                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0757n.06
                           Filed: October 12, 2006

                                           No. 05-1827

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES,                                   )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
MICHAEL NICKSON,                                 )    EASTERN DISTRICT OF MICHIGAN
                                                 )
       Defendant-Appellant.                      )



       Before: GUY, SUTTON and ALARCÓN,* Circuit Judges.


       PER CURIAM. Michael Nickson challenges the procedural and substantive reasonableness

of his 57-month sentence. We affirm.


                                                 I.


       In 2001, a Michigan grand jury indicted Nickson and three others for their role in defrauding

the City of Detroit’s Public Lighting Department. Nickson pleaded guilty to 10 counts of mail fraud,

18 U.S.C. § 1341; 1 count of conspiracy to commit mail fraud, 18 U.S.C. §§ 371, 1341; 67 counts

of structuring financial transactions, 31 U.S.C. § 5324; and 4 counts of fraud and false statements,




       *
       The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
No. 05-1827
United States v. Nickson

26 U.S.C. § 7206(1). He proceeded to trial on a single count of money laundering, 18 U.S.C.

§ 1956(a)(1)(B)(i), and the jury found him guilty.


       In calculating Nickson’s sentencing range under the then-applicable 1995 version of the

guidelines, the district court grouped together the mail-fraud, conspiracy, structuring-financial-

transactions and money-laundering counts. See U.S.S.G. § 3D1.2 (providing that counts “involving

substantially the same harm” should be grouped together). Because money laundering yielded the

highest offense level of the group—level 20—the court used it as the basis for calculating the overall

offense level and corresponding sentencing range. See U.S.S.G. § 3D1.3 (“In the case of counts

grouped together . . . the offense level applicable [is] the highest offense level of the counts in the

[g]roup.”).


       Although the presentence investigation report concluded that Nickson had laundered more

than $2 million, an amount that would result in a 6-level enhancement, see U.S.S.G.

§ 2S1.1(b)(2)(G), the court determined that the crime involved losses totaling $1,266,313 and

applied a 5-level enhancement, see U.S.S.G. § 2S1.1(b)(2)(F). Over protests by the government, the

court also granted Nickson a 2-level reduction for acceptance of responsibility, see U.S.S.G.

§ 3E1.1(a), resulting in an overall offense level of 23 with a sentencing range of 46 to 57 months.

The judge sentenced Nickson to 57 months and ordered him to pay $2,223,697 in restitution.


       Nickson appealed his money-laundering conviction and sentence. A panel of this court

affirmed the conviction but remanded the case for resentencing in the aftermath of United States v.


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United States v. Nickson

Booker, 543 U.S. 220 (2005). See United States v. Nickson, 127 F. App’x 770, 777 (6th Cir. Apr. 1,

2005).


         At resentencing, Nickson’s attorney urged the district court to abandon its original approach

to calculating Nickson’s guidelines range. Instead of grouping the money-laundering and mail-fraud

counts together (as the court had done the first time), Nickson’s attorney asked the court to separate

the money-laundering count from the mail-fraud offenses and calculate distinct sentencing ranges

for each.


         Persuaded by the attorney’s recommendation, the court started at a base level of 20 for the

money-laundering count, then increased the offense level to 21 based on the amount of money

attributable to the money-laundering offense, which he determined to be $106,000. See U.S.S.G.

§ 2S1.1(b)(2)(B). The court refused to grant a 2-level reduction for acceptance of responsibility

because Nickson never pleaded guilty to money laundering and instead was found guilty of it at trial.


         The court then determined the applicable guidelines range for the mail-fraud counts:

Beginning with a base level of 6 for mail fraud, the court applied an 11-level enhancement for loss

exceeding $800,000, U.S.S.G. § 2F1.1(a)(1)(L), added 2 levels for more-than-minimal planning,

U.S.S.G. § 2F1.1(a)(2), subtracted 2 levels for acceptance of responsibility and arrived at an offense

level of 17.


         Because the resulting offense levels for the money-laundering count and for the mail-fraud

group were within 4 levels of each other, the district court applied a 2-level enhancement to the

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United States v. Nickson

money-laundering count (the crime with the highest offense level), see U.S.S.G. § 3D1.4,

arriving—as it had the first time it sentenced Nickson––at an offense level of 23 and a sentencing

range of 46 to 57 months. The court again sentenced Nickson to 57 months.


                                                   II.


        Nickson attacks the procedural reasonableness of his sentence on two grounds. He argues

that the district court should have grouped together the fraud, conspiracy, structuring-financial-

transactions and money-laundering counts in calculating the applicable guidelines range. And he

argues that the court improperly applied the 2-level reduction for acceptance of responsibility on an

offense-by-offense basis rather than a combined-offense-level basis.


        Because he did not raise these procedural arguments during resentencing—indeed, his

counsel argued that the district court should not group the counts together as the court had done the

first time—Nickson must satisfy the requirements of plain-error review to obtain relief. See United

States v. Olano, 507 U.S. 725, 731–32 (1993); see also Fed. R. Crim. P. 52(b). Under this test, we

initially must find “(1) [an] error, (2) that is plain, and (3) that affects substantial rights.” Johnson

v. United States, 520 U.S. 461, 467 (1997) (internal quotations omitted). Then, if the defendant

satisfies all three conditions, we may exercise our discretion to correct the error “only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

quotation marks omitted).




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No. 05-1827
United States v. Nickson

       As the government concedes, the district court erred by failing to group Nickson’s offenses

together, see U.S.S.G. § 3D1.2, and erred by applying the reduction for acceptance of responsibility

to each offense individually rather than to the overall offense level, see U.S.S.G. §§ 1B1.1(d) & (e).

And as the government also concedes, each of these errors was plain.


       In neither instance, however, can Nickson show that these errors affected his substantial

rights. To “affect[]” a defendant’s “substantial rights,” we have held, the “error must have been

prejudicial: It must have affected the outcome of the District Court proceedings.” United States v.

Thomas, 11 F.3d 620, 630 (6th Cir. 1993). There are at least three reasons why these errors did not

affect the outcome of the district court proceedings.        First, even though the district court

misconstrued the guidelines in two respects, it still reached the correct offense level and

corresponding sentencing range—precisely the same offense level (23) and guidelines range (46 to

57 months) that it had reached the first time it sentenced Nickson. Second, even though Booker gave

the district court authority to vary the sentence below or above the advisory guidelines range, the

court imposed the same sentence on Nickson that it had imposed the first time—57 months. Third,

out of an abundance of caution, the court indicated that even if it had an opportunity to sentence

Nickson a third time, it still would impose a 57-month sentence under the § 3553(a) factors. See,

e.g., JA 327 (“[E]ven if we had been at the 37 to 46 month guideline range in the money

laundering . . . I would have enhanced the sentence to the 57 months that I gave Mr. Nickson when

we were first together for sentencing for all of the reasons that I’ve already indicated.”); JA 326

(“[I]f, indeed, the guidelines would have been different, I probably would have increased the


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United States v. Nickson

sentence beyond the guideline somewhat to get back to the 57 month[s], because of the factors that

I’ve discussed.”). Under these circumstances, Nickson cannot show that his substantial rights have

been affected. See United States v. Matheny, 450 F.3d 633, 642 (6th Cir. 2006) (“Because [the

defendant] cannot demonstrate prejudice . . . his substantial rights have not been affected.”).


                                                  III.


        Nickson also challenges the substantive reasonableness of his sentence. In reviewing such

a challenge, the “question at hand is whether the sentence is reasonable in light of the § 3553(a)

factors.” United States v. Davis, 458 F.3d 491, 496 (6th Cir. 2006). Nickson has failed to supply

a persuasive reason why the district court lacked discretion to issue this within-guidelines sentence.


        The district court judge as an initial matter thoroughly considered the § 3553(a) factors. He

contemplated “the nature and circumstances of the offense and the history and characteristics of the

defendant.” 18 U.S.C. § 3553(a)(1); see JA 315 (“[H]e’s a first time offender and this seems to have

been his first exposure to the criminal justice system. On the other hand, the nature of the

circumstances of the offense are very serious. . . . This was not an opportunistic sort of one-shot

crime. . . . [T]his occurred over an extended period of time with extended transactions.”). He

explained “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A); see

JA 316 (stating that these three considerations “all counsel[ ] sentences at the higher end of the

guideline range, because in my view, public corruption and the assistance in public corruption [are]


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United States v. Nickson

among the highest and most serious crimes”). He explained that the sentence was sufficiently high

to promote general deterrence, 18 U.S.C. § 3553(a)(2)(B); see JA 316 (“To afford adequate

deterrence for criminal conduct, I believe that this sentence is appropriate.”), and to protect the

public, 18 U.S.C. § 3553(a)(2)(C); see JA 317 (“The need to apprise the public of the importance

of punishing this kind of conduct is essential to protect the public from further crimes of the

defendant.”). And he examined the sentencing options available to him. 18 U.S.C. § 3553(a)(3);

see JA 317–18.


       While the court ultimately sentenced Nickson at the high end of the guidelines range, it gave

ample reasons for doing so. The court in the end did not exceed its considerable sentencing

discretion in applying the advisory guidelines to this criminal and these crimes. See United States

v. Barnett, 398 F.3d 516, 528 (6th Cir. 2005) (“Under the new post-Booker framework, the district

court is empowered with greater discretion to consider the [§ 3553(a)] factors . . . in determining a

proper sentence.”).


       Nor, contrary to Nickson’s contention, did the sentence lead to unfair sentencing disparities

among the defendants. In rejecting this argument below, the district court legitimately noted that 57

months was an appropriate sentence given that it had sentenced Alberta Butler, a co-conspirator who

played a “far, far smaller” role in the fraud, JA 322, to a 24-month sentence. See id. (“I think that

a sentence two and-a-half times as much as Ms. Butler is an appropriate sentence for Mr. Nickson.”).

The district judge also sought to square Nickson’s sentence with those of prior defendants convicted

of similar crimes. JA 322 (“I have to look at other types of conduct of a similar nature that I have

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United States v. Nickson

seen over my 15 years that have resulted in penalties.”). Because the district court did not abuse its

considerable sentencing discretion in imposing this 57-month sentence, we need not consider

Nickson’s final argument—that we should remand the case to the district court with specific

instructions to impose a 30 to 37 month sentence.


                                                 IV.


       For these reasons, we affirm.




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