USA v. Lewis Powell, II

Filing

OPINION filed : We vacate Powell s sentence and remand the case for resentencing consistent with thisopinion. Decision not for publication. Damon J. Keith, John M. Rogers, and Raymond M. Kethledge (AUTHORING), Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0157n.06
No. 15-4421
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEWIS POWELL, II,
Defendant-Appellant.

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FILED
Mar 10, 2017
DEBORAH S. HUNT, Clerk

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

Before: KEITH, ROGERS, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. This case is before us for a second time. In 2014, Powell
pleaded guilty to one count of conspiracy to possess with intent to distribute heroin and crack
cocaine, and one count of dealing in unlicensed firearms. The district court determined that
Powell was a career offender, which gave him a base-offense level of 34. The court then applied
a three-level reduction for acceptance of responsibility and a two-level reduction for substantial
assistance, which gave Powell a final offense level 29 and a Guidelines range of 151 to 188
months. The district court sentenced Powell to 155 months’ imprisonment.
On appeal, we held that Powell was not a career offender. United States v. Powell, 798
F.3d 431 (6th Cir. 2015). To determine whether that error was harmless, we calculated Powell’s
offense level without the career-offender enhancement. According to the pre-sentence report,
Powell’s adjusted-offense level without that enhancement was 33. Thus, after the district court’s
reductions, his offense level was 28. But Powell’s career-offender status had also prevented him

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from receiving a two-level reduction under Amendment 782 to the Sentencing Guidelines, which
reduced the penalties for some drug offenses. Id. at 442. We applied that reduction as well,
which left Powell with a final offense level of 26 and a Guidelines range of 120 to 150 months.
See U.S.S.G. § 5A. Thus (by our calculations at least) the district court’s error had caused
Powell to receive an above-Guidelines sentence, which meant the error was not harmless. We
therefore vacated Powell’s sentence and remanded the case “to allow the district court to
resentence Powell according to the proper Guidelines calculations.” Powell, 798 F.3d at 442.
Back in the district court, it eventually became clear that our calculation of Powell’s
Guidelines range was wrong. Although Powell was in fact sentenced according to a Guidelines
range that was too high—because he was not a career offender—our calculation had two
mistakes of its own. One found its origin in the presentence report: Powell’s adjusted-offense
level without the career-offender enhancement was 32, not 33 as stated in the report and as we
assumed in the last appeal. The other mistake was fully our own: Powell was not in fact entitled
to a two-level reduction under Amendment 782, because the base-offense level for his gun
conviction was much higher than the level for his drug conviction. See generally U.S.S.G.
§ 3D1.3(a). The net effect was that Powell’s base-offense level was one level higher than we
thought, i.e., 27 rather than 26. On remand the district court and the government figured out as
much. The court recalculated Powell’s range as 130 to 162 months and sentenced him again to
155 months. This appeal followed.
In this appeal (as on remand in the district court), Powell does not challenge the accuracy
of the district court’s recalculation of his Guidelines range. Instead, Powell argues that our
remand after the last appeal was limited rather than general, and that the district court exceeded

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the scope of that remand when the court recalculated his range. We review de novo whether the
remand was general or limited. United States v. McFalls, 675 F.3d 599, 604 (6th Cir. 2012).
A general remand allows the district court to “redo the entire sentencing process.” Id. A
limited remand, in contrast, “constrains the district court’s authority to the issue or issues” we
instructed the court to address. Id. Unless otherwise specified, we presume that a remand was
general. United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003). A remand is limited only if
we “explicitly outline” the issues to be addressed by the district court and the manner in which
the court must address them. McFalls, 675 F.3d at 604.
Here, our opinion simply remanded the case “for resentencing consistent with this
opinion.” Powell, 788 F.3d at 442. That language, we have already held, effects a general
remand. United States v. Obi, 542 F.3d 148, 154 (6th Cir. 2008). Nor, contrary to Powell’s
argument here, did our (incorrect) calculation of his Guidelines range render our remand limited.
We calculated Powell’s range not to confine the proceedings on remand, but to determine
whether the district court’s mistake in the original sentencing—namely, its determination that
Powell was a career offender—was harmless. Our calculation was accurate enough to show it
was not.
Powell separately argues that our calculation of the Guidelines range was the law of the
case, which bound the district court on remand. But a general remand “effectively wipes the
slate clean” and “gives the district court authority to redo the entire sentencing process.”
McFalls, 675 F.3d at 606 (citations omitted). Hence this argument too is without merit.
Powell’s remaining argument is different in kind: that his sentence on remand (again,
155 months) was procedurally unreasonable because the court did not offer any reasoning in
support of it. See United States v. Brinley, 684 F.3d 629, 633 (6th Cir. 2012). Powell did not

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make this objection during his sentencing hearing on remand, so we review for plain error.
United States v. Taylor, 800 F.3d 701, 714 (6th Cir. 2015).
“When a defendant raises a particular, nonfrivolous argument in seeking a lower
sentence, the record must reflect both that the district [court] considered the defendant’s
argument and that the [court] explained the basis for rejecting it.” United States v. Wallace,
597 F.3d 794, 803 (6th Cir. 2010) (citation omitted). Here, on remand, Powell argued that a
sentence at the bottom of the Guidelines range was appropriate because the majority of his prior
crimes were misdemeanors. See 18 U.S.C. § 3553(a)(1). The district court did not acknowledge
this argument, and then sentenced Powell to 155 months, which was near the top of his
Guidelines range.

True, as the government points out, the district court incorporated by

reference its comments during the first sentencing hearing. But the court made those comments
while imposing a sentence at the low end of Powell’s Guidelines range, not the high end. Those
comments therefore do not explain the court’s decision to impose a sentence near the high end.
Powell’s sentence on remand “was therefore procedurally unreasonable, even under plain error
review.” See Wallace, 597 F.3d at 808.
We vacate Powell’s sentence and remand the case for resentencing consistent with this
opinion.

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