RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0059p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TONY RICHARDSON,

Defendant-Appellant.

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No. 05-1260

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 04-00164—David W. McKeague, District Judge.

Argued: January 27, 2006

Decided and Filed: February 13, 2006 

Before: SILER, BATCHELDER, and MOORE, Circuit Judges.

_________________

COUNSEL

ARGUED: David L. Kaczor, FEDERAL PUBLIC DEFENDERS OFFICE, WESTERN DISTRICT

OF MICHIGAN, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, ASSISTANT

UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: David L.

Kaczor, FEDERAL PUBLIC DEFENDERS OFFICE, WESTERN DISTRICT OF MICHIGAN,

Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, ASSISTANT UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee.

_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Tony Richardson

(“Richardson”) pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a) for robbing a

Bank One branch in Grand Rapids, Michigan, in the summer of 2004. Considering the Sentencing

Guidelines as advisory, the district court classified Richardson as a career offender under U.S.S.G.

§ 4B1.1 because he had two previous state convictions for “crimes of violence,” and sentenced

Richardson to 180 months in prison. On direct appeal, Richardson argues that his sentence is

unreasonable under United States v. Booker, 125 S. Ct. 738 (2005), and furthermore, that the district

court’s enhancement of his sentence as a career offender under U.S.S.G. § 4B1.1 violates his Sixth

Amendment rights. Upon review, we conclude that Richardson’s sentence is reasonable in light of

Booker and does not offend the Sixth Amendment. We AFFIRM.

1
No. 05-1260 United States v. Richardson Page 2

I. BACKGROUND

Defendant-Appellant Richardson appeals his 180-month sentence for bank robbery in

violation of 18 U.S.C. § 2113(a). At approximately 2:00 p.m. on July 2, 2004, Richardson

approached a bank teller in a Bank One in Grand Rapids, Michigan, and passed her a note he had

written on a withdrawal slip announcing a robbery and demanding money. The teller gave

Richardson $4,084.00 in currency, some of which was wrapped in a dye pack, and Richardson fled

from the building. The teller stated that Richardson did not indicate that he had a weapon, and she

recalled that the note he passed her said, “This is a robbery, give me all your $100’s, $50’s, and

$20’s. Act like nothing is wrong or I will shoot you.” Joint Appendix (“J.A.”) at 69 (Presentence

Investigation Report (“PSR”) at ¶ 12). Richardson, who was nineteen at the time, was apprehended

without incident in a nearby apartment building a short while later after the police received a tip

about his location. When Richardson was questioned by police, he admitted that he committed the

robbery and stated that he was not assisted by anyone else. Richardson, who has abused drugs since

age seven, admitted that he used cocaine prior to committing the robbery and that he applied some

of the proceeds from the robbery to buy cocaine base, his drug of choice. Richardson stated to the

police that the note he passed to the teller stated, “Give me the money or you will die, no blow up

ink, $100’s, $20’s, $50’s, be normal.” J.A. at 69 (PSR at ¶ 14); see also J.A. at 38 (Sentencing Hr’g

Tr. at 8). When Richardson requested an attorney, the police ended the interview.

Richardson pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). At the

sentencing hearing on January 31, 2005, the district court determined that Richardson’s total offense

level was 29, which reflected an enhancement under Guideline § 4B1.1 because the court concluded

that Richardson was a career offender, as well as reductions for acceptance of responsibility and

timeliness. The court imposed the career-offender enhancement because it found that, as a matter

of law, Richardson’s prior convictions for larceny from a person and fleeing and eluding were

crimes involving actual violence or the threat of violence as defined by § 4B1.1. Because of

Richardson’s career-offender status, the district court also found that his criminal history category

was a VI.

The statutory maximum for a violation of § 2113(a) is twenty years, and the guideline range

for Richardson, given the district court’s findings, was between 151 and 188 months of

imprisonment. Acknowledging that the Guidelines range was advisory, the district court concluded

that the range was reasonable and appropriate when considered with the factors in 18 U.S.C.

§ 3553(a). The court then sentenced Richardson to 180 months of imprisonment, stating that the

basis for the sentence was “the violent nature of Mr. Richardson since he was young, and his

continuing inability to control his emotions and his impulses and his reactions, even after he’s gotten

free of drugs and has been incarcerated, where he still is a violent predator.” J.A. at 58 (Sentencing

Hr’g Tr. at 28). The court recommended that Richardson participate in the 500-hour residential drug

treatment program, and determined that at the conclusion of his sentence, Richardson would be

placed on three years of supervised release. Richardson filed a timely notice of appeal.

II. ANALYSIS

Richardson advances two claims on appeal: (1) his 180-month sentence is unreasonable

under Booker; and (2) the district court violated his Sixth Amendment rights when it determined he

was a career offender under Guideline § 4B1.1 and enhanced his sentence because of the careeroffender designation.

A. Richardson’s Reasonableness Claim

Richardson first argues that his sentence is unreasonable under Booker. Richardson claims

that his sentence is unreasonable because the district court did not analyze and apply the § 3553(a)
No. 05-1260 United States v. Richardson Page 3

1

The § 3553(a) factors that we consider in our reasonableness analysis include “the nature and circumstances

of the offense and the history and characteristics of the defendant” as well as the need for the defendant’s sentence “to

reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment,” “afford adequate

deterrence,” “protect the public from further crimes of the defendant,” and “to provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C.

§ 3553(a)(1)-(2). See also 18 U.S.C. § 3553(a)(3)-(7) (listing additional factors).

2

We have previously rejected the argument “that a sentence within a proper Guidelines range is per-se

reasonable.” Webb, 403 F.3d at 385 n.9.

factors with enough specificity when determining his sentence. Richardson also argues that his

sentence is longer than necessary to achieve the purposes of sentencing in § 3553(a)(2).

Booker transformed the Sentencing Guidelines from a mandatory scheme into an advisory

resource. “Without the ‘mandatory’ provision, the Act nonetheless requires judges to take account

of the Guidelines together with other sentencing goals.” Booker, 125 S. Ct. at 764. “[W]hile not

bound to apply the Guidelines,” the district courts “must consult those Guidelines and take them into

account when sentencing.” Id. at 767. The Supreme Court explained that “[s]ection 3553(a)

remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will

guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.”

Id. at 766.

Guided by Booker’s principle of meaningful appellate review for reasonableness and its

respect for the sentencing goals articulated in § 3553(a),1

 we “may conclude that a sentence is

unreasonable when 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.” United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). We credit a sentence such as Richardson’s that falls within the

advisory Guidelines range “with a rebuttable presumption of reasonableness.” United States v.

Williams, No. 05-5416, at 2 (6th Cir. Jan. 31, 2006).2

 This rebuttable presumption does not relieve

the sentencing court of its obligation to explain to the parties and the reviewing court its reasons for

imposing a particular sentence. Even when selecting a presumptively reasonable sentence within

the Guidelines range, a district court must “articulate[] its reasoning sufficiently to permit reasonable

appellate review, specifying its reasons for selecting” the specific sentence within that range. Id.

at 3. A district court “need not recite these [§ 3553(a)] factors but must articulate its reasoning in

deciding to impose a sentence in order to allow for reasonable appellate review.” United States v.

Kirby, 418 F.3d 621, 626 (6th Cir. 2005). We emphasize the obligation of the district court in each

case to communicate clearly its rationale for imposing the specific sentence. Where a defendant

raises a particular argument in seeking a lower sentence, the record must reflect both that the district

judge considered the defendant’s argument and that the judge explained the basis for rejecting it.

This assures not only that the defendant can understand the basis for the particular sentence but also

that the reviewing court can intelligently determine whether the specific sentence is indeed

reasonable.

Applying these principles to this case, we remain unpersuaded by Richardson’s argument

that his sentence is unreasonable. The sentencing hearing transcript reveals that the district court

articulated and explained its reasons for sentencing Richardson to a term at the higher end of the

Guidelines range. The court did not “simply select” what it viewed as “an appropriate sentence,”

Webb, 403 F.3d at 383, but rather explicitly considered many § 3553(a) factors in sentencing

Richardson. The district court considered Richardson’s history and characteristics, and was

justifiably concerned by his criminal history and the need to protect the public from his behavior.

The court explained that it imposed a sentence at the higher end of the Guidelines range because of

Richardson’s history of violent behavior, including three felony convictions by the time he was
No. 05-1260 United States v. Richardson Page 4

nineteen. The district court also noted Richardson’s continued problems with violence since being

incarcerated for this offense, which evidenced “his continuing inability to control his emotions and

his impulses and his reactions, even after he’s gotten free of drugs.” J.A. at 58 (Sentencing Hr’g Tr.

at 28).

The district court also questioned Richardson about pending state charges for kidnaping,

carjacking, and armed robbery arising out of an incident occurring only a few days before this bank

robbery. Richardson’s counsel clarified to the court that although he was not Richardson’s attorney

for those state matters, it was his understanding that Richardson intended to plead guilty to those

charges. The district court gave Richardson a chance to explain those pending charges, and stated

that he was not relying on the charges but that “they serve to arguably put this [instant] conduct in

some sort of context.” J.A. at 55 (Sentencing Hr’g Tr. at 25). The court stated that Richardson’s

behavior suggested Richardson was “an incredibly dangerous predator,” and that his “predator

characteristics have continued to manifest themselves while he’s locked up.” J.A. at 54 (Sentencing

Hr’g Tr. at 24).

The record suggests that the district court also considered Richardson’s needs under

§ 3553(a)(2)(D). The court stated it would recommend Richardson for the residential drug treatment

program, and noted that Richardson’s incarceration for this federal offense, rather than the pending

state charges, meant that he would be in the “better run” federal system with “more opportunities

available to prisoners.” J.A. at 57 (Sentencing Hr’g Tr. at 27). The record does not support

Richardson’s argument that the district court acted unreasonably, but instead suggests that the court

was properly guided by the § 3553(a) factors when selecting a sentence at the higher end of the

Guidelines range. Richardson’s sentence is reasonable.

B. Richardson’s Sixth Amendment Claim

Richardson also argues that the district court violated his Sixth Amendment rights when it

concluded that two of his previous felony convictions were for “crimes of violence,” and therefore

determined that he was a career offender under Guideline § 4B1.1 subject to a sentencing

enhancement. Richardson argues that it was improper for the judge, and not a jury, to characterize

his previous convictions as crimes of violence as defined by § 4B1.1. Richardson also argues that

because he committed this offense prior to Booker, applying any detrimental effect of Booker’s

remedy ruling to him “would violate the ex post facto and due process principle of fair notice.”

Appellant Br. at 16. We review de novo Richardson’s constitutional challenge to his sentence.

United States v. Copeland, 321 F.3d 582, 601 (6th Cir. 2003).

Richardson’s arguments lack merit for several reasons. First, controlling law, both before

and after Booker, counsels that a judge can make factual findings about a defendant’s prior

convictions without implicating the Sixth Amendment. See Booker, 125 S. Ct. at 756; Blakely v.

Washington, 542 U.S. 296, 301 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United

States v. Hollingsworth, 414 F.3d 621, 624 (6th Cir. 2005) (“The determination that Hollingsworth’s

prior convictions for multiple counts of aggravated assault and aggravated robbery included at least

one crime of violence was thus squarely within the province of the sentencing judge.”). Conclusions

about Richardson’s prior convictions would be treated the same before or after Booker, and so he

was not harmed by the district court’s application of Booker, which had just been decided at the time

he was sentenced. Richardson’s claims that his sentence under Booker raises ex post facto concerns

are therefore unwarranted, because he was not disadvantaged by the court’s application of Booker. See Weaver v. Graham, 450 U.S. 24, 29 (1981) (“[T]wo critical elements must be present for a

criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events

occurring before its enactment, and it must disadvantage the offender affected by it.”).
No. 05-1260 United States v. Richardson Page 5

Second, the determination that led to Richardson’s § 4B1.1 enhancement is not a judge-made

factual determination. We consider the question of whether a conviction is a conviction for a “crime

of violence” under the Sentencing Guidelines to be a legal determination, and therefore a question

appropriate for judicial decision-making. See United States v. Martin, 378 F.3d 578, 580 (6th Cir.

2004) (“[W]e give fresh review to the legal question whether either of [defendant’s] convictions

constitutes a ‘crime of violence.’”); United States v. Payne, 163 F.3d 371, 375 (6th Cir. 1998)

(holding “that the crime of larceny from the person in Michigan is a crime of violence as a matter

of law”). It is settled law that both of Richardson’s prior convictions under Michigan law, fleeing

and eluding and larceny from a person, are considered crimes of violence for the purpose of

sentencing. Martin, 378 at 580 (“[c]oncluding that third-degree fleeing and eluding under Michigan

law is a crime of violence”); Payne, 163 F.3d at 375. The district court’s determination that

Richardson should be classified as a career offender under § 4B1.1 was proper and does not violate

his rights under the Sixth Amendment.

III. CONCLUSION

Richardson’s sentence is reasonable and does not violate the Sixth Amendment, and

therefore we AFFIRM the judgment of the district court.