United States of America v. Antonio Gay

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OPINION filed: AFFIRMED, decision not for publication pursuant to local rule 28(g). Ralph B. Guy , Jr., (authoring) and Richard Allen Griffin, Circuit Judges and Judith M. Barzilay, Judge, United States Court of International Trade. [09-3713, 09-4105]

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Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 1 N O T RECOMMENDED FOR FULL-TEXT PUBLICATION F ile Name: 10a0683n.06 N o s . 09-3713, 09-4105 U N I T E D STATES COURT OF APPEALS F O R THE SIXTH CIRCUIT FILED U N IT E D STATES OF AMERICA, P l a in tif f -A p p e lle e , v. A N T O N IO L. GAY, a/k/a Antonio Gay (09-3713), M IC H A E L M. GAY, a/k/a Michael Gay (09-4105), D e f e n d a n ts -A p p e lla n t s . O n Appeal from the United S ta te s District Court for the S o u th e rn District of Ohio at C o lu m b u s Nov 04, 2010 LEONARD GREEN, Clerk / B e fo r e : G U Y and GRIFFIN, Circuit Judges; BARZILAY, Judge.* D efen d an ts Antonio L. Gay and Michael M. R A L P H B. GUY, JR., Circuit Judge. G a y each pleaded guilty to a single count of conspiracy to distribute and possess with intent to distribute over five kilograms of cocaine and a related forfeiture count. Both challenge th e ir sentences as procedurally unreasonable, although for different reasons. After review o f the record and consideration of the arguments presented on appeal, we find no error and a f f irm . I. The Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting by d es i g n at i o n . * Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 2 Nos. 09-3713, 09-4105 2 D ef en d an ts Antonio Gay and Michael Gay, brothers, and two other defendants were c h a rg e d with conspiracy to distribute and to possess with intent to distribute over five k ilo g ra m s of cocaine between January 1, 2005, and April 22, 2008. Each of the four d e f en d a n ts was also charged with attempted possession with intent to distribute cocaine and f o rf e itu re of money and property as proceeds of illegal activity. The conspiracy involved the d is trib u tio n of kilogram quantities of cocaine brought to the Columbus area by another c o n sp ira to r, who began cooperating with the government. D e f en d a n ts entered written plea agreements under which they each agreed to plead g u ilty to the conspiracy and forfeiture counts and stipulated that the relevant conduct in v o lv e d at least 15 but not more than 50 kilograms of cocaine. The government agreed to d is m is s the remaining charges, to recommend a reduction in the offense level for acceptance o f responsibility, and to recommend a downward departure if substantial assistance was p ro v id e d . Both defendants were subject to a 120-month mandatory minimum term of im p riso n m en t pursuant to 21 U.S.C. 841(b)(1)(A)(ii). A n t o n io Gay pleaded guilty on January 21, 2009. His PSR recommended a total o f f en s e level of 31, which was based on the quantity of drugs involved and an adjustment for a c ce p ta n c e of responsibility. There was (and is) no objection to this calculation. With an o f f e n se level of 31 and a criminal history category of III, his Guidelines range was 135 to 1 6 8 months. At sentencing on May 29, 2009, the district court granted the government's m o tio n for downward departure pursuant to 5K1.1 of the United States Sentencing C o m m issio n Guidelines Manual (USSG) and 18 U.S.C. 3553(e). The 5K1.1 departure Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 3 Nos. 09-3713, 09-4105 3 re su lte d in an offense level of 29 and a Guidelines range of 108 to 135 months, and the d i str ic t court sentenced Antonio Gay to a below-Guidelines sentence of 102 months' im p ris o n m e n t. This appeal followed. M ic h a el Gay pleaded guilty on March 27, 2009, but did not provide substantial a ss ista n c e to the government prior to sentencing. His offense level of 31 was calculated in th e same manner as above, including the same reduction for acceptance of responsibility. W ith an offense level of 31 and a criminal history category of II, Michael Gay's Guidelines ra n g e was 121 to 151 months. The district court rejected defendant's arguments for a p p lica tio n of the "safety valve" provision, 18 U.S.C. 3553(f), and sentenced defendant to th e mandatory minimum sentence of 120 months of imprisonment. Defendant filed a timely a p p e a l. II. T h is court reviews challenges to the reasonableness of a defendant's sentence for a b u s e of discretion. Gall v. United States, 552 U.S. 38, 45-46 (2007). This inquiry has both a procedural and substantive component, id. at 51, although defendants both articulated their c laim s in terms of procedural unreasonableness. "A sentence is procedurally unreasonable if the district court failed to calculate (or improperly calculated) the Guidelines range, treated th e Guidelines as mandatory, failed to consider the 3553(a) factors, selected a sentence b a s e d on clearly erroneous facts, or failed adequately to explain the chosen sentence." U n ite d States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009) (citing Gall, 552 U.S. at 51). A. A n t o n io Gay Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 4 Nos. 09-3713, 09-4105 4 D e f en d a n t argues that the district court erred in calculating his criminal history score, o r in failing to depart downward in light of that criminal history. Neither claim is a basis for r e lie f . S p e c if ic a lly, Antonio Gay argues that his criminal history score should have been th re e instead of four, for a criminal history category of II instead of III, which would have c o rre sp o n d e d to a lower Guidelines range of 97 to 121 months. Without contesting the p o ints assessed for two prior sentences for driving without an operator's license (OWI), d e f e n d a n t argues that the district court erroneously assessed two criminal history points (in s te a d of one point) for his 1998 conviction for driving without an operator's license. T h e record is clear, however, that defendant did not object to the scoring of his c rim in a l history before or during sentencing. The district court also inquired at the close of th e sentencing hearing whether defendant had "any objection to the sentence just pronounced th a t's not been previously raised." Failure to object to this asserted procedural error at se n ten c in g restricts our review to determining whether the district court committed plain e rr o r. United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008). In scoring criminal history, two points are added for "each prior sentence of im p ris o n m en t" of at least 60 days but not exceeding one year and one month. USSG 4 A 1 .1 (b ). The term "sentence of imprisonment" is defined as a "sentence of incarceration a n d refers to the maximum sentence imposed"; but if part of the sentence is suspended, " `s e n te n c e of imprisonment' refers only to the portion that was not suspended." USSG 4 A 1 .2 (b )(1 ) and (2). In addition, "[i]n the case of a prior revocation of probation, parole, Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 5 Nos. 09-3713, 09-4105 5 s u p e rv is e d release, special parole, or mandatory release, add the original term of im p riso n m e n t to any term of imprisonment imposed upon revocation. The resulting total is u sed to compute the criminal history points for 4A1.1(a), (b), or (c)." USSG 4A1.2(k)(1). A c c o rd in g to the PSR, upon which both parties rely, defendant was sentenced on the c o n v i c tio n for driving without an operator's license to 180 days jail, served 15 days house a rre st, and had the remaining 165 days suspended. However, defendant's probation was re v o k e d and he served 165 days work release--24 days of which were in an Intensive S u p e rv is io n Residential Program and the remainder through the Home Incarceration P r o g r a m . Defendant argues that this sentence was not one of at least 60 days because this c o u rt has held that home incarceration is not a sentence of imprisonment for purposes of U S S G 4A1.1. United States v. Jones, 107 F.3d 1147, 1161-62 (6th Cir. 1997); United S ta te s v. Compton, 82 F.3d 179, 183 (7th Cir. 1996). However, as the government points out, the court in Jones distinguished the prior d e c is io n in Rasco holding that USSG 4A1.2(k) requires that "a sentence imposed upon re v o c a tio n of parole be added to the original sentence regardless of where that sentence is s e r v e d ." United States v. Rasco, 963 F.2d 132, 137 (6th Cir. 1992). Although Rasco in v o lv e d a sentence served in a halfway house on the revocation of parole, the court decided n o t to focus exclusively on the place of detention, but the reason for the detention. Id. at 135. In light of Rasco, we cannot conclude that the district court committed "plain" or "obvious" e rro r by concluding that the 165 days of work release the defendant served upon revocation o f his probation should be counted as a sentence of imprisonment regardless of where the Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 6 Nos. 09-3713, 09-4105 s e n te n c e was served. N e x t, Antonio Gay argues that even if correctly calculated, the district court erred by fa iling to grant a downward departure on the grounds that "the defendant's criminal history c a te g o ry substantially over-represents the seriousness of the defendant's criminal history or th e likelihood that the defendant will commit other crimes." USSG 4A1.3(b)(1). This c o u rt has consistently held that a district court's decision not to depart downward from the G u id e lin e s is not reviewable on appeal "unless the record shows that the district court was u n a w a re of, or did not understand, its discretion to make such a departure." United States v . Santillana, 540 F.3d 428, 431 (6th Cir.), cert. denied, 129 S. Ct. 469 (2008); see also U n ited States v. Puckett, 422 F.3d 340, 344 (6th Cir. 2005); United States v. Stewart, 306 F .3 d 295, 229 (6th Cir. 2002). A lth o u g h departure was requested on this basis, defense counsel expressly withdrew th e objection at the outset of the sentencing hearing in light of the government's motion for d e p a rtu re under 5K1.1 and the court's representation that sentence would be imposed b e lo w the resulting Guidelines range. The district court nonetheless elected to comment on th e objection, stating: E v e n though the objection has been withdrawn, on a certain level, [defense c o u n se l], I kind of agree with you. And that's only on this level. On the S e c tio n 3553(a) level, rather than a guideline level, the Court would find that, yo u know, these are three traffic offenses, and I'm glad that you've brought th a t to my attention, that they do not involve, necessarily, any crimes of v io le n c e. And the criminal history category, although correctly calculated by [ th e probation officer], the Court does recognize that they are minimal in n a tu re when compared to some of the criminal histories that I have seen. D e f e n d a n t argues that remand is appropriate because these comments were at least 6 Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 7 Nos. 09-3713, 09-4105 7 am b igu o u s as to whether the district court recognized its discretion to depart downward u n d e r the Guidelines. O n the contrary, the import of these statements was that the defendant's minimal c rim in a l history did not warrant departure under the Guidelines, although it would weigh in d e f en d a n t's favor in considering the 3553(a) factors. Nor was the district court required to "explicitly state that it is aware of its discretionary authority to depart downward, since th e re is `no duty on the trial judge to state affirmatively that he knows he possesses the power to make a downward departure, but declines to do so.'" United States v. Lucas, 357 F.3d 5 9 9 , 609-10 (6th Cir. 2004) (quoting United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1 9 9 5 )). Accordingly, we reject defendant's argument as to this issue. B. M ic h a e l Gay A p p e a lin g the district court's finding that he was not eligible for relief under the " sa f ety valve" provisions of 18 U.S.C. 3553(f) and USSG 5C1.2, Michael Gay argues th a t the district court could have disregarded his prior misdemeanor conviction for OWI and th e re b y render him eligible to be sentenced without regard for the mandatory minimum. This c o n ten tio n is without merit. T h e PSR recommended that two points be assessed for defendant's prior sentences: o n e for his misdemeanor drug abuse conviction and one for his OWI conviction. Although d e f en d a n t argued at sentencing that the OWI conviction was "too old," he concedes on a p p e al that the sentence, which was imposed on November 4, 1997, was properly counted b e c au s e it was "imposed within ten years of the defendant's commencement of the instant Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 8 Nos. 09-3713, 09-4105 8 o f f en se " on January 1, 2005. USSG 4A1.2(e)(2). One point was assessed under USSG 4 A 1 .1 (d ), because "[c]onvictions for driving while intoxicated or under the influence (and s im ila r offenses by whatever name they are known) are counted." USSG 4A1.2, cmt. n.5. T h a t being the case, defendant had two criminal history points and did not satisfy the first of th e five requirements for eligibility for safety-valve relief--that "the defendant does not have m o re than 1 criminal history point, as determined under the sentencing guidelines." 3 5 5 3 (f)(1). T o the extent defendant contends that this requirement could have been satisfied if the d is tric t court exercised its discretion to depart downward with respect to his criminal history, th e argument is foreclosed by this court's contrary holding in United States v. Penn, 282 F.3d 8 7 9 , 881-82 (6th Cir. 2002). We explained in Penn that 5C1.2, which interprets the "safety v a lv e " exception, "unambiguous[ly], and clearly limits the district court's authority to apply th e `safety valve' provision to cases where a defendant has not more than one criminal h isto ry point as calculated under 4A1.1, regardless of whether the district court determines th a t a downward departure in the defendant's sentence is warranted by 4A1.3." 282 F.3d a t 881; see also USSG 4A1.3(b)(3)(B) (2008) ("A defendant whose criminal history c a te g o ry is Category I after receipt of a downward departure under this subsection does not m ee t the criterion of subsection (a)(1) of 5C1.2 . . . if, before receipt of the downward d e p a rtu re , the defendant had more than one criminal history point under 4A1.1 (Criminal H isto ry Category)."). D e f en d a n t also argues that the district court could have considered the assessment of Case: 09-3713 Document: 006110779831 Filed: 11/04/2010 Page: 9 Nos. 09-3713, 09-4105 9 th e criminal history point for the OWI conviction to be "advisory," leaving only one criminal h is to ry point and satisfying the first requirement for eligibility under the "safety valve" p ro v is io n . This argument--essentially that the district court failed to recognize its discretion to apply the safety-valve exception through the granting of a downward variance--was re je c te d by this court in United States v. Branch, 537 F.3d 582, 592-95 (6th Cir.), cert denied, 1 2 9 S. Ct. 752 (2008). See United States v. Carreon, 373 F. App'x 557, 560 (6th Cir. 2010) ( u n p u b lis h e d ) (holding that "although the Guidelines are not mandatory when applied in d e p e n d e n tly, the district court still must adhere to the Guidelines insofar as they incorporate th e provisions of 3553(f)"). Because neither a departure nor a variance could have affected 3553(f)'s applicability, defendant's claim is without merit. F in a lly, even if that were not so, the district court also found that Michael Gay was o th e rw ise ineligible under the safety-valve exception because he had not "truthfully provided to the Government all information and evidence the defendant ha[d] concerning the offense o r offenses that were part of the same course of conduct or of a common scheme or plan[.]" 1 8 U.S.C. 3553(f)(5); see also USSG 5C1.2(a)(5). Defendant did not (and does not) d is p u te that he declined to cooperate with the government, and does not argue that the district c o u rt's finding in this regard was clearly erroneous. See United States v. Adu, 82 F.3d 119, 1 2 5 (6th Cir. 1996). A F F IR M E D .

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