                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0751n.06

                                           No. 08-5797
                                                                                        FILED
                              UNITED STATES COURT OF APPEALS                        Dec 09, 2010
                                   FOR THE SIXTH CIRCUIT                      LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                )
                                                         )       ON APPEAL FROM THE
        Plaintiff-Appellee,                              )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
        v.                                               )       DISTRICT OF TENNESSEE
                                                         )
JASPER TEMPLE,                                           )                 OPINION
                                                         )
        Defendant-Appellant.                             )


BEFORE: GILMAN and COOK, Circuit Judges; and OLIVER, District Judge.*

        SOLOMON OLIVER, JR., Chief District Judge. Defendant-Appellant, Jasper Temple

(“Temple”), appeals from his 327-month sentence imposed in the Western District of Tennessee for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). For the following

reasons, we VACATE Temple’s sentence and REMAND the case for resentencing consistent with

this opinion.

                        I. FACTUAL AND PROCEDURAL HISTORY

        On January 19, 2006, a federal grand jury returned an indictment charging Temple with being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Trial commenced on August

13, 2007. During the course of the trial, on August 14, 2007, Temple decided to, and did, enter a

plea of guilty.


        *
          The Honorable Solomon Oliver, Jr., United States Chief District Judge for the Northern
District of Ohio, sitting by designation.
        On June 19, 2008, the district court held a sentencing hearing. Since Temple had not

submitted to an interview by the Probation Office prior to the issuance of the report, his counsel

requested that he be able to supplement the record during the sentencing hearing. As a consequence,

Temple testified at sentencing. At that hearing, Temple’s counsel made two mitigation arguments.

First, Temple’s counsel requested the court to consider his difficult upbringing. Second, Temple’s

counsel asked the court to consider his decision to plead guilty as evidence that he had accepted

responsibility. (Id.) The government, in its written submission regarding Temple’s sentence,

recommended a sentence at the high end of the applicable advisory guideline range. During the

sentencing hearing, the government attorney stated “that Guideline Range punishment is appropriate

in this case.”

        The district court determined that Temple was subject to an enhanced penalty as an Armed

Career Criminal because his record revealed at least three qualifying felony convictions. As a result,

his base offense level was 34, which combined with a Criminal History Category of VI, resulted in

a Sentencing Guidelines range of 262 months to 327 months. The district court found that Temple

was not entitled to a reduction of his offense level for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1. The court stated that Temple showed no remorse for his actions. Specifically,

the district court referenced a letter received from Temple after he pled guilty, in which he

“continue[d] to advocate and argue his innocence.” Thereafter, the district court sentenced Temple

to 327 months’ incarceration, the high end of the Guideline Range, followed by 3 years of supervised

release.
       Temple appealed, alleging that the district court abused its discretion when it imposed the

maximum sentence available under the Sentencing Guidelines, and that as a result, his sentence was

procedurally and substantively unreasonable.

                                 II. STANDARD OF REVIEW

       The issue of whether a sentence is reasonable is determined using an abuse-of-discretion

standard of review. United States v. Sexton, 512 F.3d 326, 331 (6th Cir. 2008) (citing Gall v. United

States, 552 U.S. 38, 46 (2007)). Review for reasonableness has both procedural and substantive

components. Id. (citing Gall, 552 U.S. at 49-50 (2007); and United States v. Borho, 485 F.3d 904,

908 (6th Cir. 2007)). Because Temple's sentence is within the properly calculated Sentencing

Guidelines range, it is entitled to a presumption of reasonableness on review. Rita v. United States,

551 U.S. 338, 351 (2007); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). This

presumption “applies to the Guidelines range calculated by taking into account enhancements based

on judge-determined facts.” Sexton, 512 F.3d at 332.

       Examples of procedural errors are “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” Gall, 552 U.S. at 51; see also United States v. Collington, 461 F.3d 805, 808 (6th Cir.

2006) (“A sentence may be procedurally unreasonable if the district judge fails to consider the

applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a),

and instead simply selects what the judge deems an appropriate sentence without such required

consideration.”) When the defendant “‘presents nonfrivolous reasons for imposing a different

sentence,’ a sentencing judge should address the ‘parties’ arguments’ and ‘explain why he has
rejected those arguments’ in order for the sentence to be procedurally reasonable.” United States v.

Peters, 512 F.3d 787, 789 (6th Cir. 2008) (quoting Rita, 551 U.S. at 358).

       A sentence is substantively unreasonable “when the district court selects the sentence

arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors

or gives an unreasonable amount of weight to any pertinent factor.” Borho, 485 F.3d at 908 (quoting

Collington, 461 F.3d at 808; Sexton, 512 F.3d at 332.

                                   III. LAW AND ANALYSIS

       Temple argues that the district court’s sentence was both procedurally and substantively

unreasonable because the district court did not consider his mitigating circumstances.

       Section 3553(a) provides, in relevant part:

       The court shall impose a sentence sufficient, but not greater than necessary, to comply with
       the purposes set forth in paragraph (2) . . .

       [And] shall consider-
       (1) the nature and circumstances of the offense and the history and characteristics of the
       defendant;
       (2) the need for the sentence imposed –
                (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;
       (3) the kinds of sentences available;
       (4) the kinds of sentence and the sentencing range established for -
                (A) the applicable category of offense committed by the applicable category of
                defendant as set forth in the guidelines;
                ...
       (6) the need to avoid unwarranted sentence disparities among defendants with similar records
       who have been found guilty of similar conduct. . . .
                        A. Mitigating Circumstance: Difficult Childhood

         At the Sentencing Hearing, the district court heard testimony from Temple about his difficult

childhood. Temple stated that when he was 12 years old, his father “had already been submitted to

like an old folks home, or where ever they sent people where they could take care of them. So, he

wasn’t really -- he didn't have any memory. He couldn't even remember who I was. He totally lost

his memory.” Temple further testified that his mother passed away when he was 12 years old, and

his father died when he was 14 years old. He lived with his grandfather from age 12 to age 16, and

during this time he worked in cotton fields. At age 16, Temple moved to Memphis to live with his

brother.

         The initial Presentence Report states that “defendant reportedly first used heroin at a ‘young’

age and used daily until age 21. The defendant completed drug treatment while incarcerated.” The

Report further stated that “[t]he probation officer has not identified any factors under 18 U.S.C.

3553(a) that may warrant a variance and imposition of a non-guideline sentence.”

         The Revised Presentence Report included the information about the deaths of Temple’s

parents. It also indicated that “defendant stated that he witnessed the murders of relatives and close

friends, some of which severely affected him.” Temple reported first using marijuana at age 13 or

14 but denied use of other illicit controlled substances, in contradiction to what he said in his pretrial

services interview. Temple completed the 10th grade but was expelled in the 11th grade due to an

altercation with another student. He reportedly entered the Batesville Job Corps Center in

Mississippi and at some point earned his GED and certifications in welding, culinary arts, and retail

sales.
       The Initial Presentence Report and the Revised Presentence Report also set forth Temple’s

past crimes. On June 29, 1996, Temple was convicted of attempted aggravated robbery. On

November 18, 1997, Temple was convicted of criminal trespass. On December 18, 1997, Temple

was convicted of aggravated robbery. On January 15, 1998, Temple was convicted of burglary of

a motor vehicle. On April 13, 1999, Temple was convicted of criminal attempt: “Especially

Aggravated Robbery.” On March 22, 2003, Temple was convicted of possession of a controlled

substance. Finally, on March 23, 2004, Temple was convicted of unlawful possession of a controlled

substance with intent to distribute, and resisting official detention.

       Temple argues that the district court committed error because it did not address his arguments

regarding his difficult childhood when it articulated its reasons for the sentence imposed. He

maintains that his case is similar to the circumstances in United States v. Buffington, 310 F. App’x

757, 763 (6th Cir. 2009), in which the Sixth Circuit found that Mr. Buffington’s sentence was

unreasonable because the judge in that case did not “specifically address[] three of Buffington’s four

arguments in favor of” a shorter sentence.

       The district court’s reasoning for its sentence is not expansive. The district court did not

discuss in detail most of Temple’s past crimes, mention his difficult childhood, or formally adopt

the Presentence Report. On the other hand, the district court did reference Temple’s criminal past

by stating that “Mr. Temple has an extensive violent history going back to 1996, which was

demonstrated by the fact that []he fought with the [police] and when they apprehended him, he

attempted to flee. I would say that is very similar to behavior of Mr. Temple in the past.” The

district court judge further stated that “the Court has concluded Mr. Temple has been involved in

criminal conduct throughout his adult life. Temple has shown by his prior convictions that he has
continued to be a violent criminal.” Although it is possible that the trial court concluded that

Temple’s extensive criminal history outweighed any mitigating effect a difficult childhood could

have, it is not clear from the record whether this is the case or whether the court failed to take into

consideration Temple’s difficult childhood. It was incumbent upon the court to clarify its position

in this regard. In United States v. Mitchell, 232 F. App’x 513, 520 (6th Cir. 2007) (quoting United

States v. Richardson, 437 F.3d 550, 554 (6th Cir.2006)), this court held that “[t]he district court has

an ‘obligation to explain to the parties and the reviewing court its reasons for imposing a particular

sentence.’”

       The district court’s statement that the 327-month sentence was in part based on “the

statements of counsel and the other circumstances surrounding this case” was not sufficient to

eliminate this deficiency. Although a mere reference to the rest of the record can fulfill the

requirements of procedural reasonableness, it must be clear what issue the district court is

referencing. See United States v. Greer, 359 F. App’x, 642, 645-46 (6th Cir. 2010). The reference

the district court made in this case is not as clear as the references made by the judge in Greer, where

Greer’s attorney and the judge specifically referred to arguments made by counsel on the record prior

to Greer’s family entering the courtroom. Id., at 646 (“It is clear from the sentencing transcript that

Greer's attorney did not want to specifically mention the information Greer provided about his

family’s criminal activity while his family was in the courtroom.”).

       The court in Rita, 551 U.S. at 359, explained that a district court does not have to provide

an extensive explanation “[w]here a matter is . . . conceptually simple . . . and the record makes clear

that the sentencing judge considered the evidence and arguments.” See also Sexton, 512 F.3d at 332

(quoting Rita, 551 U.S. at 359); United States v. Pettie, 242 F. App’x 313, 317 (6th Cir. 2007)
(“[R]egular, recurring circumstance[s] need not be discussed by a judge each and every time [they

are] raised by a criminal defendant, especially in the absence of some further development suggesting

an exceptional hardship.”). However, in Sexton, “it was obvious that the court had considered his

claim from the context and the court’s explicit acknowledgment of the argument.” Sexton, 512 F.3d

at 332. In this case, the district court did not explicitly acknowledge Temple’s argument that he

should receive a lower sentence based on his difficult upbringing.

       This case is also factually distinguishable from Pettie because the hardship articulated by

Temple was certainly more exceptional than the hardship Pettie put forth. Pettie’s counsel stated that

Pettie cared for his parents. In this case, Temple testified about losing both parents at a young age,

and the Presentence Report included evidence that Temple was involved with drugs as a child and

witnessed violence.

       We recognize that district judges do and should have substantial discretion in articulating

their sentencing decisions. However, by not articulating how the facts of Temple’s childhood

factored into its sentencing determination, the district court fell short of complying with controlling

precedent. Therefore, we remand this case to the district court for resentencing with instructions to

clearly articulate its reasoning pursuant to the § 3553(a) factors and to specifically articulate its

position regarding the effect of Temple’s childhood as to its sentencing decision.

                  B. Mitigating Circumstance: Acceptance of Responsibility

       The district court heard testimony regarding Temple’s guilty plea. His counsel stated:

       I’m not going to request a three level reduction, but I will ask Your Honor to consider
       . . . the fact that [Mr. Temple] ultimately plead guilty. I think that that bears some
       kind of acceptance. Whatever Your Honor wants to give him, we would very much
       appreciate.
Government counsel stated in response that the government had “put on all” of its proof at trial. It

was only after witnesses

        repeatedly identified this defendant as the man who had the gun and as the man who
        robbed them, it is then when he decided to change his plea. The defendant did not
        accept responsibility. As Your Honor knows, there was a letter sent to Your Honor’s
        court, which is actually a part of the record where it says, “I am innocent of the
        accusations against me and will not, refuse to sign any acceptance of letter to take
        responsibility for things I did not do.” . . . So I submit that he did not accept
        responsibility, although he is admitting his responsibility now, but it is too late.

Defendant changed his plea on the second day of trial.

        The district court specifically addressed the issue of whether Temple accepted responsibility.

While acknowledging that he pled guilty, the court noted that Temple had permitted a trial to

commence before pleading and had written a letter to the court after pleading guilty stating that he

was innocent. The district court stated that “the defendant didn’t show any remorse that this [c]ourt

could see.” Therefore, Temple’s argument that the district court did not consider whether he had

accepted responsibility is not well-taken.

        Temple further argued that the district court mischaracterized his decision to accept

responsibility by stating that “I went through the plea colloquy with him and he was unwilling to

accept responsibility for this charge,” because Temple pled guilty. This statement, read in the

context of the district court’s other statements about whether Temple accepted responsibility, does

not amount to procedural error. It is evident that the district court considered other factors to

determine that Temple did not accept responsibility, such as his decision to begin trial and his letter

to the court declaring his innocence. Therefore, the district court did not commit procedural error

in regard to its treatment of Temple’s argument that his sentence should be lowered based on his

guilty plea.
        Because we conclude that Temple’s sentence was procedurally unreasonable, it is not

necessary to address whether it is substantively reasonable. Gall, 552 U.S. at 51 (The appellate court

“must first ensure that the district court committed no significant procedural error. . . . Assuming that

the district court’s sentencing decision is procedurally sound, the appellate court should then

consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard.”); United States v. Garcia-Robles, 562 F.3d 763, 768 (6th Cir.2009) (“Because we

conclude that [defendant’s] sentence is procedurally unreasonable, we do not consider at this time

his arguments that his sentence is substantively unreasonable.”); United States v. Wilson, 614 F.3d

219, 226 (6th Cir. 2010) (“Having found her sentence procedurally unsound, we need not reach . .

. [the] argument” that the sentence was substantively unreasonable.).

                                        IV. CONCLUSION

        For the foregoing reasons, we VACATE Temple’s sentence and REMAND the case for

resentencing consistent with this opinion.
