United States v. Clifton L. Cousins

JULIA SMITH GIBBONS, Circuit Judge,

concurring in part and dissenting in part.

I agree with the majority’s conclusion that we must remand this case for resen-tencing but disagree with the opinion’s analysis on the Rule 32(h) issue. I also write separately to make a few comments on the other issues.

Initially, although I agree with the majority’s resolution of the double-counting issue, I note that we need not resolve this issue. Cousins is a career offender, a status he does not challenge. Thus, under U.S. S.G. § 4B l.l(b)(F), his offense level is 17. Success on the double-counting issue would not alter his guideline range.

Second, I offer a few thoughts about the adequacy of the district court’s explanation of its decision to sentence Cousins to a sentence two months longer than the top of the applicable guideline range and to make the federal sentence consecutive to the state sentence. The district court’s discussion of its reasoning with respect to the sentence is fairly extensive. It includes several salient observations that might well justify the sentence imposed. For example, the court indicates that Category VI underrepresents the seriousness of the defendant’s criminal history and references the seriousness of the crime, the need to protect the public, and the likely futility of treatment for the defendant in prison. The district court’s explanation is thoughtful and covers factors admittedly relevant to sentencing. Moreover, U.S.S.G. § 5G1.3(a) directs that a consecutive sentence be imposed when the defendant committed the crime while serving a term of imprisonment. 1 We have not considered the treatment of guideline provisions of this type under an advisory guideline regime, but it is fair to say that the district court was, at a minimum, entitled to take it into account. Under these circumstances, I am reluctant to remand the case to a district judge who has doubtless given careful thought to the sentence. Yet I believe that we must do so because we cannot properly review the sentence for reasonableness without knowing why the court selected the particular sentence it imposed. The court’s failure is neglecting to tell us which, if any, of the factors it mentioned prompted the decision to sentence Cousins to 48 months and why the 48-month sentence was chosen as opposed to some other one.

Turning last to the Rule 32(h) issue, my preferred course would be declining to resolve it. We are remanding the case anyway and, upon remand, Cousins will clearly be on notice that the district court is contemplating a variance, since it previously imposed one. The question presented has divided our sister circuits, and we have no good reason to reach it here. But since the majority has chosen to reach it, I will note that any error was not a plain error affecting substantial rights. Although the majority pays lip service to the requirement that the defendant make “a showing of an actual effect on the outcome of the case,” Lopez-Medina, 461 F.3d at 745, it then effectively eliminates the requirement. The majority distinguishes Meeker by concluding that “the evidence support *583 ing the variance in this case is not ‘irre-buttable.’ ” (Op. 581.) However, prejudice is not demonstrated by a simple lack of irrebuttable evidence. “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734, 113 S.Ct. 1770 . As the majority correctly notes, Cousins merely “argues that [notice of the upward variance] would have permitted his counsel to address the district court’s concerns.” He gives no “indication as to how, if given the proper notice and opportunity to comment, he could have challenged the information.” United States v. Nappi, 243 F.3d 758, 770 (3d Cir.2001), cited with approval in Meeker, 411 F.3d at 746. The majority tacitly recognizes this when it makes its highly-qualified conclusion that “it appears at least possible that defense counsel coidd, given adequate notice, have prepared additional argument and evidence.” (Op. 581 (emphasis added).) Yet there is no evidence to support this conclusion. Cousins’s brief in this appeal was filed more than ten months after the sentencing hearing, yet in that time defense counsel still has not presented the court with an actual argument that might have affected the outcome of the case. Cousins’s conclusory assertion in his brief is an inadequate basis to find that a failure to give the Rule 32(h) notice affected his substantial rights. While the majority may be correct that it is difficult for a defendant to prove that his sentence would have been different, it is not difficult for, and the prejudice analysis requires, the defendant at least to articulate the arguments that would have been made. See Nappi, 243 F.3d at 770 (“[The defendant] must convince us that ... he would have done something by way of argument or proof ... that probably would have impacted upon the Court’s sentence.”) I thus dissent from the majority’s analysis on the Rule 32(h) issue.

. Cousins initially sent his threats from state prison and later reiterated them in an interview while in state prison.