United States v. Nassar - No. 17-2490, 2018 U.S. App. LEXIS 23808 (6th Cir. Aug. 22, 2018)

Rule:

A district court has discretion to impose consecutive sentences under U.S. Sentencing Guidelines Manual § 5G1.3 upon consideration of the 18 U.S.C.S. § 3553(a) sentencing factors and the applicable guidelines and policy statements in effect at the time of sentencing, 18 U.S.C.S. § 3584. The district court is not required to specifically reference § 5G1.3, but it must make generally clear its rationale for imposing consecutive sentences and achieving an appropriate incremental penalty. 

Facts:

Lawrence Gerard Nassar appealed the 720-month sentence imposed by the district court following his guilty pleas to charges of receiving and attempting to receive child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), and obstructing a federal investigation by destroying evidence, in violation of 18 U.S.C. § 1519. In calculating Nassar's sentencing range under the Sentencing Guidelines, the district court imposed a five-level increase in his offense level pursuant to USSG § 2G2.2(b)(5) because his conduct included a pattern of activity involving the sexual abuse or exploitation of a minor, specifically, his systematic abuse of forty children. Some of these incidents were also the basis for Nassar's state criminal-sexual-conduct convictions. The district court determined that Nassar's total offense level was 41. The district court assessed Nassar two criminal history points for his state convictions, placing him in criminal history category II. The district court's calculations prescribed a sentencing range of 360 months to life imprisonment, but because the statutory maximum sentence on each count was 240 months of imprisonment, Nassar's actual sentencing range was 360 to 720 months in prison. Nassar did not object to the district court's calculation of his sentencing range. In considering the 18 U.S.C. § 3553(a) sentencing factors, the district court highlighted Nassar's extensive collection of child pornography his destruction of evidence, his abuse of a position of trust as a physician to serially abuse his patients, and his infliction of serious emotional and psychological harm on vulnerable victims. In light of these considerations, the court concluded that Nassar would continue to be "a real and present danger to children," and therefore its sentence needed to promote punishment, deterrence, and protection of the public. To accomplish those goals, the district court determined that it was "imperative that Mr. Nassar be deterred for as long as possible," which meant imposing consecutive 240-month sentences on each count, for a total of 720 months of imprisonment, to be served consecutive to the sentences the state courts had yet to impose on Nassar's criminal-sexual-conduct convictions. When the district court asked "if there is any legal objection to the sentence which I have just announced, whether there is anything that is not already on the record why sentence should not be imposed as indicated," Nassar objected only to the court's decision to run his federal sentence consecutive to his state sentences. On appeal, Nassar argued that the district court erred in assessing criminal history points for his state convictions because those convictions were included in the relevant conduct used to calculate his offense level, and that his sentence is procedurally unreasonable because the district court failed to consider USSG § 5G1.3(c) when it required him to serve his federal sentence consecutive to his state sentences.

Issue:

Did the district court err in assessing criminal history points for Nassar’s state convictions?

Answer:

No.

Conclusion:

There court found that there was no controlling case law that resolved the question presented in Nassar’s first assignment of error and consequently, the district court did not plainly err when it assigned criminal history points to Nassar’s state convictions and also relied in part on those convictions to increase his offense level for engaging in a pattern of sexually abusing minors. In deciding to impose consecutive sentences, the district court relied on the duration, enormity, and gravity of Nassar’s criminal conduct, the serious harm that he inflicted on his victims, and the serious safety threat that Nassar presented to the public. Nassar was not similarly situated to other defendants given the scope of his criminal conduct.