United States v. Powell , 303 F. App'x 138 ( 2008 )

Filed: December 22, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4812
(5:06-cr-00299-FL)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE EUGENE POWELL, JR.,
Defendant - Appellant.
O R D E R
The court amends its opinion filed December 16, 2008, as
follows:
On page 4, the footnote number is changed from “*” to “1,” and
the citation in that footnote, line 4, is corrected to read “466
F.3d.”
On page 8, footnote 2 is added.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4812
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEORGE EUGENE POWELL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:06-cr-00299-FL)
Argued: October 30, 2008 Decided: December 16, 2008
Before WILKINSON, Circuit Judge, Samuel G. WILSON, United States
District Judge for the Western District of Virginia, sitting by
designation, and Henry E. HUDSON, United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James B. Craven, III, Durham, North Carolina, for
Appellant. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
George E. B. Holding, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case presents the narrow question of whether the U.S.
Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) permit a
sentencing court to award a third-level reduction for acceptance
of responsibility when a defendant’s offense level qualifies for
such reduction only after an upward departure. Although this
appears to be the first time this issue has been formally
addressed by a reviewing court, we are of the opinion that
Section 1B1.1 of the Guidelines clearly delineates the
methodology for computing a defendant’s advisory guidelines, and
specifies that eligibility for a third-level reduction for
acceptance of responsibility turns on whether a defendant’s
offense level exceeds 16 prior to departure or variance.
Pursuant to a written plea agreement, George Eugene Powell,
Jr. (“Powell”) entered a plea of guilty to a single count of
bank larceny. The underlying plea agreement specifically
provided that a three-level sentencing reduction was warranted
pursuant to U.S.S.G. Manual Section 3E1.1 for acceptance of
responsibility. Following acceptance of Powell’s plea, a U.S.
Probation Officer prepared a pre-sentence investigation report.
Relying on U.S.S.G. § 2B1.1(a)(2), pertaining to burglaries of
nonresidential structures, the probation officer calculated
Powell’s base offense level at 12. Despite the language of the
plea agreement, Powell received only a two-level reduction for
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acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a),
because his base offense level was less than 16. The resulting
total offense level was 10. Powell’s criminal history category
was VI, which yielded a guidelines range of 24 to 30 months of
imprisonment.
Based on Powell’s numerous uncounted prior convictions,
some of a similar nature to the charge of conviction, and
contending that Powell’s criminal history category inadequately
represented his criminal history and likelihood that he would
commit other crimes, the government moved for an upward
departure. Powell opposed the motion.
At the sentencing hearing, the court adopted the probation
officer’s calculation of Powell’s guidelines, finding a base
offense level of 12, with a two-point reduction for acceptance
of responsibility, and a total offense level of 10. Powell
offered no objection to the court’s preliminary findings.
The court next considered the government’s motion for an
upward departure, and ultimately departed upward by eight
offense levels to a final offense level of 18. This resulted in
a guidelines range of 57 to 71 months of imprisonment. The
court imposed a 71-month sentence. Powell does not challenge
the upward departure on appeal.
Following the upward departure, Powell urged the court to
revisit his entitlement to an additional reduction in his
3
offense level for acceptance of responsibility pursuant to the
plea agreement. The government, however, declined the court’s
invitation to seek an additional level for acceptance of
responsibility. The government articulated two grounds for
opposing a third-level reduction. First, under the methodology
set forth in the Guidelines, the calculation of acceptance of
responsibility precedes the court’s consideration of any
departure motions. And second, the additional reduction was not
appropriate under the facts of this case. 1
Powell’s counsel stressed to the court that the plea
agreement clearly contemplated a third-level reduction.
Following the government’s refusal to move for such reduction,
the court imposed a 71-month sentence without further comment.
At no time did Powell seek specific enforcement of the plea
agreement or request leave of court to withdraw his plea of
guilty. This appeal followed.
Powell frames the issue on appeal as a single issue:
“[w]as the District Court in error in not allowing an additional
one level reduction for acceptance of responsibility under
1
Although neither side raised the issue, we note that a
third-level adjustment for acceptance of responsibility can only
be granted upon formal motion by the government at the time of
sentencing. United States v. Chase, 466 F.3d 310, 315 (4th Cir.
2006).
4
Section 3E1.1(b), Federal Sentencing Guidelines?” Candidly
conceding an absence of authority supporting his position,
Powell argues that the district court erred in failing to award
his requested third-level reduction for acceptance of
responsibility following the upward departure. He contends that
even though his initially calculated adjusted offense level was
less than 16, his total offense level exceeded 16 following the
upward departure. At that point, in his view, the court should
have reduced his offense level by a third point for acceptance
of responsibility, as dictated by the plea agreement. The
methodology urged by Powell is contrary to the Guidelines and
all interpretive cases.
Section 1B1.1 of the Guidelines specifically directs the
order in which its provisions are to be applied. Application of
the appropriate adjustment for acceptance of responsibility
occurs prior to any consideration of departures. U.S.S.G. §
1B1.1(e)(i). Under the prescribed order of calculation, the
sentencing guidelines range, including application of offense
level adjustments under U.S.S.G. § 1B1.1(b),(c), and (d), should
be completed before the determination of whether an upward
departure is appropriate. Because Powell’s offense level was
not 16 or more at that juncture, he did not meet the requirement
for a third-level reduction under U.S.S.G. § 3E1.1(b).
5
Powell draws the Court’s attention to an unpublished
decision of this Court, United States v. Schellenberger, 246
Fed. Appx. 830 (4th Cir. 2007). Powell’s reliance on
Schellenberger, however, is misplaced. The court in
Schellenberger did not address the sequence of guidelines
calculations. Powell simply points out the computational
process employed by the sentencing court in Schellenberger. “A
presentence investigation report (“PSR”) established
Schellenberger’s base offense level at 17, and added 29 levels
to account for various sentencing factors. Three points were
then subtracted for acceptance of responsibility. This yielded
a total offense level of 43.” Id. at 832. The trial court in
Schellenberger appropriately enhanced the defendant’s base
offense level for specific offense characteristics outlined in
Chapter 2 of the Guidelines and adjustments related to victim,
role, and obstruction of justice from parts A, B, and C of
Chapter 3, before deducting three levels for acceptance of
responsibility. This faithfully tracks the general application
principles delineated in § 1B1.1 of the Guidelines. The product
of the trial court’s calculation in Schellenberger is
appropriately referred to as an adjusted offense level, which
precedes any determination of whether a departure is warranted.
This Court has repeatedly counseled trial courts in
sentencing a defendant to first properly calculate the
6
sentencing range recommended by the Guidelines, next to
determine whether an upward or downward departure is
appropriate, and lastly, to decide whether a sentence within
that range, and within statutory limits, serves the factors set
forth in 18 U.S.C. § 3553(a). See United States v. Moreland,
437 F.3d 424, 432 (4th Cir. 2006). That procedure was
meticulously followed by the trial court in the immediate case
at hand.
Although he neither framed it as a separate issue for
appeal nor raised it in the district court, Powell argues that
the government breached the plea agreement by failing to move
for the additional level of reduction for acceptance of
responsibility. On close examination, the plea agreement does
not obligate the government to move for a three-level reduction
for acceptance of responsibility. The plea agreement stated
that “[a] downward adjustment of 3 levels for acceptance of
responsibility is warranted under U.S.S.G. §3E1.1.” (J.A., at
20.) Agreement notwithstanding, the court was powerless to
award the third level under U.S.S.G. § 3E1.1(b) when the base
offense level was 12. Therefore, even if the United States had
moved for a third-level reduction, the trial court lacked the
power to grant the request. Consequently, this element of the
plea agreement was unenforceable. In any event, Powell did not
seek in the district court, and does not seek here, to withdraw
7
his guilty plea, but instead requests that we vacate the
judgment and remand to the district court for resentencing “with
an applicable advisory Guideline range of 51–63 months.” We are
not at liberty to direct the district court to sentence within
an inapplicable guideline range. 2
Finding no error in calculating the sentencing guidelines,
the district court’s judgment is, therefore,
AFFIRMED.
2
Even if we were to determine that Powell has properly
raised the issue that the government breached its plea agreement
by declining to move the district court for an additional
reduction for acceptance of responsibility, our review would be
for plain error because he failed to raise this issue in the
district court. United States v. McQueen, 108 F.3d 64, 65-66
(4th Cir. 1997).
8