district

-7-

Case: 15-3217

Document: 30-2

Filed: 10/27/2015

Page: 8

Case No. 15-3217
United States v. Tisdel
court granted a sentence variance.

Her sentence dropped from a potential maximum of

24 months to only one year and one day. Tisdel’s variance was so low that it amounted to a
bottom-of-the-guidelines sentence for the next lowest criminal history category. The court
effectively gave her what she asked for. That we might have further extended the district court’s
leniency to a departure or a split-sentence does not justify reversal. See Gall, 552 U.S. at 51.
IV.
Tisdel could have received upwards of 24 months in prison, but she only received one
year and one day.

She may not appeal the district court’s refusal to depart downward.

Moreover, her sentence was procedurally and substantively reasonable. For these reasons, we
affirm the district court’s sentencing determination.

-8-