USCA11 Case: 21-11708 Date Filed: 05/19/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11708
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN D. CARSWELL,
a.k.a. K9,
a.k.a. Knineso Harlem Carswell,
a.k.a. 9ne Oharlem,
a.k.a. Kninepunkin,
a.k.a. Kingcarswell,
Defendant-Appellant.
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2 Opinion of the Court 21-11708
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:20-cr-00009-TES-CHW-1
____________________
Before WILSON, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Kelvin Carswell appeals his 240-month sentence for
conspiracy to possess with intent to distribute methamphetamine.
He argues that the district court plainly erred and imposed a
procedurally unreasonable sentence when the district court failed
to establish the guidelines range before considering and denying
the government’s substantial-assistance motion pursuant to
U.S.S.G. § 5K1.1. We conclude there was no plain error, and we
affirm.
I. Background
Carswell was charged in a superseding information with
one count of conspiracy to possess with intent to distribute
methamphetamine in violation of
21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(C). He pleaded guilty, pursuant to a plea agreement. The
stipulation of facts in the plea agreement provided that Carswell,
while incarcerated in the Georgia Department of Corrections for
an attempted carjacking conviction, orchestrated narcotics
trafficking of methamphetamine, heroin, and crack cocaine,
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21-11708 Opinion of the Court 3
throughout Macon, Georgia, via the use of cell phones and
Facebook. Carswell’s presentence investigation report (“PSI”)
indicated that he had a lengthy criminal history involving
primarily other drug offenses. His guidelines range was the
statutory maximum of 240 months’ imprisonment.1 Carswell did
not object to the PSI.
Prior to sentencing, the government filed a substantial-
assistance motion, pursuant to U.S.S.G. § 5K1.1, based on
Carswell’s cooperation. At sentencing, the district court
confirmed that the parties had no objections to the PSI and that
they agreed that Carswell’s offense level was 43 with a criminal
history category of VI. The government stated that, although
Carswell ran a drug ring from prison, he “c[a]me to the table,
[and] did kind of lay things out . . . . In particular, [he] helped kind
of put a drug amount on certain defendants.” Accordingly, the
government asked the district court “to fashion a sentence [the
court thought] appropriate based upon the facts and
circumstances of the case, along with his cooperation in the
matter.” Carswell’s counsel argued that Carswell’s “cooperation
came early” and resulted in multiple guilty pleas from others
involved with the drug ring, which saved the government a lot of
1
Carswell’s base offense level of 43 and his criminal history category of VI,
resulted in a guidelines range of life. However, where, as here, “the
statutorily authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maximum sentence
shall be the guideline sentence.” U.S.S.G. §§ 5G1.1(a), 5G1.2(b) cmt. (n.3(B)).
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4 Opinion of the Court 21-11708
time and expense. He requested that the district court depart
downward to 180 months’ imprisonment based on substantial
assistance. Carswell stated that he accepted responsibility and
asked the court to “go with what [his counsel] recommend[ed].”
The district court then explained,
Having considered the government’s motion for a
sentence reduction for substantial assistance
pursuant to U.S.S.G. [§] 5K1.1 and 18 U.S.C.
[§] 3553(e), the [c]ourt finds that you do need to get
credit for your cooperation.
But at the same time, but for that, I would have
varied this case upward because of your long
detailed history and your crimes. And the very fact,
the specific facts that you ran a drug ring from
prison. So I think an upward variance is appropriate
in this case. And I think basically [the substantial-
assistance motion and the variance] wash. They
wipe each other out.
Accordingly, the district court sentenced Carswell to 240 months’
imprisonment. The government asked for clarification as to
“where [the court] was starting with the 5K just so we have a
record of where he was with the 5K and then how we ended up
back” at the statutory maximum. The district court stated it
“would have given him a 30 months down to 210 [months’
imprisonment]” and then “varied upward by 30 months.” The
district court then clarified “[b]ut I’m not making a downward
departure and I’m not making an upward variance. I’m just
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21-11708 Opinion of the Court 5
simply saying that I considered the factors. Yes, those are
appropriate for a 5K.” Carswell did not object to the sentence.
He now appeals.
II. Discussion
Carswell argues that the district court plainly erred when it
considered the substantial-assistance motion without first
establishing the guidelines range as required by the directive of
U.S.S.G. § 1B1.1, and that this error resulted in a procedurally
unreasonable sentence. He also argues that the district court
“denied Mr. Carswell the benefit he was entitled to receive for his
cooperation” because the court could not have varied upward as
the statutory maximum was 240 months’ imprisonment.
As an initial matter, “a district court’s refusal to apply a
downward departure is within the court’s discretion and may not
be appealed, provided the court recognized that it had the power
to so depart from the guideline range. Substantial-assistance
departures under § 5K1.1 fall under this category.” United States
v. Willis,
649 F.3d 1248, 1258–59 (11th Cir. 2011) (internal citation
omitted). Thus, we lack jurisdiction to review the refusal to grant
a § 5K1.1 motion, “[b]ut where, as here, a ruling on a § 5K1.1
motion is challenged on the ground[] that the court misapplied
the guideline[s], we [generally] review the ruling de novo.”
United States v. Luiz,
102 F.3d 466, 468 (11th Cir. 1996).
However, because Carswell did not raise this argument below,
we review only for plain error. United States v. Vandergrift, 754
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11708
F.3d 1303, 1307 (11th Cir. 2014). 2 To establish plain error,
Carswell must show “(1) that the district court erred; (2) that the
error was plain; and (3) that the error affected his substantial
rights. If all three conditions are met, we then decide whether the
error seriously affected the fairness, integrity, or public reputation
of judicial proceedings.”
Id. (alterations adopted) (quotations and
internal citations omitted).
U.S.S.G. § 1B1.1 directs a district court to first determine
the defendant’s guidelines range before it considers any departure
under Chapter 5 of the guidelines. See U.S.S.G. § 1B1.1(a)–(b).
Contrary to Carswell’s argument on appeal, the record establishes
that the district court determined the guidelines range at the start
of the sentencing hearing before it considered the § 5K1.1 motion.
Specifically, the district court confirmed that the parties had no
objections to the PSI and that they agreed that Carswell’s offense
level was 43 with a criminal history category of VI, which resulted
in a guidelines range of the statutory maximum. The district
court then heard arguments from the parties concerning the
§ 5K1.1 motion and concluded that the § 5K1.1 motion and the
2
In Holguin-Hernandez v. United States,
140 S. Ct. 762, 766–67 (2020), the
Supreme Court held that where a defendant advocates for a particular
sentence in the district court, he preserves a challenge to the substantive
reasonableness of his sentence. However, the Supreme Court expressly
declined to address what is sufficient to preserve a procedural challenge.
Id.
at 767. Therefore, we continue to apply plain error review to unpreserved
procedural challenges.
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21-11708 Opinion of the Court 7
district court’s decision that an upward variance would be
appropriate cancelled one another out. Accordingly, the district
court complied with the directive of U.S.S.G. § 1B1.1 and there
was no error.
Carswell’s remaining arguments that he was denied the
benefit of his cooperation go to the district court’s refusal to grant
the substantial-assistance motion and are not reviewable. Willis,
649 F.3d at 1258–59. Accordingly, we affirm.
AFFIRMED.
