United States vs. James M. Funk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0264p.06

FOR THE SIXTH CIRCUIT _________________ X Plaintiff-Appellant, No. 05-3708 > , Defendant-Appellee. N On Remand from the United States Supreme Court. No. 02-00708—James G. Carr, Chief District Judge. Argued: June 23, 2006 Decided and Filed: July 22, 2008 Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; BELL, Chief District Judge.* _________________ COUNSEL ARGUED: Joseph R. Wilson, ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellant. Spiros P. Cocoves, LAW OFFICE, Toledo, Ohio, for Appellee ON BRIEF: Joseph R. Wilson, ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellant. Spiros P. Cocoves, LAW OFFICE, Toledo, Ohio, for Appellee. BATCHELDER, J., delivered the opinion of the court, in which BELL, D. J., joined. BOGGS, C. J. (p. 9), delivered a separate dissenting opinion. _________________ OPINION _________________ ALICE M. BATCHELDER, Circuit Judge. On remand from the Supreme Court, we are charged with deciding whether a district court’s below-Guidelines sentence was reasonable. Because we conclude that it was not, we VACATE and REMAND for resentencing. I. From 1998 to 2001, James Funk was part of a conspiracy to bring drugs from Florida and Texas to Marion, Ohio. In 2002, the federal government indicted Funk and seven of his cohorts for *



The Honorable Robert Holmes Bell, Chief United States District Judge for the Western District of Michigan, sitting by designation.


No. 05-3708

United States v. Funk

Page 2

conspiring to possess cocaine and marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment specified that beginning in 1998 the defendants conspired to obtain over 15 kilograms of cocaine and over 2,000 pounds of marijuana and to distribute it in the Marion area. The case went to trial and while most of the trial testimony focused on marijuana trafficking, one witness testified to purchasing cocaine from Funk; specifically, eleven ounces on one occasion, and one ounce on each of three other occasions, all during 1998. The jury convicted Funk as charged and the court sentenced him to 262 months in prison, which was the low end of the then-mandatory sentencing range, calculated at 262 to 327 months, pursuant to the United States Sentencing Guidelines. On direct appeal, we affirmed Funk’s conviction, but vacated his sentence and remanded the case for re-sentencing in light of United States v. Booker, 543 U.S. 220 (2005). See United States v. Funk, 124 F. App’x. 987, 991 (6th Cir. 2005). On remand, Funk argued to the district court that the career offender enhancement, U.S.S.G. § 4B1.1 — which had previously been included without protest — made the sentence unreasonably high, and Funk urged the court to calculate the advisory Guidelines range without the career offender enhancement. At the sentencing hearing, the court indicated some agreement with this proposition, expressing a disregard for the Guidelines formulation on this issue and announcing that it was “inclined to apply the [G]uideline range as if the career offender enhancement was not there.” In its written judgment entry, however, the court included the career offender enhancement in calculating the advisory Guideline range, which it properly recognized as 262 to 327 months. But the court did not sentence Funk within the calculated range. Instead, the court granted Funk a downward variance, sentencing him to only 150 months and stating its reasons as follows: The Court, pursuant to 18 U.S.C. § 3553(a), did not sentence the defendant under the advisory [G]uideline range. The Court found that the career enhancement was excessive and unreasonable. In making that determination, the Court found: 1. that even though the underlying charge was marijuana, which is an extremely serious offense, the defendant...
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