Opinion
Case No: 08-20103.
August 26, 2010
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court for Sentencing. The Government filed its Sentencing Memorandum on July 9, 2010. Defendant, who represents himself, did not file a Sentencing Memorandum; his standby counsel, Sidney Kraizman, also declined to file a Sentencing Memorandum, due to Defendant's stated wishes.
The Court adjourned Defendant's originally scheduled Sentencing on July 30, 2010, due to errors in the PSIR. The PSIR was amended and copies were sent to the parties. Neither the Government, nor Defendant filed objections to the amended PSIR.
II. DEFENDANT'S VOLUNTARY ABSENCE
On both Tuesday, August 24th, and Wednesday, August 25, 2010, Mr. Abernathy refused to leave his cell at Milan FCI to be transported to Detroit for sentencing. Mark Taylor, Correctional Systems Officer at Milan, wrote a Memorandum for Andy Cramer, Supervisory Correctional System Specialist and James Black, Acting Captain at Milan, outlining efforts undertaken on Tuesday, August 24th, to transport Mr. Abernathy to Detroit. See Exhibit A. Mr. Taylor writes that Mr. Abernathy refused to pack out and go to Court, and said "He is the Supreme ruler of himself and nobody, Foreman, Shelton, the Judge or myself can Rule over myself and tell him what he has to do." Mr. Abernathy also said that if force was used to transport him, "do what you have to do and someone will get hurt."
After getting this report, the court asked standby counsel, Sidney Kraizman, to go to Milan on the afternoon of August 24th, and speak to Mr. Abernathy about his sentencing and urge him to come to Court. Mr. Abernathy refused to see or speak to Mr. Kraizman. A record was made of Mr. Kraizman's efforts to speak to Mr. Abernathy.
The Court also sent a letter to Mr. Abernathy, which was hand delivered to him on the morning of August 25th, when marshals again attempted to transport him to Detroit. The Court's letter, attached as Exhibit B, informed Mr. Abernathy that if he continued to refuse to come to Court for sentencing, the Court had the right under federal rules to declare that he had waived his right to be present at his sentencing, and that the Court could sentence him in his absence. At the hearing, USM Ken Foreman described his unsuccessful efforts to transport Mr. Abernathy on the morning of sentencing. Additionally, Mark Taylor prepared Exhibit C, confirming the unsuccessful efforts to transport Mr. Abernathy on August 25th.
Under these circumstances, the court relies on FRCrP 43, and rules that Mr. Abernathy voluntarily waived his right to be present for sentencing:
Rule 43. Defendant's Presence
(c) Waiving Continued Presence.
(1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendre, waives the right to be present under the following circumstances:
(B) in a noncapital case, when the defendant is voluntarily absent during sentencing;
the Court proceeds to sentence Mr. Abernathy.
III. BACKGROUND
Defendant, Gary Abernathy, was charged in a two-count First Superceding Indictment with Armed Bank Robbery, Aiding and Abetting, in violation of 18 U.S.C. § 2113(a), (d), 2, and Possession of a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Defendant and co-defendant, Omar Mackie, were alleged to have used a firearm to rob a Comerica Bank in Sterling Heights, Michigan, netting proceeds of $31,856.00. On March 16, 2010, a jury convicted Defendant of both counts.
IV. ADVISORY GUIDELINES
A. Probation Department Calculations
Probation calculates an initial base offense level of 20 under § 2B3.1(a), with a two-point enhancement under § 2B3.1(b)(1) because the victim was a financial institution, and a one-point enhancement under § 2B3.1(b)(7)(B) for a loss more than $10K, but less than $50K, for a total offense level of 23. With three criminal history points and a Criminal History Category II, Probation calculates a guideline range of 51 to 63 months on Count 1. Count 2 carries a statutory mandatory minimum sentence of 84 months. The Probation Department's new calculations are accurate.
B. Court's Calculations
With a total offense level of 23, three criminal history points and a Criminal History Category II, Defendant's guideline range is 51 to 63 months on Count 1. Count 2 carries a statutory mandatory consecutive sentence of 7 years, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). Thus, the combined guideline range is 135 to 147 months.
V. CASE LAW AND ANALYSIS
A. Case Law
The Court must be sure that the sentence imposed is "sufficient, but not greater than necessary." 18 U.S.C. § 3553(a). Pre- Booker, the Sentencing Guidelines limited the type of factors a district court could consider in fashioning an appropriate sentence, and mandated the extent to which a factor had to be present to warrant a departure from the Guidelines range. Booker, 543 U.S. 220; see United States v. Crouse, 145 F.3d 786, 789-790 (6th Cir. 1998). Booker, however, rendered the Guidelines advisory. Now, sentencing courts must consider the applicable Guidelines range and the additional statutory concerns set forth in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 245-246. These § 3553(a) statutory considerations include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
. . .
(3) the kinds of sentences available;
(4) the applicable advisory Guidelines range;
(5) relevant policy statements by the Sentencing Commission;
(6) the need to avoid unwarranted sentenc[ing] disparities; and
(7) the need to provide restitution to . . . victims.United States v. Cousins, 469 F.3d 572, 576 (6th Cir. 2006) (emphasis added) (quoting 18 U.S.C. § 3553(a)) (internal quotations omitted)).
After considering these factors, the Court must impose a sentence that takes into account the statutory purposes in § 3553(a)(2):
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner . . .18 U.S.C. 3553(a)(2).
In the recent decision of Gall v. United States, the Supreme Court again clarified the appropriate approach to the review of district court sentences. Gall v. United States, 128 S. Ct. 586 (2007). District court sentences must be reasonable, and are subjected to "reasonableness' review" by the courts of appeals. Id. at 594. This review applies "the familiar abuse-of-discretion standard of review." Id; see also United States v. Vonner, 516 F.3d 382, 385-386 (6th Cir. 2008) (holding that district courts must ask whether the defendant has any objections to the sentence to ensure abuse-of discretion review).
"[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range." Id. at 596-597 (citing Rita v. United States, 127 S. Ct. 2456, 2480 (2007)). "[T]he Guidelines should be the starting point and the initial benchmark." Id. at 596. " [A]fter giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. Id. However, "[i]n so doing, he may not presume that the Guidelines range is reasonable." Id. "The Guidelines are not the only consideration. . . ." Id. (citing Rita, 127 S. Ct. at 2480). "He must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance." Id. "[A] major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." Gall, 128 S. Ct. at 596-597.
"When a defendant raises a particular argument in seeking a lower sentence, the record must reflect both that the district judge considered the defendant's argument and that the judge explained the basis for rejecting it." United States v. Lalonde, 509 F.3d 750, 770 (6th Cir. 2007) (quoting United States v. Jones, 489 F.3d 243, 252 (6th Cir. 2007)). In addition, after consideration of these arguments, "the district judge cannot simply rely upon the advisory Guidelines range, but rather `must make an individualized assessment based on the facts presented.'" Id. (quoting Gall, 128 S. Ct. at 596-597).
B. Section 3553(a) Factors
Defendant is a single, 44 year old man, with no minor children. Both of his parents are deceased. Two sisters and a brother reside in the Detroit area. Information about Defendant's family is limited due to his refusal to cooperate with the pre-sentence investigation.
Defendant obtained a GED and vocational training in custodial maintenance during a prior period of incarceration. Defendant maintained sporadic employment throughout his life, and last worked for a temporary agency in 2007.
Defendant has no known major health problems. He has a documented history of alcohol and substance abuse. Prior treatment efforts were unsuccessful.
Defendant also has a history of mental health problems and treatment; past diagnoses include mood disorder with delusional thinking and depression. This Court found Defendant incompetent to stand trial and ordered him to receive mental health treatment to restore his capacity. Defendant presented as uncooperative and combative during most of his court proceedings. He claims he is a Moorish American sovereign citizen of Moorish descent, residing in the United States.
The offense conduct is fully described in the PSIR. Defendant, along with co-defendant, Mackie, robbed a Comerica Bank branch in Sterling Heights, Michigan. Mackie, armed with a handgun, ordered employees to get down on the ground. Defendant, carrying a backpack, approached bank tellers demanding money. As witnesses testified at trial, Defendant terrorized the bank tellers, who feared they would be shot if they did not comply. He yelled at them, paced up and down the teller line demanding more money, and demanded to see the bank manager. After collecting money, Defendant and Mackie fled the scene. The robbery lasted three and a half minutes. Defendant and Mackie were later apprehended by Sterling Heights police officers, who recovered $31,856.00. A dye pack, valued at $560.00, was also destroyed; Defendant should pay restitution in that amount.
Defendant has a criminal history dating back to 1989, when he was age 22. This includes 1996 convictions for Assault with Intent to Rob While Armed and Felony Firearm, for which he was sentenced to 2 to 15 years; he robbed a cashier at gunpoint. Defendant's response to incarceration was poor. He received several misconducts for substance abuse issues and escaped from a halfway house. Defendant was paroled and returned to prison twice for violations. He was discharged from parole in January 2003. He committed this offense four years later, in September 2007. Defendant also has six active outstanding warrants with the 36th District Court, for offenses from October 2007.
Defendant refused to cooperate during the pre-sentence investigation. His sister, likewise, declined to provide any information to the probation department. Defendant has not provided the Court with any information relating to his history or characteristics which would warrant a sentence below the applicable guideline range.
VI. CONCLUSION
In light of Defendant's repeated assaultive criminal activity, there is a strong need for the sentence to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to deter similar criminal conduct, and to protect the public from further crimes of the Defendant. In light of his long history of alcohol and substance abuse, there is also a need for alcohol and substance abuse treatment. A sentence of 51 months on Count 1, and consecutive sentence of 84 months on Count 2, for a total of 135 months, is sufficient, but not greater than necessary to accomplish those goals.
VII. RIGHT TO APPEAL
The Court notifies Mr. Abernathy that pursuant to Federal Rule of Appellate Procedure 4(b)(1)(A), he may have certain appellate rights, with respect to conviction and sentencing, typically which must be exercised within 14 days after the later of:
(i) the entry of either the judgment or the order being appealed; or
(ii) the filing of the government's notice of appeal.
The Court includes the following forms for Mr. Abernathy:
(1) Notice of Appeal;
(2) Application for Appointment of Counsel Financial Affidavit; and.
(3) Application to Proceed In Forma Pauperis.
IT IS ORDERED.
U.S. Department of Justice Federal Correctional Institution 4000 East Arkona Road Milan, Michigan 48160 Inmate ABERNATHY, Gary 42004-039 D02-233L
Federal Bureau of Prisons August 24, 2010 0745 hrs. MEMORANDUM FOR Andy Cramer, SCSS J. Black, Acting Captain. FROM: Mark A. Taylor, CSO — CSD SUBJECT: On Tuesday, August 24, 2010, Inmate Abernathy was due to be picked up for court for the Eastern District of Michigan, Detroit.I contacted the unit officer, Herman, and advised him to have the inmate ready by 0640 hrs. At 0645 hrs., Officer Herman advised me that Abernathy was refusing to pack out and go to court.
Abernathy has refused to go once before and Suzi Philbrick, Supervisory Deputy, USM Detroit and I talked about what to do if he refused to go this time, she stated yesterday 08-23-2010 that 2 USM Deputies would pick him up so if there were a problem, they would handle it. When Abernathy refused this morning, I notified Philbrick via phone and e-mail. Lt Tokarz was also advised.
Deputy US Marshal Ken Foreman and Court Security Officer Shelton arrived at approximately 0710 hrs to pick Abernathy up. I advised Foreman and Shelton of the situation and they contacted Philbrick.
Foreman asked if I could bring Abernathy to the R D so they could talk to him. I called the Unit Officer and I went to the Unit and escorted Abernathy to the R D. Foreman asked Abernathy why he was refusing and all he stated was that he wasn't going. He "is the Supreme Ruler of himself, nobody, Foreman, Shelton, the Judge or myself can Rule over him and tell him what he has to do". Foreman went on to tell him that his court date was tomorrow, Wednesday 08-25-10 and that they would be back to pick him up, Abernathy again said he was not going. Foreman stated that if he refuses, they would do what they have to do to get him to court. Foreman also stated to Abernathy that he used to work here at FCI Milan and that he knows what force can be used to get him to go. Abernathy stated to "do what you have to do and someone will get hurt".
Foreman ended the conversation and I escorted Abernathy back to the Unit. The USM departed with the other inmate that was also scheduled for court with no further problems . . .
Bellow is the e-mail between S/DUSM Philbrick and me.
Hi. We're going to try again tomorrow. I have a call in to the Judge to see what her preference is if he refuses again tomorrow. If she wants to go forward (my preference, let's get him sentenced and move him along. . . . .), will you guys be prepared to extract him from his cell? I'll send 3 of my deputies to pick him up.
Susan M. Philbrick
Supervisory Deputy U.S. Marshal
U.S. Marshals Service, Eastern Michigan
313-234-5621
From: Mark Taylor [mailto:m4taylor@bop.gov]
Sent: Tuesday, August 24, 2010 6:29 AM
To: Gregory Shelton; Philbrick, Susan (USMS)
Subject: Abernathy
Just as we figured, Abernathy is refusing to go. I contacted the Lt's office. What do you want me to do? Wait until you get here?
Mark
Mark A. Taylor
Correctional Systems Officer — FDC
Federal Correctional Institution
Milan, MI. 48160
Office: 734-439-1511 ext 3142
Fax: 734-439-5536
E-Mail: M4Taylor@BOP.GOV Foreman, Ken (USMS) From: Sent: To: Subject: Attachments:
Mark Taylor [m4taylor@bop.gov] Tuesday, August 24, 2010 8:19 AM Andy Cramer Abernathy 42004-039 Court refusal memo ~OT254.PDF See attached.Mark
Mark A. Taylor
Correctional Systems Officer — FDC
Federal Correctional Institution
Milan, MI. 48160
Office: 734-439-1511 ext 3142
Fax: 734-439-5536
E-Mail: M4Taylor@BOP.GOV
This message is intended for official use and may contain SENSITIVE information. If this message contains SENSITIVE information, it should be properly delivered, labeled, stored, and disposed of according to policy. RE: Your Appearance at Sentencing
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN THEODORE LEVIN UNITED STATES COURTHOUSE 231 WEST LAFAYETTE BLVD. — ROOM 123 DETROIT, MICHIGAN 48226 CHAMBERS OF VICTORIA A. ROBERTS (313) 234-5230 UNITED STATES DISTRICT JUDGE August 24, 2010 FAX (313) 234-5493 Gary Abernathy FCI Milan 4000 East Arkona Road Milan, MI 48160 Dear Mr. Abernathy:The Court has been advised that you refused to leave your cell today to be transported to the Detroit area. As you are aware, you are scheduled to be sentenced tomorrow, August 25, 2010 at 10:30 a.m. at the Theodore Levin Courthouse in Detroit. You are advised that you have the right to be present and to allocute at your Sentencing. However, under Federal Rule of Civil Procedure 43(c)(1)(B), you may waive your right to be present if you are voluntarily absent during sentencing.
Another effort will be made to transport you to court tomorrow. If you again refuse to leave your cell, the Court will consider you to be voluntarily absent and to have waived your right to be present for sentencing. Any questions or concerns should be addressed to the Court or to your standby counsel, Sidney Kraizman. U.S. Department of Justice Federal Correctional Institution 4000 East Arkona Road Milan, Michigan 48160 Inmate ABERNATHY, Gary 42004-039 D02-233L nd
Federal Bureau of Prisons August 25, 2010 0638 hrs. MEMORANDUM FOR: All concerned CC: A.W. Stancil CMC Guidry SCSS Cramer E/D Court FROM: Mark A. Taylor, CSO — Correctional Systems SUBJECT: Court Refusal, 2 time. On Wednesday, August 25, 2010, Inmate Abernathy was due to be picked up for court at 0700 hrs., for the Eastern District of Michigan, Detroit.Inmate refused to comply.