                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0730n.06

                                           No. 08-2547
                                                                                          FILED
                                                                                      Nov 19, 2010
                                                                                LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


United States of America                                 )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF MICHIGAN
                                                         )
Joshua Bruce Vicol,                                      )                  OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        MARTIN and McKEAGUE, Circuit Judges; and LUDINGTON, District
               Judge.*

       McKeague, Circuit Judge. This case poses the question whether, on remand after an

incorrect calculation under the sentencing guidelines, a district court can consider post-sentencing

rehabilitative efforts to grant a downward departure in its resentencing. The district court, relying

on two cases within this Circuit, determined that it could not appropriately consider such evidence,

and sentenced defendant to the low end of the appropriate guideline range.

       Whether evidence of post-sentencing rehabilitation can be considered in such a re-sentencing

poses a close question; indeed, the issue has been accepted for review by the Supreme Court in

Pepper v. United States, 130 S. Ct. ___ (cert. granted June 28, 2010); decision below at 570 F.3d

958 (8th Cir. 2009). However, we need not resolve the issue in the present case. The district court

       *
       Honorable Thomas L. Ludington, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 08-2547
United States v. Vicol

was very clear that even if it were to consider the new evidence, it would not impose a lower

sentence. Therefore, any error was harmless, and we AFFIRM the district court’s decision.

                                         I. BACKGROUND

        The defendant, Joshua Vicol, was indicted for kidnapping two women on July 24, 2003. The

jury heard that prior to that evening, defendant was in county jail and told fellow inmates that he was

going to go after his girlfriend when he got out, and he described a plan to abduct her. (R.E. 108,

Tr. Vol. 2, 226-28.) One of his victims, Brooke Firestone, testified that she was the mother of the

defendant’s child but they had separated. Vicol maintains the two were still together. On July 24,

2003, Firestone agreed to meet Vicol at a party, along with her friend Theresa Volker. During a

conversation between Vicol and Firestone, Vicol became angry, which he alleged triggered a “manic

episode.” (Appellant Br. At 10.) Firestone testified that he grabbed her face, pushed her to the

ground, and got on top of her.

        When others separated the two, Firestone and Volker went to Volker’s car and left the party.

However, Vicol got into his car and followed them, ramming his car into theirs repeatedly until they

pulled over. He then approached the vehicle carrying a pair of shears, and when they would not open

it, he broke the driver’s window. Vicol ordered Volker (who was driving) into the backseat, and he

slashed her face with the shears, leaving a cut that required several stitches and left a permanent scar.

Vicol got into the driver’s seat. He smashed Firestone’s head into the dashboard several times and

punched her, breaking one of her teeth. (R.E. 107, Tr. Vol. 1 at 32-34, 55, 111.) He also stabbed

her in the leg with the shears, and cut off her hair. (Id. at 55.) He told both women that he was

going to kill them. (Id. at 105.) Vicol then took the women to a hotel. He let Volker go after a few

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United States v. Vicol

hours, but refused to release Firestone for several days. Finally, his family convinced him to

surrender to authorities.

        The district court originally had jurisdiction in this matter pursuant to 18 U.S.C. § 3231 in

2003, when the defendant was indicted on a one-count indictment for kidnapping in violation of 18

U.S.C. § 1201(a)(1). Defendant admitted to using drugs and alcohol during the incident, and told

various individuals that he had taken Vicodin and methamphetamine. He pled not guilty by reason

of insanity.

        Upon a jury verdict of guilty, the district court held a sentencing hearing. The Presentence

Investigation Report stated that the Sentencing Guidelines called for a base offense level of 32,

which combined with his Criminal History level of V resulted in a range of 360 months to life in

prison. The defendant objected, stating that the previous Guidelines Manual assessed a base level

for this offense of only 24. The district court (erroneously) understood Vicol to be saying that the

Guideline increase came after the crime occurred, and so felt compelled to impose a base offense

level of 24.1 He did, however, comment on the severity of the offense: “In this case, both the facts

of the offense and the defendant’s criminal history not only indicate but scream out that this is a

defendant against whom the public must be protected.” He imposed a sentence of 188 months, the

maximum sentence provided by the Guidelines, on July 6, 2005.2


        1
         The 2002 Guidelines Manual was amended effective May 30, 2003, increasing the base level
from 24 to 32. The confusion occurred because the amendment was not incorporated into the text
of the section at that time, and therefore, a reader had to consult Appendix C to learn of the higher
base level. However, the increased level was in place at the time of Vicol’s offense.
        2
            Judgment was never actually entered on this original sentence until after the first appeal.

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United States v. Vicol

       The next day, the government moved to “correct” this sentence under Federal Rule of

Criminal Procedure 35, noting that the Guidelines in place at the time of the offense did not, in fact,

call for a base level of 24. The court scheduled a hearing on this motion, and after hearing the

parties’ arguments, attempted to correct its error. Again focusing on the nature of the kidnapping

and Vicol’s criminal history, the court sentenced the defendant to 360 months and entered that

judgment on July 18, 2005.

       However, on appeal this Court determined that the district court lost jurisdiction to take that

action under Rule 35 because it failed to act within seven days of sentencing. United States v. Vicol,

460 F.3d 693, 696-97 (6th Cir. 2006). It then remanded the case for the original 188-month sentence

to be entered, making it clear that both parties could appeal that judgment. Id. at 697. The

government timely appealed the 188-month sentence, and this Court once again heard the appeal.

It determined that the 188-month sentence was in error, as it was based on an erroneous application

of the Guidelines, and remanded once again for a sentence to be entered that was calculated on the

proper Guideline range. United States v. Vicol, 514 F.3d 559 (6th Cir. 2008).

       On remand, the case was reassigned to a new district judge by administrative order. It is this

remand that is now on appeal. At re-sentencing, Vicol presented information about his activities after

the initial sentencing. He provided evidence of participation in the Bureau of Prisons Restorative

Justice program, letters from one of the victims and her parents, and evidence that he had since been

behaving in prison, as well as sending some of his prison earnings to support his child. The

defendant argued that this information should be considered and warranted a downward departure

from the Sentencing Guidelines range.

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United States v. Vicol

        In pronouncing sentence, the district judge discussed several aspects of his decision. He

acknowledged that it was his duty to impose a sentence sufficient but not greater than necessary to

comply with the purposes of sentencing set forth in 18 U.S.C. 3553, and that the Guidelines were

advisory to the Court. The judge stated that he took the Guidelines into account as an initial

benchmark, but was ultimately making an individualized assessment based on an array of factors,

only one of which was the guidelines range. After describing the § 3553 factors, the district judge

addressed the post-sentencing rehabilitation evidence.

        Addressing the legal issue of whether this Court can consider post-sentence
        rehabilitation conduct by the defendant. The Court has found two cases; first, the
        Worley case . . . . The Court has also found the case of United States vs. Keller. . .
        . My reading of the Keller case really forecloses, in the Court’s judgment,
        consideration of post-sentencing rehabilitation conduct and answers the question that
        perhaps was left open by the dicta . . . in the Worley case. So I also recognize that
        both the Worley and Keller cases are post-Booker remand cases, but in the Court’s
        judgment, the holdings of those cases applied equally to a situation as we have here
        in which there is a remand from the Sixth Circuit because of a misapplication of the
        sentencing guidelines. The holdings of the Keller and Worley cases, in the Court’s
        judgment, preclude the consideration by this Court of post-rehabilitation conduct by
        the defendant.

        The court stated that it was “satisfied that the applicable guideline range that the Court is

dealing with now, that being 360 months to life, is the appropriate guideline range, and that the

guidelines are appropriately scored at Offense Level 38, Criminal History Category V.” It concluded

that “in light of the fact that it’s my duty here to impose a sentence which would have been imposed

at the time of original sentencing, in the Court’s judgment, the rehabilitation efforts by the defendant

. . . are not relevant to this determination today.”




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No. 08-2547
United States v. Vicol

       Government counsel asked the court to state on the record whether its sentence would be

different if it could consider the post-sentencing information. The court first addressed the severity

of the offense and Vicol’s criminal history:

       This is a particularly vicious crime that the defendant committed back in July of 2003
       with the attendant injuries to the victims, the physical injuries which were evident
       during the course of the trial . . . . So this case is a particular heinous case, in the
       Court’s judgment, and the sentence must reflect the very very serious nature of the
       offense. In addition to that, the sentence must also provide just punishment for the
       offense and promote respect for law, and in my judgment, a sentence within the
       guideline range is the appropriate sentence in this case. The Court must also
       consider deterrence of criminal conduct . . . and send a clear signal to those who may
       contemplate similar conduct, that if you do commit an offense of this seriousness,
       that you can expect a severe sentence . . . . I think that one is particularly important
       here. I don’t give it undue weight simply because I think all of the factors that the
       Court must consider, taking a snapshot in 2005, reflect the need for a severe sanction
       in this case. . . . [I]t’s been noted that the defendant had, at the time of the instant
       offense, 17 prior convictions . . . that in the Court’s judgment balances off
       significantly any mitigating factors that might be attendant to this particular case. So
       for all those reasons, the Court believes that a sentence within the guideline range as
       calculated is the appropriate sentence.

       Then, addressing Vicol directly, the court concluded that even if it could consider the post-

sentencing rehabilitation evidence, it would not change its sentence:

       Sir, I don’t want you to pretend at all that the accomplishments that you have made
       while you’ve been incarcerated are somehow minimized. . . .
       ...
       But as a sentencing judge, I expect [defendants] to be about the business of
       rehabilitating themselves. And clearly Mr. Vicol has done that, but it is not
       something that in the Court’s judgment takes this out of the mind run of cases that
       I would expect defendants to rehabilitate themselves while they are in the institution.
       So if I am wrong on my analysis of the Worley and Keller cases, given the gravity of
       all the other factors that are attendant to this case . . . should I be wrong on the
       holding of the Worley and Keller cases, I don’t think I am, I’ve looked at the law very
       closely . . . even if I am wrong . . . that would not make a difference in my sentence
       here today.


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United States v. Vicol

       The district court entered judgment on a sentence of 360 months; it is this judgment that the

defendant now appeals.

                                       II. JURISDICTION

       Though the procedural posture of this case is complex, the current appeal is from a final

judgment issued by the district court on November 20, 2008. The district court had subject matter

jurisdiction pursuant to 18 U.S.C. § 3231 in the original trial, and pursuant to 18 U.S.C. § 3582 and

§ 3742 on the last remand. The defendant timely appealed, and this Court has jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                         III. ANALYSIS

A. The District Court’s Refusal to Consider Post-Sentencing Rehabilitation Evidence

       First, defendant argues that the district judge erred in failing to consider his post-sentencing

rehabilitative conduct and grant a downward departure based on this information. The standard of

review for a district court’s sentencing decision is reasonableness. Gall v. United States, 552 U.S.

38, 51 (2007). A district court’s sentence must be upheld unless it is found to be either procedurally

or substantively unreasonable. United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006).

       However, we need not decide this issue. Even if the district court’s determination that it

could not consider the evidence was wrong, the error was harmless and remand is unnecessary. “A

remand will not be required, and an error deemed harmless . . . when ‘we are certain that . . . any

such error did not affect the district court’s selection of the sentence imposed.’” United States v.

Abboud, 308 F. App’x 977, 983 (6th Cir. 2009) (quoting United States v. Hazelwood, 398 F.3d 792,

801 (6th Cir. 2005). Here, the district judge explicitly stated that “[i]f I am wrong on my analysis

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No. 08-2547
United States v. Vicol

of the Worley and Keller cases . . . that would not make a difference in my sentence.” The judge

could not have been more clear. Considering the severity of the offense and Vicol’s criminal history,

the judge did not believe that a departure below the guideline range was warranted. Therefore, any

error on this issue was harmless.

B. The Double Jeopardy Claim

       Vicol argues that the Double Jeopardy Clause of the Fifth Amendment and the government’s

failure to take a cross-appeal should bar the imposition of a sentence greater than 188 months.

However, he did not raise this argument before the district court, and therefore it is subject to only

plain error review. United States v. Vonner, 516 F. 3d 382, 385-86 (6th Cir. 2008) (en banc). To

establish plain error, he must demonstrate, 1) an error, 2) that was clear or obvious, 3) which affected

his substantial rights, and 4) so affected the fairness, integrity, or reputation of the judicial

proceeding that this Court should use its discretion to correct it. Puckett v. United States, 120 S.

Ct. 1423, 1429 (2009). “Meeting all four prongs is difficult, as it should be.” Id. (internal

quotation omitted).

       Vicol’s argument is essentially this: the government was required to appeal the sentence of

188 months when it was first pronounced by the district court in 2005. Because it failed to do this,

that sentence became final. Because it became final, an increase of that sentence was prohibited by

the Double Jeopardy Clause. This argument is without merit.

       First, the government did not fail to appeal the 188-month sentence. Rule 4(b) of the Federal

Rules of Appellate Procedure governs the time for appeal in criminal cases. It provides that a

defendant has 10 days in which to file an appeal, and the government has 30 days. In both cases, the

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No. 08-2547
United States v. Vicol

time period runs from the entry of the judgment. FED . R. APP . P. 4(b)(1). The rule also states that

“[a] notice of appeal filed after the court announces a decision, sentence, or order—but before the

entry of the judgment or order—is treated as filed on the date of and after the entry.” Id. at 4(b)(2).

Case law is clear that the time limit to file an appeal does not begin until the judgment itself is

entered.3 See Ladder Man, Inc. v. Mfr.’s Distribution Serv., Inc., 234 F.3d 1268, 2000 WL 1679439,

at *3 n.3 (6th Cir. 2000) (unpublished) (“[T]wo procedural requirements exist for entry of judgment,

which triggers the running of the time for appeal: first, a statement of the judgment on a separate

document, and second, the entry of judgment by the clerk . . .”(internal quotations omitted)); Shalala

v. Schaefer, 509 U.S. 292, 302-03 (1993) (“Absent a formal judgment, the District Court’s April 4

order remained ‘appealable’ at the time that Schaefer filed his application [in July] and thus the

application was timely.”).

       Here, the district court pronounced its original sentence on July 6, 2005, but never entered

that judgment at that time. The first judgment the court entered (though beyond its jurisdiction) was

for 360 months, from which defendant appealed. The judgment on the sentence of 188 months was

not entered until after the first appeal and remand, on November 3, 2006. It was this judgment that

triggered the government’s duty to appeal within 30 days. The government promptly appealed well

within that time-frame.




       3
         In a civil proceeding, a judgment is entered for purposes of appeal if the court formally
enters judgment in a separate document or 150 days have run. FED . R. APP . P. 4(a)(7)(A). There is
no correlative default time period in criminal cases; instead, the time to appeal runs from the entry
of judgment on the criminal docket. Id. at 4(b)(1).

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United States v. Vicol

        Therefore, the government did not fail to appeal the 188-month sentence, and in fact, timely

appealed that sentence when judgment was actually entered after the first remand from this Court.

“A case is not yet final when it is pending on appeal. The initial sentence has not been finally

‘imposed’ . . . because it is the function of the appellate court to make it final after review or see that

the sentence is changed if in error.” United States v. Clark, 110 F.3d 15, 17 (6th Cir. 1997). The

Supreme Court has stated:

        The Constitution does not require that sentencing should be a game in which a wrong
        move by the judge means immunity for the prisoner. In this case the court only set
        aside what it had no authority to do, and substituted directions required by the law
        to be done upon the conviction of the offender. It did not twice put petitioner in
        jeopardy for the same offense. That sentence as corrected, imposes a valid
        punishment for an offense instead of an invalid punishment for that offense.

Bozza v. United States, 330 U.S. 160, 166-67 (1947) (internal citations omitted). Because the

sentence in this case did not become final, the increase in the sentence upon remand did not

implicate the Double Jeopardy Clause of the Fifth Amendment.

                                          V. CONCLUSION

        For the foregoing reasons, we AFFIRM the decision of the district court.




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