USA v. Donny Howell

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 28(g). Boyce F. Martin , Jr., Authoring Circuit Judge; Alan E. Norris, Circuit Judge and Eugene E. Siler , Jr., Circuit Judge.

Case: 10-3003 Document: 006110941329 Filed: 04/28/2011 Page: 1

File Name: 11a0274n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 10-3003

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Apr 28, 2011
LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO

DONNY HOWELL,
Defendant-Appellant.

/
Before:

MARTIN, NORRIS, and SILER, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Donny Howell appeals the sentence he received

after pleading guilty to being a felon in possession of a firearm. Howell argues that the United States
improperly refused to move for a one-level reduction in his offense level based on his acceptance
of responsibility, rendering his sentence procedurally unreasonable. Additionally, Howell argues that
his sentence is substantively unreasonable in light of his difficult upbringing. However, the United
States was not required to move for a reduction in offense level because it believed that Howell had
not accepted responsibility, and Howell has not rebutted the presumption that his within-Guidelines
sentence is substantively reasonable. Therefore, we AFFIRM Howell’s sentence.
I.

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Cincinnati police officers saw Donny Howell walking and, knowing that there was an open
warrant for his arrest, approached him. Howell, it seems, also knew about the open warrant, and
attempted to flee. The officers gave chase. With the officers in hot pursuit, Howell pulled a pistol
out of his jacket and attempted to heave it over a metal gate. The pistol did not make it over the gate,
and the officers noted the location of the gun, which was never out of their line of sight. Eventually
the officers caught up to Howell and placed him under arrest.
While handcuffing Howell, the officers observed Ronald Crawley pick up the gun that
Howell had discarded. After a brief chase, officers apprehended Crawley and transported him to jail
along with Howell.
Howell did not enter a plea agreement, but pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). Crawley, however, did not plead guilty.
Howell voluntarily testified as a witness at Crawley’s criminal trial in an effort to show that Crawley
was not the one who picked up the gun he had discarded. Howell testified that during his tussle with
the officers he saw an unrelated third person who “deviously ran up on the scene,” and took the gun.
The jury nonetheless convicted Crawley of being a felon in possession of a firearm.
The United States did not appreciate Howell’s testimony. It filed a memorandum urging the
district court not to credit him with accepting responsibility because, in its view, Howell attempted
to obstruct justice by offering false testimony at Crawley’s trial. The United States recognized that
the court could give Howell a two-point reduction in offense level for accepting responsibility under
section 3E1.1(a) of the United States Sentencing Guidelines. But, the United States informed the

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court that it would not be moving for an additional, one-level acceptance-of-responsibility reduction
pursuant to section 3E1.1(b) of the Guidelines.
The district court had presided over Crawley’s trial and saw Howell’s testimony. At
sentencing, the district court stated in reference to Howell’s testimony, “It was incredible. It was
literally incredible. Mr. Howell’s manner of testifying, his facial expressions, indicated what I
considered to be a manifest lack of respect for the law and for the Court.” In spite of this, the district
court gave Howell a two-level adjustment for acceptance of responsibility under section 3E1.1(a)
of the Guidelines.
This reduction left Howell at an offense level of eighteen and criminal history category VI,
for which his advisory Guidelines range was four years and nine months to five years and eleven
months of imprisonment. The district court imposed a sentence at the top of the Guidelines
range—five years and eleven months imprisonment.
II.
When reviewing a criminal defendant’s offense level under the Guidelines, we review the
district court’s factual findings for clear error and its legal conclusions de novo. United States v.
Petrus, 588 F.3d 347, 352 (6th Cir. 2009).
Section 3E1.1(a) of the Guidelines allows the district court to reduce a defendant’s offense
level by two levels if the defendant “clearly demonstrates acceptance of responsibility for his
offense.” If the defendant meets this requirement, section 3E1.1(b) provides that the United States
may move for an additional one-level reduction if the defendant’s offense level is sixteen or greater

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and the defendant assisted authorities in the investigation or prosecution of his own misconduct.
U.S.S.G. § 3E1.1; see United States v. Lapsins, 570 F.3d 758, 767-68 (6th Cir. 2009).
In Lapsins, we held that the Guidelines give the United States discretion to file a motion for
an additional one-level reduction under section 3E1.1(b) so long as the United States does not act
with a constitutionally impermissible motive. Id. at 769. The defendant in Lapsins had entered a
plea agreement but then contested some of the factual findings in the presentence report. Id. at 768.
At sentencing the United States argued that the defendant should not receive any reduction for
having accepted responsibility in light of his objections to the presentence report and use of the word
“allegedly” in his sentencing memorandum to describe acts for which he pled guilty. Id. The district
court, however, disagreed. It believed the defendant had accepted responsibility and granted a twolevel reduction in offense level. Id. at 769. We affirmed the defendant’s sentence, holding that even
if the district court awards a two-level reduction pursuant to section 3E1.1(a), the United States may
refuse to move for the additional one-level reduction under section 3E1.1(b) if it disagrees with the
district court’s assessment and believes the defendant has not genuinely accepted responsibility. Id.
at 770.
Similarly, here, the record reflects that the United States had a good faith belief that Howell
had not accepted responsibility based on his incredible testimony at Crawley’s trial. Howell argues
that Lapsins was wrongly decided, but we are powerless to overrule the published decision of
another panel. See Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir. 2004).
While Howell, unlike the defendant in Lapsins, did not contest any of the factual findings in his
presentence report, offering highly incredible testimony at trial in an effort to help a friend avoid

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conviction in the manner that Howell did is not consistent with having accepted responsibility for
his actions. Therefore, because the United States had a valid ground for not moving for an additional
one-level reduction, we are bound to follow Lapsins and hold that Howell’s sentence was
procedurally reasonable.
III.
In selecting a sentence, the district court must consider the factors set forth in section 3553(a)
and arrive at a sentence “sufficient, but not greater than necessary, to comply with” those factors.
18 U.S.C. § 3553(a); United States v. Gunter, 620 F.3d 642, 647 (6th Cir. 2010). A sentence will
be deemed substantively unreasonable if the court “select[s] the sentence arbitrarily, bas[es] the
sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an
unreasonable amount of weight to any pertinent factor.” United States v. Collington, 461 F.3d 805,
808 (6th Cir. 2006) (citations omitted) (alterations in original). We apply a rebuttable presumption
of reasonableness to sentences falling within a defendant’s properly calculated guidelines range.
United States v. Ruvalcaba, 627 F.3d 218, 225 (6th Cir. 2010).
Howell argues that his within-Guidelines sentence is unreasonable because of his difficult
upbringing. However, the district court considered this factor in selecting Howell’s sentence, and
this assertion is insufficient to rebut the presumption of reasonableness afforded to his withinGuidelines sentence. Therefore, Howell’s sentence is not substantively unreasonable.
IV.
The United States acted within its discretion when it refused to move for an additional onelevel reduction in Howell’s offense level for acceptance of responsibility. Therefore, Howell’s

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sentence is not procedurally unreasonable. Because we also conclude that Howell has not rebutted
the presumption of reasonableness afforded to his within-Guidelines sentence, we AFFIRM his
sentence.