USA v. Jonathan Cashaw

Filing

PUBLISHED OPINION FILED. [09-51035 Affirmed ] Judge: CDK , Judge: WG , Judge: WED Mandate pull date is 11/23/2010 for Appellant Jonathan Edwin Cashaw [09-51035]

USA v. Jonathan Cashaw : 09-51035 Case

Document: 00511281999 Page: 1 Date Filed: 11/02/2010

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
N o . 09-51035 November 2, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J O N A T H A N EDWIN CASHAW, D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Western District of Texas

B e fo r e KING, GARWOOD, and DAVIS, Circuit Judges. P E R CURIAM: D e fe n d a n t - Appellant, Jonathan Edwin Cashaw, pleaded guilty to a drug c h a r g e and was sentenced to 290 months' imprisonment. Cashaw challenges his s e n te n c e , arguing that his career offender status under the United States S e n te n c in g Guidelines should not have prevented him from receiving a minor r o le adjustment to his offense level under the career offender provision. We a ffir m . I . Factual and Procedural Background O n April 24, 2009, police executed a search warrant on a home from which t h e y suspected Cashaw and an associate were selling drugs. During the

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Case: 09-51035 Document: 00511281999 Page: 2 Date Filed: 11/02/2010

No. 09-51035 e x e c u t io n of the warrant, police arrested both Cashaw and his associate after fin d in g , among other things, 106.15 grams of crack cocaine, stacks of currency, d r u g scales, and drug packaging materials in the home. The home was located w it h in 1,000 feet of a middle school. O n May 12, 2009, Cashaw was charged with one count of aiding and a b e t t i n g the possession with intent to distribute at least fifty grams of crack c o c a in e within 1,000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), (b )(1 )(A )(iii), 860(a), and 18 U.S.C. § 2. Cashaw pleaded guilty to the charge. C a s h a w 's pre-sentence investigation report ("PSR") recommended a base o f f e n s e level of 30. The PSR then recommended that Cashaw receive career o ffe n d e r status under United States Sentencing Guidelines ("Guidelines") § 4B1.1 because he had prior felony convictions for aggravated sexual assault a n d possession of cocaine with intent to deliver. Using the alternate offense le v e l from the career offender provision, the PSR recommended an offense level o f 34. This reflected his career offender offense level of 37, minus three levels for a c c e p t a n c e of responsibility under Guidelines §§ 3.E1.1 and 4B1.1(b). Under § 4B1.1(b), Cashaw's criminal history category was VI. Consequently, the PSR r e c o m m e n d e d a sentencing range of 262 to 327 months' imprisonment. See U.S. S ENTENCING GUIDELINES MANUAL (U.S.S.G.), ch. 5, pt. A, sentencing table (2 0 0 9 ).1 A t his sentencing on November 12, 2009, Cashaw objected to the PSR's r e c o m m e n d e d sentencing range and requested a two-level reduction to his o ffe n s e level because he was a minor participant in the offense pursuant to G u id e lin e s § 3B1.2.2 The district court agreed that Cashaw was a minor

We cite to the 2009 Guidelines because they were the version in effect on the date of Cashaw's sentencing. See U.S.S.G. § 1B1.11(a). A minor participant is a defendant who is "less culpable than most other participants, but whose role could not be described as minimal." U.S.S.G. § 3B1.2 cmt. n.5.
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No. 09-51035 p a r tic ip a n t , but it overruled Cashaw's objection, reasoning that the career o ffe n d e r provision precluded any downward adjustment for a minor participant. The district court adopted the PSR's recommendations and sentenced Cashaw t o 290 months' imprisonment. Cashaw appeals his sentence. I I . Analysis A . Standard of Review W e review a sentence imposed under the Guidelines for "reasonableness," m e a n in g we will reverse only if the district court abused its discretion. United S ta te s v. Cisneros­Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citing Gall v. U n i te d States, 552 U.S. 38, 46 (2007)). But we review the district court's

in t e r p r e t a t io n and application of the Guidelines de novo. Id. B . Sentence C a s h a w argues the district court committed reversible error when it c o n c lu d e d the Guidelines do not permit a minor participant adjustment for c a r e e r offenders. He does not challenge his sentence on any other basis.

Cashaw bases his argument on the fact that the career offender provision does n o t expressly preclude a downward adjustment for a minor participant and the fa c t that this court has never ruled to the contrary. This interpretation is not o n ly inconsistent with the sequence of the Guidelines' instructions, but also c o n t r a r y to basic principles of statutory interpretation.3 T h e district court determines a defendants' sentence under the Guidelines b y following, step-by-step, the sequence laid out in the "Application

We also note that every other circuit court of appeals to consider this issue has rejected Cashaw's interpretation of the career offender provision. See United States v. Morales­Diaz, 925 F.2d 535, 540 (1st Cir. 1991); United States v. Perez, 328 F.3d 96, 97­98 (2d Cir. 2003) (per curiam); United States v. Johnson, 155 F.3d 682, 684­85 (3d Cir. 1998); United States v. Ward, 144 F.3d 1024, 1036 (7th Cir. 1998); United States v. Beltran, 122 F.3d 1156, 1160 (8th Cir. 1997); United States v. McCoy, 23 F.3d 216, 218 (9th Cir. 1994) (per curiam); United States v. Jeppeson, 333 F.3d 1180, 1184 (10th Cir. 2003); United States v. Jeter, 329 F.3d 1229, 1230 (11th Cir. 2003) (per curiam).

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No. 09-51035 I n s t r u c t io n s ," § 1B1.1. See United States v. Reyes, 881 F.2d 155, 156 (5th Cir. 1 9 8 9 ) ("Section 1B1.1 maps out the manner in which a sentencing court should a p p ly the Guideline provisions."). This section governs application of the

G u id e lin e s , "[e]xcept as specifically directed." U.S.S.G. § 1B1.1. I n the instant case, following the instructions in sequence demonstrates t h a t the minor participant adjustment cannot be applied to the career offender p r o v is io n . Under § 1B1.1, the district court first determines the applicable G u id e lin e section and base offense level. Id. § 1B1.1(a)­(b). Next, it applies any a p p r o p r ia te upward or downward adjustments from Chapter Three of the G u id e lin e s . Id. § 1B1.1(c), (e). Both the minor participant and acceptance of r e s p o n s ib ilit y adjustments are found in Chapter Three. Id. §§ 3B1.2, 3E1.1. After Chapter Three adjustments, the district court then determines criminal h is t o r y category and "other applicable adjustments" from Chapter Four. Id. § 1B1.1(f). The career offender provision is found in Chapter Four and provides a n alternate offense level if the defendant qualifies as a career offender and the c a r e e r offender offense level is greater than the "otherwise applicable" offense le v e l. Id. § 4B1.1(a)­(b). A defendant's sentencing range is based on the final o ffe n s e level and criminal history category after these adjustments are applied t o the base level in sequence. Id. § 1B1.1(g). A p p ly in g the Chapter Three minor participant adjustment after the C h a p t e r Four career offender provision, as Cashaw urges, would disrupt the s e q u e n c e mandated by § 1B1.1. The only Chapter Three adjustment explicitly p e r m it t e d by Guidelines § 4B1.1(b), and thus authorized by the instructions, is t h e acceptance of responsibility adjustment.4 N o n e t h e le s s , Cashaw argues the career offender provision impliedly a u t h o r iz e s a minor participant adjustment out of sequence because it is not
Guidelines § 4B1.1(b) instructs: "[i]f an adjustment [for acceptance of responsibility] applies, decrease the offense level by the number of levels corresponding to the adjustment."
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No. 09-51035 e x p lic it ly prohibited. We disagree. The fact that the career offender provision a u t h o r iz e s an adjustment for acceptance of responsibility, but no other a d ju s tm e n t s , demonstrates that the Sentencing Commission intended for no o t h e r adjustment to apply. See United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1 9 8 9 ) (noting that the enumeration of specific exceptions to a provision in the G u id e lin e s indicates the purposeful exclusion of any other exceptions to that p r o v is io n ). As one of our sister circuits succinctly put it, "[h]ad the Sentencing C o m m is s io n intended for all Chapter Three adjustments to follow a career o ffe n d e r adjustment, there would have been no need for the Commission to e x p r e s s ly indicate the permissibility of a reduction [for acceptance of r e s p o n s ib ilit y ]." Jeppeson, 333 F.3d at 1184. Furthermore, implying a minor p a r tic ip a n t adjustment into the career offender provision would prevent im p le m e n ta t io n of Congress' directive that career offenders "receive a sentence o f imprisonment at or near the maximum term authorized." U.S.S.G. § 4B1.1 c m t . background (internal citations and quotation marks omitted). We conclude t h a t the minor participant adjustment does not apply to the career offender p r o v is io n in Guidelines § 4B1.1, and the district court, therefore, correctly in t e r p r e t e d that provision. I I I . Conclusion F o r the foregoing reasons, we AFFIRM.

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