USA v. Amber Flower

Filing

OPINION filed : The district court's sentencing decisions are AFFIRMED, decision not for publication. R. Guy Cole , Jr., Chief Circuit Judge; Richard F. Suhrheinrich and John M. Rogers, Circuit Judges. [14-6492, 15-5213]

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0069n.06
Case Nos. 14-6492, 15-5213
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AMBER NICOLE FLOWERS; TIMOTHY JOE
SWALLOWS,
Defendants-Appellants.

BEFORE:

)
)
)
)
)
)
)
)
)
)
)

FILED
Feb 02, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE

OPINION

COLE, Chief Judge; SUHRHEINRICH and ROGERS, Circuit Judges.

COLE, Chief Judge. Amber Nicole Flowers and Timothy Joe Swallows pleaded guilty to
aiding and abetting the possession with intent to distribute methamphetamine. Flowers received
77 months’ imprisonment, after providing substantial assistance to the government, and
Swallows received 262 months’ imprisonment, after accounting for his career-offender status.
Both defendants now appeal their sentences. We affirm.
I.
In June 2012, a local sheriff’s deputy pulled Swallows over for speeding in Bradley
County, Tennessee. Flowers was in the passenger seat. As the officer approached the driver’sside door, he noticed a “strong odor of alcohol emanating from the vehicle.” The officer asked
Swallows to exit the vehicle for a field sobriety test.

A background check revealed that

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 2

Case Nos. 14-6492, 15-5213
United States v. Flowers; Swallows
Swallows’s license was revoked for driving under the influence and Flowers had an outstanding
warrant on a drug charge. Both were arrested.
Flowers was advised of her Miranda rights at the scene and confessed that she had two
bags of methamphetamine on her person—84.7 grams, 93.4% pure. But she claimed that the
drugs belonged to Swallows. According to Flowers, Swallows threw the bags at her when they
saw the “blue lights” and told her to “get rid of [them].” Swallows, meanwhile, was taken to the
Bradley County jail. He was also advised of his Miranda rights and agreed to speak with two
detectives after signing a waiver. During the interrogation, Swallows admitted that he was
“aware of the methamphetamine” and had “used some” that day.
In December 2012, a grand jury indicted Flowers and Swallows on two counts of
trafficking in methamphetamine. Swallows filed a motion to suppress, arguing that the traffic
stop and subsequent custodial interrogation violated his constitutional rights. The district court
denied his motion. Eventually, Flowers and Swallows both pleaded guilty to one count of aiding
and abetting the possession with intent to distribute 50 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a), (b)(1)(A) and 18 U.S.C. § 2.
We review the district court’s sentencing decisions and consider Flowers’s and
Swallows’s arguments in turn.
II.
Flowers’s offense level was set at 27. See USSG §§ 2D1.1, 3E1.1. This designation,
combined with a criminal history category of IV, see USSG §§ 4A1.1, 1.2, resulted in a
guidelines range of 100 to 125 months’ imprisonment. See USSG Ch. 5, Pt. A. Flowers
qualified for a 120-month mandatory minimum under 21 U.S.C. § 841(b)(1)(A), however, which
became the low end of her guidelines range. See USSG § 5G1.1.

-2-

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 3

Case Nos. 14-6492, 15-5213
United States v. Flowers; Swallows
At Flowers’s sentencing hearing, the government moved for, and the court granted, a
three-level substantial assistance departure. See 18 U.S.C. § 3553(e); USSG § 5K1.1. This
reduced Flowers’s guidelines range to 77 to 96 months’ imprisonment. Still, Flowers’s counsel
objected to the extent of the departure. She argued that the district court should have considered
the 18 U.S.C. § 3553(a) factors, along with Flowers’s substantial assistance, and varied further
below the mandatory minimum. She hoped for a non-custodial sentence, given Flowers’s newfound sobriety, work-ethic, and sense of parental responsibility.
The district court considered this argument and rejected it. The court recalled “actually
[getting] reversed by the Sixth Circuit [for] considering the [§] 3553(a) factors in a substantial
assistance departure, and [being] chastised by the circuit for doing so.” Flowers’s counsel
conceded that “Sixth Circuit case law . . . states that the [c]ourt cannot, under [§] 3553(e),
sentence a defendant below a mandatory minimum based on anything aside from the defendant’s
cooperation.” The court then went on to acknowledge Flowers’s efforts at self-rehabilitation, but
also pointed to countervailing concerns of recidivism. After weighing these factors, among
others, the court decided that the “low end of th[e] guideline[s] range is appropriate” and
sentenced her to 77 months’ imprisonment.
On appeal, Flowers’s primary challenge is to the district court’s decision not to depart
further below the mandatory minimum. In the ordinary course, we have no jurisdiction to review
a defendant’s challenge to the extent of a substantial assistance departure. See United States v.
Curry, 536 F.3d 571, 573 (6th Cir. 2008).
As such, Flowers takes us on a methodological detour. She asks us to remand her case
for resentencing because, in her view, the district court should have considered the Ҥ 3553(a)
factors . . . along with the extent of [her] substantial assistance” to depart further below the

-3-

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 4

Case Nos. 14-6492, 15-5213
United States v. Flowers; Swallows
mandatory minimum. We review the district court’s legal interpretation of the guidelines de
novo. United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010).
Flowers’s argument is meritless. We have held, many times over, that “only factors
relating to a defendant’s cooperation may influence the extent of a departure pursuant to
§ 3553(e).” United States v. Williams, 687 F.3d 283, 286 (6th Cir. 2012) (emphasis omitted)
(quoting United States v. Bullard, 390 F.3d 413, 416 (6th Cir. 2004)). Every other circuit agrees.
United States v. Grant, 636 F.3d 803, 814 n.8 (6th Cir. 2011) (en banc) (collecting cases). Here,
as the district court dutifully recognized, it would have been error to consider the § 3553(a)
factors to further reduce Flowers’s sentence.1 See Williams, 687 F.3d at 286.
Flowers concedes as much. So, in a last-ditch effort, she urges this court to “abandon its
prohibition on the consideration of factors other than the defendant’s substantial assistance” and
allow district courts to engage in plenary sentencing under § 3553(e). In support of this view,
she directs our attention to provisions that deal with post-incarceration sentence modifications:
Federal Rule of Criminal Procedure 35(b), which allows for substantial assistance reductions
1

This conclusion “does not mean that context has no role to play in the § 3553(e) analysis.” See Williams,
687 F.3d at 286. As we have made clear in a recent en banc decision, “district courts have traditionally determined
the value of a defendant’s substantial assistance” under § 3553(e) and USSG § 5K1.1 by “tak[ing] into account the
practicalities of the context.” Grant, 636 F.3d. at 816. This qualification remains good law.
To be sure, determining the value of a defendant’s cooperation begins, “as a matter of course,” with
“consideration of the defendant’s activities on behalf of the government and how much his assistance helped in the
investigation or prosecution of another.” Id. at 817. But a district court might “wish to consider” other contextual
factors affecting the valuation:
For example, a district court might recognize that a defendant’s assistance is of extremely high
value but also recognize that fully valuing the cooperation would give the defendant a sentence
much lower than co-defendants who were far less culpable. Giving a lesser reduction under these
circumstances might well be warranted. Similarly, if the defendant was among the least culpable
in a multi-defendant case, his extremely valuable assistance could be fully rewarded. Another
typical situation involves consideration of a defendant’s capacity for abiding by the law. A
defendant whose prior criminal activity is non-existent or not too serious could be fully rewarded
for his valuable assistance, while the valuable cooperation of a defendant who is a threat to society
might not be rewarded quite so highly. And, finally, a district judge might properly consider a
sentence below a certain point inappropriate for a defendant convicted of a heinous crime, and
thus value his cooperation less, while the equivalent cooperation of a defendant who is not a threat
to society could be fully valued.
Id. Of course, “substantial assistance is the governing principle in this exercise of discretion.” Id. at 816.

-4-

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 5

Case Nos. 14-6492, 15-5213
United States v. Flowers; Swallows
after sentencing, and 18 U.S.C. § 3582(c)(2) (and its guidelines-counterpart, USSG § 1B1.10),
which allows for sentence modifications based on a sentencing range that has subsequently been
lowered by the Sentencing Commission. Flowers asserts that, when reducing a sentence after
incarceration, these provisions allow a district court to consider the § 3553(a) factors along with
the defendant’s substantial assistance. It follows, she says, that “[t]here is not a logical reason to
allow for the consideration of the [§] 3553(a) factors during a defendant’s . . . resentencing, but
exclude their consideration during her initial sentencing.”
Even if these provisions were relevant to the task at hand, however, Flowers’s argument
is misguided. We have recently held that the plenary Ҥ 3553(a) factors have no role in Rule
35(b) proceedings,” just as they have no role in § 3553(e) motions. Grant, 636 F.3d at 816.
Our “longstanding practice” has been to interpret Rule 35(b) “in lockstep” with § 3553(e). Id. at
815. And we have also recognized that sentence modifications under § 3582(c)(2) are “closely
analogous to Rule 35(b) reductions.” Id. (citing Dillon v. United States, 560 U.S. 817, 827–28
(2010)). Indeed, as the Supreme Court has said, “[l]ike § 3582(c)(2), Rule 35 delineates a
limited set of circumstances in which a sentence may be corrected or reduced.” Dillon, 560 U.S.
at 828.

These provisions are “congressional act[s] of lenity” that allow for “limited

adjustment[s] to an otherwise final sentence and not a plenary resentencing.” See id. at 826, 828.
The 2014 amendments to USSG § 1B1.10 do not change our conclusion. Flowers’s
applicable guidelines range has not “subsequently been lowered” as a result of a retroactive
amendment to the guidelines. See 18 U.S.C. § 3582(c)(2); Dillon, 560 U.S. at 826; USSG
§ 1B.1.10(a)(1). As such, she is not currently eligible for a sentence modification under this
provision.

See USSG 1B1.10, comment. (n.1).

Whatever the effect of the Sentencing

Commission’s amendments to § 1B1.10, see USSG Supp. App. C, Amdts. 780, 782, 788

-5-

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 6

Case Nos. 14-6492, 15-5213
United States v. Flowers; Swallows
(effective Nov. 1, 2014), we have no occasion to revisit the longstanding rule that courts may not
consider non-assistance factors in departing below a mandatory minimum under § 3553(e).
Next, Flowers challenges the substantive reasonableness of her sentence on grounds that
it is “greater than necessary to comply with the purposes of § 3553(a).” We review for abuse of
discretion.

United States v. Taylor, 800 F.3d 701, 712 (6th Cir. 2015).

Substantive

reasonableness asks whether the length of a particular sentence is appropriate, “tak[ing] into
account the totality of the circumstances, including the extent of any variance from the
Guidelines range.” See Gall v. United States, 552 U.S. 38, 51 (2007).
Ordinarily, “[t]he essence of a substantive-reasonableness claim is whether the length of
the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C.
§ 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010). But when
a mandatory minimum sentence has been challenged as too high, it is “by definition
substantively reasonable.” United States v. Marshall, 736 F.3d 492, 501 (6th Cir. 2013).
No basis exists for Flowers to argue that her sentence was substantively unreasonable.
As explained above, after granting the government’s substantial assistance motion, the district
court lacked discretion to consider the § 3553(a) factors when departing below the mandatory
minimum. See Grant, 636 F.3d at 816. “The whole point of mandatory minimums is to remove
from judges the discretion to impose low sentences on sympathetic defendants.” Marshall, 736
F.3d at 501. Whether Flowers’s sentence is commensurate to the § 3553(a) sentencing factors is
“immaterial,” as she received the “lowest possible legal sentence.” See Grant, 636 F.3d at 816.
Finally, Flowers argues that her sentence “violates the Eight[h] Amendment prohibition
against cruel and unusual punishment.” Because she did not raise this argument in the district

-6-

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 7

Case Nos. 14-6492, 15-5213
United States v. Flowers; Swallows
court, we review it for plain error. See Fed. R. Crim. P. 52(b); United States v. Dedman,
527 F.3d 577, 591 (6th Cir. 2008).
The Eighth Amendment “encompasses a narrow proportionality principle” and “forbids
only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin v. Michigan,
501 U.S. 957, 997, 1001 (1991) (Kennedy, J., concurring in part and concurring in judgment).
Moreover, we “grant substantial deference” to Congress in “determining the types and limits of
punishments for crimes.” Id. at 999 (quoting Solem v. Helm, 463 U.S. 277, 290 (1983)).
Accordingly, a sentence “within the maximum set by statute generally does not constitute cruel
and unusual punishment.” United States v. Layne, 324 F.3d 464, 474 (6th Cir. 2003) (quoting
Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000)). Here, Flowers’s 77-month sentence—far
below the 120-month mandatory minimum—was not “grossly disproportionate” to her offense.
See id. (holding that 87-month sentence for methamphetamine manufacturing, which was “well
below the twenty-year statutory minimum,” could not “be said to be either ‘extreme’ or ‘grossly
disproportionate’ to the crime”). Finding no error, plain or otherwise, our review is at an end.
III.
Swallows’s base offense level was set at 34, after an enhancement for his career offender
status. See USSG §§ 2D1.1, 3E1.1, 4B1.1. His criminal history category was set at VI: 13
criminal history points for his prior sentences—including three convictions for sale of
methamphetamine—and an additional two because he committed the instant offense while on
parole. See USSG §§ 4A1.1, 4A1.2. All of this produced an advisory guidelines range of 262 to
327 months’ imprisonment. See USSG Ch. 5, Pt. A.
At Swallows’s sentencing hearing, defense counsel made no relevant objections. Instead,
he “asked for mercy, either [in the form of] a downward variance or a motion [for a sentence]

-7-

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 8

Case Nos. 14-6492, 15-5213
United States v. Flowers; Swallows
outside of the guidelines.” The court stated, however, that “the facts are pretty clear that
[Swallows’s] prior felony record justifies classif[ying] him as a career offender.” Ultimately,
after considering the § 3553(a) factors, the court imposed a bottom-of-the-guidelines sentence:
262 months.
On appeal, Swallows attempts to challenge the district court’s suppression ruling.
He asserts that the officers “conducted a drug investigation without probable cause” and he did
not “voluntarily waive his Miranda rights” during the subsequent interrogation. But a defendant
“may not appeal an adverse ruling on a pre-plea motion to suppress evidence unless he has
preserved the right to do so by entering a conditional plea of guilty in compliance with [Federal
Rule of Criminal Procedure] 11(a)(2).” United States v. Bell, 350 F.3d 534, 535 (6th Cir. 2003).
Here, Swallows entered an unconditional plea without preserving the right to appeal the ruling
on his suppression motion. He may not raise this issue on appeal.
Next, Swallows challenges the substantive reasonableness of his sentence. He argues that
the “career criminal enhancement over-represented the seriousness of [his] offense.”
We presume on appeal that a within-guidelines sentence is substantively reasonable. Gall, 552
U.S. at 51.
Swallows has not rebutted that presumption. See United States v. Vonner, 516 F.3d 382,
389–90 (6th Cir. 2008) (en banc). Here, the district court took note of the “major problem in our
communities with methamphetamine” and explained the need “to protect the public
from [Swallows’s] future crimes.”

In the district court’s view, this was “a very

important consideration” given Swallows’s “marked number of criminal convictions” for
methamphetamine trafficking. Indeed, as the district court aptly noted, Swallows possessed the
“type of background that the Sentencing Commission had in mind when it enacted the career

-8-

Case: 14-6492

Document: 27-2

Filed: 02/02/2016

Page: 9

Case Nos. 14-6492, 15-5213
United States v. Flowers; Swallows
offender guideline.” See USSG § 4B1.1 comment. (backg’d) (noting that “substantial prison
terms should be imposed on . . . repeat drug traffickers”). In any case, the district court imposed
a sentence “at the very bottom” of Swallows’s guidelines range. See United States v. Michael,
576 F.3d 323, 329 (6th Cir. 2009). This was not an abuse of discretion. See Gall, 552 U.S. at
51.
IV.
The district court’s sentencing decisions are affirmed.

-9-