                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 08a0024p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 05-6101
           v.
                                                      ,
                                                       >
 FREDDIE L. PETERS,                                   -
                             Defendant-Appellant. -
                                                     N
                       Appeal from the United States District Court
                    for the Western District of Tennessee at Memphis.
                     No. 02-20027—J. Daniel Breen, District Judge.
                                       Submitted: October 23, 2007
                                  Decided and Filed: January 14, 2008
                Before: MERRITT and CLAY, Circuit Judges; COX, District Judge.*
                                            _________________
                                                 COUNSEL
ON BRIEF: Kemper B. Durand, THOMASON, HENDRIX, HARVEY, JOHNSON &
MITCHELL, Memphis, Tennessee, for Appellant. Linda Nettles Harris, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                                            _________________
                                                OPINION
                                            _________________
        MERRITT, Circuit Judge. On January 31, 2002, a Federal Grand Jury in the Western
District of Tennessee returned a 22-count indictment against Freddie Peters. The indictment charged
Peters with making, and causing to be made and presented, false claims to the Internal Revenue
Service in violation of 18 U.S.C. § 287, and unlawfully disclosing, using, and compelling the
disclosure of Social Security account numbers of other persons in violation of 18 U.S.C. § 2 and 42
U.S.C. § 408(a)(8). His trial began on August 12, 2002, before Judge Julia Gibbons in the Western
District of Tennessee.
       At trial, the government produced evidence that Peters had executed a tax fraud scheme
wherein he recruited African immigrants to file false income returns listing foster children as
dependents. In fact, the taxpayers had no relationship with the children; rather, Peters had acquired

        *
          The Honorable Sean F. Cox, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                        1
No. 05-6101                  United States v. Peters                                         Page 2


Social Security numbers and other information for the children by paying the children’s mothers
$100 per child. Peters then provided this information to the immigrants filing the fraudulent tax
returns for a fee of $200.
        The jury found Peters guilty on all 22 counts of the indictment and Judge Gibbons sentenced
him to 71 months (60 months for the false claims counts and 11 months for the fraudulent use of
Social Security numbers) in prison followed by three years of supervised release. The sentence
reflected four enhancements found by Judge Gibbons.
         Peters appealed his conviction, challenging both the calculation of the sentence and the
sufficiency of the evidence. The Sixth Circuit affirmed the conviction and sentence. United States
v. Peters, 98 Fed. Appx. 449 (6th Cir. 2004). The Supreme Court granted the writ, vacated the
judgment of the Sixth Circuit, and remanded the case for further consideration in light of United
States v. Booker, 543 U.S. 220 (2005). The Sixth Circuit, in turn, remanded to the District Court
for re-sentencing, where Peters received a new sentence of 57 months. The new 57-month sentence
included three enhancements based on facts found by the judge: (1) a four-point enhancement for
Peters’ organizational role, (2) a two-point enhancement for obstruction of justice, and (3) a six-
point enhancement because the losses exceeded $30,000. Peters again appeals his case, arguing both
that his new sentence continues to violate the Sixth Amendment’s prohibition of judicial fact-finding
and that the sentence fails reasonableness review under 18 U.S.C. § 3553(a).
       Peters requested that the sentencing judge impose a “time-served” sentence by presenting
a document called “Statement of Reasons” that set out a number of mitigating factors, including the
abandonment and many other adversities he suffered as a child, his new family ties and
responsibilities as a result of his engagement to be married and other mitigating factors.
        Besides a cursory statement acknowledging Peters’ arguments, the District Court did not
address the defendant’s “time-served” argument or the mitigating factors indicating that a “time-
served” sentence would satisfy the so-called “parsimony provision” of 18 U.S.C. § 3553(a)
requiring a “sentence sufficient but not greater than necessary” to comply with the purposes of
sentencing outlined in the statute.
        The failure of the District Court to address Peters’ “time-served” argument does not satisfy
the “procedural reasonableness” requirement outlined in Section III of Justice Breyer’s majority
opinion in Rita v. United States, 127 S. Ct. 2456, 2468-69 (2007). When the defendant or prosecutor
“presents nonfrivolous reasons for imposing a different sentence,” such as the statement of reasons
submitted by Peters, a sentencing judge should address the “parties’ arguments” and “explain why
he has rejected those arguments.” Id. at 2468. That did not happen in our case. See United States
v. Thomas, 498 F.3d 336, 341 (6th Cir. 2007) (vacating and remanding the district court’s sentence
because the factors raised by the defendant “went unmentioned and unaddressed, save the general
statement by the district court that it had received, read, and understood the sentencing
memorandum”).
       Accordingly, for these reasons, the judgment of the District Court sentencing the defendant
to 57 months is reversed, and the case is remanded for re-sentencing.
