United States v. Scott Kollar , 336 F. App'x 497 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0474n.06
No. 07-4405
FILED
UNITED STATES COURT OF APPEALS Jul 09, 2009
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
SCOTT KOLLAR, ) OHIO
)
Defendant-Appellant. )
Before: GILMAN and McKEAGUE, Circuit Judges; BARRETT, District Judge.*
BARRETT, District Judge. Scott Kollar (“Kollar”) appeals the district court’s judgment
sentencing him to a below-guidelines sentence of 169 months’ imprisonment following his guilty
plea and conviction of conspiracy to possess with the intent to distribute 500 grams or more of
cocaine in violation of 21 U.S.C. §§ 841 and 846. Kollar argues that the district court erred when
it refused to disregard Kollar’s career offender status, when it denied his request for a two-point
downward departure in offense level for his minor role in the drug conspiracy, and when it denied
his request for a one-level downward departure in criminal history because category VI substantially
over-represented the seriousness of his criminal history. In addition, Kollar argues that his sentence
is unreasonable. For the reasons that follow, we affirm.
*
The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 07-4405
United States of America v. Kollar
I.
Beginning in July 2006, Cleveland Police became aware, from a confidential source, that
Henry Hernandez was involved in heavy cocaine trafficking. Hernandez was the appellant’s co-
defendant. In October 2006, Cleveland Police learned that Kollar was one of Hernandez’s associates
that assisted him with his drug trafficking.
Hernandez arranged a cocaine deal with the confidential source, which took place on or about
March 8, 2007. Kollar and Hernandez met the confidential source, who gave Hernandez $900 for
cocaine that was to be delivered later. The next day, Kollar delivered the cocaine to the confidential
source, who then gave it to an undercover law enforcement agent named “Bobby” who had
accompanied him. Kollar then informed Bobby that he could deal with him directly for future
transactions and offered a price of $875 per ounce of cocaine. Kollar then provided Bobby with his
phone number. A few days later, Bobby contacted Kollar to arrange another sale. Bobby met Kollar
at Kollar’s apartment, where Kollar provided 40 grams of cocaine to Bobby in return for $1,320.
Law enforcement then executed a search warrant for Kollar’s apartment, apartment #7.
Kollar was not present. However, the occupants told the officers that Kollar was in another
apartment in the same building. Law enforcement began surveillance outside the other apartments
in the building and observed Hernandez leaving apartment #8. Kollar was observed inside that same
apartment. When a search warrant was later executed on apartment #8, a hydraulic press used to
repackage cocaine was seen in plain view. Approximately 470 grams of cocaine, the hydraulic
press, and items used for cutting cocaine were seized. Kollar admitted that he and Hernandez would
open the packages of cocaine, add a cutting agent to the cocaine, and repackage it for distribution.
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However, Kollar was not in possession of any of the marked money used by Bobby to purchase the
cocaine. Most of that money was found in Hernandez’s possession.
On April 11, 2007, a federal grand jury in the Northern District of Ohio returned an
indictment charging Scott Kollar and a co-defendant, Henry Hernandez, with conspiracy to possess
with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), 21
U.S.C. § 841 (b)(1)(B), and 21 U.S.C. § 846 (Count 1), as well as possessing with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(c) (Count 4). Kollar was
also charged with two counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(c) (Counts 2 and 3).
On June 8, 2007, the government filed an information, under 21 U.S.C. § 851, notifying
Kollar of its intent to rely on a prior conviction to enhance the applicable penalty provisions under
21 U.S.C. § 841(b). On June 11, 2007, Kollar pleaded guilty to Count 1 of the indictment, pursuant
to a written plea agreement with the government containing a limited appeal waiver, in exchange for
a dismissal of the other three counts. Kollar signed the plea agreement containing the above factual
basis and an appellate waiver provision. During the plea colloquy, Kollar confirmed that he signed
the agreement and initialed each page. The waiver provision of the plea agreement did not
specifically preserve Kollar’s right to challenge the district court’s determination about Kollar’s
career offender status and a minor role in the offense reduction; however, at the change of plea
hearing, the parties agreed that Kollar could appeal those issues. The plea agreement was modified
to reflect this agreement. During the plea colloquy, Kollar knowingly and voluntarily waived his
appellate rights except the right to appeal: (a) a sentence above the statutory maximum or in excess
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of the maximum sentencing range under the Guidelines, or (b) the court’s determination about
Kollar’s career offender status, minor role in the offense reduction, prosecutorial misconduct or
ineffective assistance of counsel. The district court accepted Kollar’s plea and found him guilty on
count one.
On October 1, 2007, Kollar was sentenced to 169 months’ imprisonment, followed by five
years of supervised release and ordered to pay a $100 special assessment. Pursuant to the
government’s recommendation, the court also dismissed the remaining counts against Kollar. The
district court issued its judgment on October 17, 2007. This appeal followed.
II.
Career Offender Status
“In reviewing a district court’s application of the Sentencing Guidelines, this Court will
‘accept the findings of fact of the district court unless they are clearly erroneous and [will] give due
deference to the district court’s application of the Guidelines to the facts.’” United States v. Moon,
513 F.3d 527, 539-40 (6th Cir.), cert. denied, 128 S. Ct. 2493 (2008) (quoting United States v.
Williams, 355 F.3d 893, 897-98 (6th Cir. 2003)); 18 U.S.C. § 3742(e). “A factual finding is clearly
erroneous ‘when the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’” Moon, 513 F.3d at 539-40 (quoting Tran v.
Gonzales, 447 F.3d 937, 943 (6th Cir. 2006)). This Court reviews the legal conclusions regarding
the Sentencing Guidelines de novo. Id.Here, there are no factual findings in dispute. Kollar admitted to the facts in his plea
agreement, and it was from those facts that the district court based its sentencing decision. However,
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United States of America v. Kollar
Kollar argues that the district court erred when it “relied on case law that was subsequently
overturned when it held that it was legally required to increase the appellant’s sentence due to his
career offender designation.” Kollar asserts that the district court was referring to U.S. v. Funk, 477
F.3d 421, 430 (2007) (“Funk I”) which held that “a district court making sentencing determinations
may not implicitly reject Congress’ policy decision to prescribe harsher penalties for career offenders
by ignoring or outright rejecting a defendant’s status as a career criminal offender.”
Funk I was remanded by Funk v. United States, ___ U.S. ___, 128 S. Ct. 861 (2008), without
opinion, in light of Gall v. United States, 552 U.S. 38 (2007). On remand, this Court considered
Gall, as well as Kimbrough v. United States, 552 U.S. 85 (2007), and Rita v. United States, 551 U.S.
338 (2007), and found that the sentence given to Funk was unreasonable due to the district court
imposing its own policy determination regarding marijuana convictions over that of Congress and
the Guidelines and because the district court failed to adequately justify the variance. United States
v. Funk, 534 F.3d 522 (6th Cir. 2008) (“Funk II”). However, the opinion of the panel was vacated
pursuant to this Court’s order granting en banc review. The government then moved to dismiss the
appeal, to which Funk did not object. This Court granted the motion to dismiss and held that the
panel opinion (Funk II) remained vacated. See United States v. Funk, 560 F.3d 619 (2009).
Irrespective of Funk I and Funk II, the district court did not err in sentencing Kollar. The district
court properly considered the Guidelines and therefore, did not commit a significant procedural error.
Kollar moved for a variance down to the mandatory minimum of 120 months, asking the
district court to disregard his career offender status. A defendant is a career offender if: (1) he was
at least eighteen years old at the time he committed the instant offense; (2) the instant offense is a
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United States of America v. Kollar
felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has
at least two prior felony convictions for either a violent crime or a controlled substance offense.
U.S.S.G. § 4B1.1. There is no dispute in this matter that Kollar is a career offender.
The reasoning behind Kollar’s request for a variance was so that Kollar’s sentence would be
more aligned with that of his co-defendant’s. Hernandez, who was not a career offender, received
a sentence of 63 months. In response, the district judge stated “[y]ou understand by doing that I
would not be giving any effect whatsoever to the career offender designation, and there is recent case
law that says that that’s not something the Court may do, that I can’t just ignore [ ] a career offender
designation.” (ROA, Tr. Vol. 6, 15).
A district court is required to properly calculate the Guidelines range. As the Supreme Court
explained in Gall, the Guidelines are “the starting point and the initial benchmark for federal
sentencing.” United States v. Thompson, 515 F.3d 556, 561 (6th Cir. 2008); Gall, 128 S. Ct. at 596.
The district court is also to consider the 18 U.S.C. § 3553(a) factors. The § 3553(a) factors include:
(1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of
sentencing, namely, (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d)
rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing
Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for
restitution. Rita, 551 U.S. at 347-348. “The sentencing judge is to ‘impose a sentence sufficient,
but not greater than necessary, to comply with’ the basic aims of sentencing as set out above.” Id.In determining the sentence, the district court stated that “the reason there is such a disparity
[between Kollar’s Guidelines range and Hernandez’s sentence] is because, two things, [Kollar] is
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a natural six, and if there were a higher category, he would probably be a seven or an eight, because
he’s got 18 criminal history points, and 13 starts at a six, he’s actually aided by the fact we don’t go
above six; and he’s a career offender ....” (ROA, Tr. Vol. 6, 17). The district court continued, “[s]o
Mr. Hernandez was a category four and was not a career offender. [Kollar] is a natural six, and is a
career offender. And the guidelines I think correctly require me to consider all of that.” (Id.). In fact,
Kollar may have had “up to five predicate offenses,” given his prior convictions for (1) robbery; (2)
aggravated robbery with firearms specification; (3) trafficking in cocaine; (4) unlawful sexual
contact; and (5) intimidation and assault. (Id. at 17-18). Finally, the district court considered the
Guidelines range for a career offender with a criminal history category of six, which is 210 to 262
months,1 and stated the following:
I’ve looked at Mr. Kollar’s criminal history. Although he has 18 criminal history
points, he has not served a sentence greater than three years. I’m also considering
that Mr. Hernandez, who’s responsibility, criminal involvement, was greater than Mr.
Kollar, got a sentence of 63 months. I have to give some effect to the fact that Mr.
Kollar is a criminal history category six and he’s career offender, but a sentence of
210 to 262 months I think is substantially greater than necessary to meet the statutory
purposes of sentencing and would be unfairly harsh.
So what I’m going to do, and I think it is the fairest and most appropriate sentence,
is to pick a sentence that is between the advisory range for career offender, 210 to
262, and the 120 to 150, which would be the range without the career offender. And
that would be a level 29, criminal history category six, which is 151 to 188, and give
Mr. Kollar midpoint of that, which is 169 months. That is still approximately four
years above the mandatory minimum and that certainly gives effect and impact to the
1
Initially, Kollar started at an offense level of 37. He was given a two level reduction for
acceptance of responsibility and a third level off for a timely guilty plea taking him to a 34 with a
category six, which is a range of 262 to 327 months. (ROA Tr. Vol. 7-8). Kollar was then given
another two level reduction to 32 based upon the filing of a § 5K1.1 motion, which reduced the range
to 210 to 262 months. (Id. at 8-9).
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career offender designation. But I believe if 169 months is not sufficient to protect
the community, deter Mr. Kollar from future conduct, I don’t know that another three
or four years will accomplish anything more.
(ROA, Tr. Vol. 6, 24).
It is clear that the district court did not treat the Guidelines as mandatory and that the district
court only considered the Guidelines and Kollar’s career offender status as one of the 18 U.S.C. §
3553(a) factors. Here, the district court correctly stated that “the Sentencing Guidelines are only
advisory, however, I must consult them, first compute the advisory range correctly and then consult
the Guidelines and consider all of the circumstances of this particular defendant, the nature of the
conduct, and then impose a sentence which is sufficient but not greater than necessary to meet the
statutory purposes of sentencing.” (ROA, Tr. Vol 6, 23).
Thus, the district court did not err and the sentencing decision is procedurally sound.
Two-level minor role adjustment
“Whether a defendant is entitled to a downward offense-level adjustment under U.S.S.G. §
3B1.2 ‘depends heavily on factual determinations, which we review only for clear error.’” United
States v. Bailey, 488 F.3d 363 (6th Cir. 2007)(quoting United States v. Harris, 397 F.3d 404, 409 (6th
Cir. 2005)). “The defendant has the burden of proving by a preponderance of the evidence that he
is entitled to the reduction.” Id. at 369 (citing United States v. Salgado, 250 F.3d 438, 458 (6th Cir.),
cert. denied, 534 U.S. 916 (2001)).
Kollar requested a two level minor role reduction in the offense level under U.S.S.G. § 3B1.2
of the Guidelines based upon his role in the conspiracy being less than that of his co-defendant,
Hernandez. In response, the district court found that “while Mr. Kollar’s role may have been less
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than Mr. Hernandez, it’s not so much less that a role in the offense reduction is appropriate. It
wasn’t recommended by the probation department. It’s opposed by the government. So I’m not
going to apply it.” (ROA, Tr. Vol. 6, 23). U.S.S.G. § 3B1.2(b) provides that if a defendant was a
minor participant in any criminal activity, his offense level may be decreased by two levels. A minor
participant is defined as one who is “substantially less culpable than the average participant” and
“less culpable than most other participants.” U.S.S.G § 3B1.2 commentary, applic. notes 3 and 5;
United States v. Owusu, 199 F.3d 329, 337 (6th Cir. 2000). “A defendant who plays a lesser role in
a criminal scheme may nonetheless fail to qualify as a minor participant if his role was indispensable
or critical to the success of the scheme, or if his importance in the overall scheme was such as to
justify his sentence.” United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001).
Here, Kollar admitted to delivering cocaine to the confidential source who then gave it to
“Bobby,” the undercover agent. Kollar then arranged a subsequent buy with Bobby. He delivered
cocaine to Bobby and accepted payment from Bobby for the cocaine. He also admitted to assisting
Hernandez in adding a cutting agent to the cocaine and repackaging it, which took place in the
apartment building where Kollar was living. Although the district court found that Kollar may be
less culpable than Hernandez, the leader of the conspiracy, we are unable to ascertain the culpability
of “most other participants” or “an average participant” since there are only two defendants in this
case. See United States v. Lopez, 545 F.3d 515, 517 (7th Cir. 2008)(“in situations where criminal
activity involves only two participants (and thus it is impossible to ascertain the culpability of an
‘average’ participant), the key inquiry is the degree of the defendant’s culpability relative to the other
participant’s and the scope of the criminal enterprise.”). Therefore, even though Kollar may be less
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culpable than Hernandez, his role was indispensable because he aided in the cutting and repackaging
of the cocaine as well as arranging and carrying out drug deals. In addition, there is evidence in the
record to show that Hernandez had many “associates”; however, Kollar failed to show that these
“other associates” were involved to the same or a greater degree than he was. Thus, the district
court did not err in refusing to grant Kollar’s requested reduction. See United States v. Bartholomew,
310 F.3d 912, 925 (6th Cir. 2002) (denying a minor role reduction where the defendant’s residence
was used as a base of operations, he participated in drug transactions, stored a shotgun, and
personally received at least one shipment of marijuana).
One-level Downward Departure2
“This court generally does ‘not review a district court’s decision not to depart downward
unless the record shows that the district court was unaware of, or did not understand, its discretion
to make such a departure.’” United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009) (quoting
United States v. Santillana, 540 F.3d 428, 431 (6th Cir.), cert. denied, 129 S. Ct. 469 (2008)); see
also United States v. Puckett, 422 F.3d 340, 344 (6th Cir. 2005), cert. denied, 547 U.S. 1122 (2006);
United States v. Madden, 515 F.3d 601 (6th Cir. 2008).
Kollar asked the district judge for a downward departure of his criminal history computation
under U.S.S.G. § 4A1.3(b)(1) because it allegedly over-represented the seriousness of his criminal
history. U.S.S.G. § 4A1.3(b)(1) provides that a downward departure may be granted “[i]f reliable
2
As to this issue, Kollar references, in his brief, that the trial court abused its discretion by
denying appellant a downward departure of one criminal history level due to his troubled upbringing
but he does not raise any arguments or set forth any facts to support it.
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information indicates that the defendant’s criminal history category substantially over-represents the
seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other
crimes.” U.S.S.G. § 4A1.3(b)(1). However, the record fails to show that the district court was
unaware of, or did not understand, its discretion to make such a departure. In fact, the opposite is
true since the district court fully considered Kollar’s criminal history and then granted a substantial
assistance departure and granted a substantial variance below the recommended Guidelines range.
Unreasonable Sentence under 18 U.S.C. § 3553Kollar has waived his right to appeal this issue as it was not one of the limited appealable
issues set forth in his plea agreement. “Criminal defendants may waive their right to appeal as part
of a plea agreement so long as the waiver is made knowingly and voluntarily.” United States v.
Swanberg, 370 F.3d 622, 625 (6th Cir. 2004) (citing United States v. Fleming, 239 F.3d 761, 763-64
(6th Cir. 2001)). We review this type of waiver de novo. Id. at 626.
The plea agreement stated the following:
Defendant acknowledges having been advised by counsel of Defendant’s rights, in
limited circumstances, to appeal the conviction or sentence in this case, including the
appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or
sentence collaterally through a post-conviction proceeding, including a proceeding
under 28 U.S.C. § 2255. The Defendant expressly waives those rights, except as
reserved below. Defendant reserves the right to appeal: (a) any punishment in excess
of the statutory maximum; (b) any sentence to the extent it exceeds the maximum of
the sentencing range determined under the advisory Sentencing Guidelines in
accordance with the sentencing stipulations and computations in this agreement,
using the Criminal History Category found applicable by the Court. Nothing in this
paragraph shall act as a bar to the Defendant perfecting any legal remedies Defendant
may otherwise have on appeal or collateral attack respecting claims of ineffective
assistance of counsel or prosecutorial misconduct.
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At the change of plea hearing, the parties agreed that Kollar could appeal the career offender
designation and the minor role reduction issue. The parties modified the plea agreement by striking
the two provisions stating that Kollar could not appeal those issues. During the plea colloquy, Kollar
confirmed that he signed the agreement and initialed each page. He also confirmed that he was
giving up his right to appeal except as to the issue of career offender and/or role in the offense.
Kollar answered in the negative when asked if anyone was threatening or pressuring him. Thus,
Kollar knowingly and voluntarily waived his appellate rights except those set forth above. The issue
of the reasonableness of his sentence was not one that Kollar preserved for appeal. Thus, this issue
is waived.
III.
The judgment of the district court is affirmed.
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