United States v. Russell Polson ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0592n.06
No. 08-2270
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, Aug 21, 2009
LEONARD GREEN, Clerk
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
RUSSELL POLSON, WESTERN DISTRICT OF MICHIGAN
Defendant-Appellant.
/
BEFORE: KEITH, CLAY, and GIBBONS, Circuit Judges.
CLAY, Circuit Judge. Defendant-Appellant Russell Polson (“Polson”) appeals his sentence
of 120 months of imprisonment, imposed after he pled guilty to one count of possessing fifty grams
of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841. On appeal, Polson
contends that the district court erred in denying his request for a safety valve benefit, or alternatively,
failed to provide an adequate explanation for denying the benefit. For the following reasons, we
VACATE Polson’s sentence as procedurally unreasonable and REMAND for re-sentencing.
BACKGROUND
According to Polson’s Presentence Investigation Report (“PSR”), on January 26, 2006, a
confidential informant told agents of the Drug Enforcement Agency (“DEA”) that Polson possessed
a large amount of cocaine and was at the Wax Doctor, a car wash in Grand Rapids, Michigan. The
confidential informant described Polson to the DEA agents and advised that Polson was driving a
No. 08-2270
2000 white Chevrolet Monte Carlo. DEA agents arriving at the car wash spotted the white Monte
Carlo, then observed Polson walking from the car wash to the Monte Carlo carrying a brown paper
bag. Polson drove away, the DEA agents followed him, and when the agents observed Polson
committing a traffic infraction, they initiated a stop. When Polson failed to produce his driver’s
license, the agents arrested him and searched his car. In Polson’s car, the agents found the brown
paper bag. The brown paper bag contained two plastic bags, one containing cocaine base and one
containing powder cocaine. The brown paper bag also contained a dryer sheet and a digital scale in
a box.
The DEA agents transported Polson to the DEA offices in Grand Rapids and read Polson his
Miranda rights, at which point Polson explained to them his possession of the drugs as follows:
[Polson] advised the cocaine in his vehicle belonged to him and was the balance of
an 18-ounce purchase he had made through Kevin Strickland, whom he identified as
a broker. Mr. Polson denied he knew the actual source of the cocaine. He explained
he purchased the original 18 ounces on January 13, 2006. Mr. Polson described how
he was “fronted” the 9 ounces of powder cocaine and purchased the 9 ounces of
cocaine base. He reported he made the entire purchase for $10,500.00, and had since
sold two separate [4.5]-ounce quantities of cocaine for $3,100.00 each and one
additional 2-ounce sale of cocaine for $1,400.00. Mr. Polson reported he paid his
source a total of $5,600.00 and still owed a balance of $4,900.00. . . . Mr. Polson
explained how he purchased cocaine on approximately 15 occasions through Mr.
Strickland and received 9 to 18 ounces of cocaine per occasion. Mr. Polson added
he typically purchased cocaine in rock form as he personally disliked cooking powder
into cocaine base. . . . Mr. Polson reported he had approximately [.5] ounce of
cocaine base at his residence and said his wife was aware of his drug trafficking.
(PSR at 5.)
On February 8, 2006, Polson was indicted on one count of possessing with intent to distribute
fifty grams or more of cocaine base and one count of possession with intent to distribute an
unspecified quantity of powder cocaine, both in violation of 21 U.S.C. § 841. On May 23, 2006,
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No. 08-2270
Polson pled guilty to possessing fifty grams of cocaine base with intent to distribute, and the court
granted the government’s motion to dismiss the powder cocaine possession charge.
Prior to sentencing, while interviewed by the probation officer preparing the PSR, Polson
changed his explanation for possessing the drugs:
[Polson] reported he provided arresting officers and DEA agents a false version of
events. He said he was trying to protect the identity of his suppliers, whom he
identified during the presentence interview as Larry Henton and Wyndell Smith. He
reported Mr. Smith owned the [Wax Doctor car wash]. The defendant stated he had
agreed to deliver the cocaine for Messrs. Henton and Smith previously, and the two
were supposed to leave the substance in his vehicle. He had agreed to retrieve the
vehicle and transport the substance to Martin Luther King Park in Grand Rapids and
leave the vehicle parked so the drugs could be retrieved by another unknown
individual. . . . Mr. Polson added the DEA agents subsequently searched his
residence and located 5 grams of cocaine base. He reported the substance was
payment received two days prior from Messrs. Henton and Smith for delivering the
substance.
(PSR at 6.)
The PSR placed Polson in Criminal History Category I and calculated a total offense level
of 32, for a recommended sentencing range under the United States Sentencing Guidelines (the
“Guidelines”) of 121 to 151 months of imprisonment. The PSR noted that because Polson had been
convicted of several offenses that for various reasons were not included in his criminal history
calculation, “the Court may conclude Mr. Polson’s criminal history is significantly under represented
. . . and, therefore, consider an upward departure from the guidelines.” (PSR at 21.) The PSR also
recommended denying Polson a two- or three-level reduction for acceptance of responsibility, stating
that Polson’s conflicting explanations of how he came to possess the drugs at issue “provide no clear
and convincing sense of what is truthful and what is not.” (PSR at 7.)
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No. 08-2270
Pursuant to 21 U.S.C. § 841(b)(1)(A)(iii), Polson was subject to a ten-year mandatory
minimum sentence, because he pled guilty to possessing fifty grams of a substance containing
cocaine base. The PSR did not recommend Polson for the “safety valve” exception in which,
pursuant to 18 U.S.C. § 3553(f) and § 5C1.2 of the Guidelines, the district court had the authority
to sentence Polson without regard to the ten-year mandatory minimum. Similarly to its
recommended denial of acceptance of responsibility credit, the PSR recommended denying the safety
valve because Polson’s conflicting statements created confusion as to which of his two statements
had been truthful.
In his sentencing memorandum, Polson’s counsel objected to the PSR’s suggestion that
Polson had not accepted responsibility, arguing that regardless of his inconsistent explanations for
how he obtained the drugs, Polson had accepted responsibility for the possession, and did not need
to provide information beyond the conduct charged to receive the acceptance-of-responsibility
reduction. Polson’s counsel also argued that Polson qualified for the safety valve exception set forth
in 18 U.S.C. § 3553(f) and § 5C1.2 of the Guidelines. The government did not submit a sentencing
memorandum in response.
At Polson’s sentencing hearing on September 18, 2006, Polson’s counsel again argued for
acceptance of responsibility, and stated as part of his argument that “[Polson] was nervous at the
time of the initial interview. He had not had an opportunity to be able to consult with counsel.
Following consultation with myself he was able to provide a detailed version, a detailed version, and
we believe that to be truthful, of what took place.” (Sentencing Tr. at 7-8.) The government
acknowledged that Polson’s conflicting statements regarding the source of his drugs did not
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No. 08-2270
disqualify him from credit for acceptance of responsibility, since he admitted the facts relevant to
his charged conduct. The court granted the requested three-level reduction for acceptance of
responsibility, reducing Polson’s total offense level to 29 and his Guidelines range to 87 to 108
months. In granting the reduction, the court’s only explanation for doing so was, “Well, I’m going
to grant you the acceptance of responsibility. . . . I think it’s a very close call.” (Sentencing Tr. at
9.)
The district court then noted the PSR’s suggestion that an upward departure would
compensate for Polson’s previous offenses that were not factored into his criminal history category.
The court listed some of those past offenses, then stated: “And so [the probation officer’s] concern
is does a criminal history category one really accurately represent this or should there be an upward
departure from the guidelines and I’ll turn to the government about that first.” (Sentencing Tr. at
12.) When the government addressed the criminal history issue, it referred to the safety valve
exception, and the district court, rather than hearing from Polson’s counsel regarding Polson’s
criminal history, immediately stated:
I think it’s good to raise the safety valve issue at this point[.] . . . Safety valve has a
bunch of categories and the fifth category, I think, is a real problem in applying your
case. The fifth category is that not later than the time of the sentencing hearing you
truthfully provided to the government all information in evidence that you have
concerning the offense or offenses that were part of the same course of conduct or of
a common scheme or plan. It’s not about whether you have relevant or useful other
information to provide; it’s whether you’ve been truthful and forthright. In my
judgment reading everything in this case you’re not entitled to the safety valve. This
is where it hits you. So we’ll go forward without the safety valve. So although we
give you the benefit of the acceptance of responsibility at this point in the
proceedings you won’t get a reduction in your offense level off the safety valve.
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No. 08-2270
(Sentencing Tr. at 12-13.) The court then sentenced Polson to the mandatory minimum of 120
months of imprisonment, followed by five months of supervised release.
Following its announcement of Polson’s sentence, the district court asked Polson’s counsel
whether there was “[a]nything more for the defendant?” (Sentencing Tr. at 24.) Polson’s counsel
indicated he had nothing further to say, and the hearing concluded. In the court’s judgment filed the
same day as the sentencing hearing, under the section titled “Court Findings on Presentence
Investigation Report,” the court marked the box next to the sentence, “The court adopts the
presentence investigation report without change.” (Judgment at 7.)
On July 23, 2007, Polson filed a pro se motion to vacate or set aside his sentence pursuant
to 28 U.S.C. § 2255, alleging that he received ineffective assistance of counsel because his counsel
had not filed an appeal of the court’s sentence, as Polson claimed he requested. Following an
evidentiary hearing, the district court granted the motion and re-sentenced Polson to the same
sentence he had previously been given, to afford Polson the chance to appeal.1 At Polson’s re-
sentencing, the district court made clear that he would only reinstate the judgment that the court had
previously imposed, and therefore, Polson’s re-sentencing hearing did not revisit any of the previous
issues or arguments related to Polson’s original sentence. On September 8, 2008, Polson timely
appealed his re-imposed sentence.
DISCUSSION
1
This procedure was consistent with this Court’s prior instructions to district courts that
found a defendant’s counsel failed to file a notice of appeal as the defendant requested. See Rosinski
v. United States, 459 F.2d 59, 59 (6th Cir. 1972); Johnson v. United States, 146 F. App’x 4, 5 (6th
Cir. 2005).
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No. 08-2270
In his appeal, Polson challenges his sentence on two related grounds: first, that the district
court denied Polson the benefit of the safety valve provision based on improper factfinding; and
second, that the district court committed procedural error by failing to provide adequate reasoning
for its denial of the safety-valve exception.
I. Standard of Review
In reviewing a sentence imposed by a district court, this Court reviews the ultimate sentence
imposed for reasonableness, under “a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 128 S. Ct. 586, 591 (2007). However, this Court reviews the factual findings
the district court made in reaching its sentence under the clearly erroneous standard, and reviews its
conclusions of law de novo. United States v. Tate, 516 F.3d 459, 464 (6th Cir. 2008).
A district court’s sentence is procedurally unreasonable if the court commits “significant
procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence–including an explanation for any deviation from the Guidelines range.” Gall, 128 S.Ct.
at 597. Polson’s two challenges to the district court’s denial of the safety valve–that the denial was
based on improperly found facts and that the court’s explanation for the denial was inadequate–are
both concerned with the procedural reasonableness of his sentence. See id.Generally, a defendant must object to any procedural errors made by the sentencing judge
immediately after the district court has announced its sentence, or any procedural reasonableness
challenge is subject to plain-error review on appeal. United States v. Vonner, 516 F.3d 382, 385-86
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No. 08-2270
(6th Cir. 2008) (en banc). However, the plain-error standard applies only where the district court
gave the appellant “a meaningful opportunity” to object. Id. at 385. A district court provides this
meaningful opportunity to object “only by clearly asking for objections to the sentence that have not
been previously raised.’” United States v. Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (quotations
and citation omitted). Where the district court fails to ask that specific question, a defendant’s
“failure to raise any of his arguments as objections below does not trigger plain-error review.”
United States v. Gapinski, 561 F.3d 467, 473-74 (2009). After sentencing Polson, the district court
asked Polson’s counsel only whether there was “[a]nything more for the defendant?” (Sentencing
Tr. at 24.) This question was not specific enough for the negative response from Polson’s counsel
to trigger plain-error review. See Gapinski, 561 F.3d at 473 (concluding plain-error review did not
apply where district court asked appellant’s counsel, “Anything else for the record[?]”); Thomas, 498
F.3d at 340 (no plain-error review where district court asked, “Do you have anything further for the
record[?]”). Accordingly, we will review the procedural reasonableness of the district court’s
sentence under the usual abuse-of-discretion standard.2 See Gall, 128 S. Ct. at 591.
II. Denial of Safety Valve
“As the safety valve determination is based on factual findings, this Court reviews only for
clear error a district court’s decision not to grant a safety valve reduction.” United States v. Haynes,
2
Arguably, even if the district court had properly asked Polson if he had any objections, plain-
error review would have been appropriate only for Polson’s challenge to the adequacy of the court’s
explanation for denying the safety valve, and not for Polson’s challenge to the denial itself. See
Vonner, 516 F.3d at 386 (holding defendant’s failure to object to procedural errors after imposition
of sentence does not affect defendant’s right to appeal procedural issues he previously raised).
Because Polson argued for the benefit of the safety valve in his sentencing memorandum, he did not
need to object to the district court’s rejection of that argument.
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No. 08-2270
468 F.3d 422, 426 (6th Cir. 2006). “A finding of fact will only be clearly erroneous when, although
there may be some evidence to support the finding, ‘the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.’” United States v. Latouf,
132 F.3d 320, 331 (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)). “We will
uphold the district court’s decision as long as it has interpreted the evidence in a manner consistent
with the record.” United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003). “This is so even
when the district court’s findings do not rest on credibility determinations, but are based instead on
physical or documentary evidence or inferences from other facts.” Anderson, 470 U.S. at 574.
“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Id.The safety valve provision mandates that for defendants convicted of violating 21 U.S.C. §
841, a district court “shall impose a sentence . . . without regard to any statutory minimum sentence”
if the court finds that
(1) the defendant does not have more than 1 criminal history point, as determined
under the sentencing guidelines; (2) the defendant did not use violence or credible
threats of violence or possess a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense; (3) the offense did not result in
death or serious bodily injury to any person; (4) the defendant was not an organizer,
leader, manager, or supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing criminal enterprise, as
defined in section 408 of the Controlled Substances Act; and (5) not later than the
time of the sentencing hearing, the defendant has truthfully provided to the
Government all information and evidence the defendant has concerning the offense
or offenses that were part of the same course of conduct or of a common scheme or
plan[.]
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No. 08-2270
18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2(a). “A defendant bears the burden of proving by a
preponderance of the evidence that he or she is entitled to a safety valve reduction.” Haynes, 468
F.3d at 427.
Polson argues that because he provided a detailed version of the facts surrounding his
offense, the burden should have shifted to the government to provide rebutting evidence. However,
a defendant does not automatically meet his burden simply by providing a narrative of the
circumstances surrounding his offense; he must also prove that he has provided his information
“truthfully.” 18 U.S.C. § 3553(f)(5); see also United States v. O’Dell, 247 F.3d 655, 675 (6th Cir.
2001) (“[T]he safety valve was intended to benefit only those defendants who truly cooperate.”)
(quotations and citation omitted).
The district court did not commit clear error in finding that Polson did not provide
information truthfully. Although Polson provided the probation officer with a detailed version of
the events leading up to his arrest, that version differed dramatically from the version he provided
in his initial statement after his arrest. In his initial statement, Polson portrayed himself as a frequent
seller of drugs, indicating that he had purchased nine to eighteen ounces of cocaine on approximately
fifteen occasions from his supplier, and that he cooked the cocaine into crack on his own before
selling it. In his subsequent statement to the probation officer, Polson indicated that he was not a
regular seller, but simply agreed to make a one-time delivery. Both of Polson’s accounts were
submitted by way of the PSR, and neither version was entitled to greater evidentiary weight than the
other. Although Polson’s counsel argued at the sentencing hearing that Polson’s statement to the
probation officer was the truth, he did not submit any evidence to support that claim. Because the
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No. 08-2270
record does not indicate that the court committed clear error in finding Polson’s statement to his
probation officer to be untruthful, we affirm the district court’s finding that Polson was not entitled
to the benefit of the safety valve provision.
III. Adequacy of Explanation
In reviewing the district court’s reasoning, this Court must “ensure that the district court has
‘adequately explain[ed] the chosen sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing.’” United States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007)
(quoting 18 U.S.C. § 3553(a)). “Reversible procedural error occurs if the sentencing judge fails to
‘set forth enough [of a statement of reasons] to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.’”
Id. (quoting Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468 (2007)). “[T]he record must
contain the district court’s rationale for concluding that the sentence imposed is ‘sufficient but not
greater than necessary, to comply with the purposes’ of sentencing set forth in 18 U.S.C. § 3553(a).”
Id. “This Court has established that ‘[w]here a defendant raises a particular argument in seeking a
lower sentence, the record must reflect both that the district judge considered the defendant’s
argument and that the judge explained the basis for rejecting it.’” United States v. Recla, 560 F.3d
539, 547 (6th Cir. 2009) (quoting United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006)).
The district court’s denial of the safety valve benefit in Polson’s case was procedurally
unreasonable because the court did not provide reasoning that was clear enough to afford meaningful
review. The PSR recommended that Polson’s requests for acceptance of responsibility and the safety
valve exception both be denied for the same reason: that Polson’s two conflicting statements
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No. 08-2270
regarding how he came to possess the drugs at issue undermined his claim to truthfulness. During
the sentencing hearing, while arguing that Polson was entitled to credit for acceptance of
responsibility, Polson’s counsel attempted to explain the reason for the discrepancy in Polson’s
statements, arguing that Polson had been nervous the day of his arrest and had not had the
opportunity to consult with his attorney; the district court responded by granting a three-level
reduction for acceptance of responsibility, though it did not give its reason for doing so. Then,
without hearing any arguments regarding the safety valve exception, the court denied it because
Polson had not been “truthful and forthright.” (Sentencing Tr. at 13.) While this short statement
might ordinarily be sufficient to satisfy this Court’s requirement that district courts give reasons for
rejecting parties’ arguments, in the specific context of having just granted acceptance of
responsibility, the explanation was confusing. See United States v. Liou, 491 F.3d 334, 338 (6th Cir.
2007) (“The amount of reasoning required varies according to the context.”). The district court
found that Polson was not truthful after “reading everything in this case,” (Sentencing Tr. at 13)
(emphasis added), thereby indicating that it based its decision upon the written submissions. Since
the government did not submit a sentencing memorandum, the district court appeared to be relying
entirely on the PSR to deny the safety valve. However, the PSR recommended denying both
acceptance of responsibility and the safety valve exception because of Polson’s lack of truthfulness.
It is therefore unclear why the district court granted Polson acceptance of responsibility but
denied him the benefit of the safety valve. If the court had explained why it granted acceptance of
responsibility credit to Polson in spite of his lack of truthfulness, this Court could be more confident
that the district court’s findings were consistent. Because the court did not explain its granting of
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No. 08-2270
acceptance of responsibility, and provided only a cursory–and potentially inconsistent– explanation
for denying the safety valve, the court did not provide a clear rationale for the sentence imposed and
its rejection of Polson’s explanation for the inconsistency of his two statements. See United States
v. Moon, 513 F.3d 527, 539 (6th Cir. 2007) (“The district court’s opinion must . . . provide some
indication that the court considered the defendant’s arguments in favor of a lower sentence and the
basis for rejecting such arguments.”).
The court compounded this confusion in its statement of reasons included with the judgment,
in which it stated that it adopted the PSR without change, even though it seemingly rejected the
court’s recommendation to deny Polson credit for acceptance of responsibility. In short, the court
failed to “adequately explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” See Bolds, 511 F.3d at 580.
Accordingly, the district court’s failure to provide an adequate explanation for denying
Polson the safety valve benefit was procedurally unreasonable.3
CONCLUSION
3
Polson also argues that the district court’s failure to hold a “meaningful evidentiary hearing”
to determine the credibility of his statement to the probation officer further rendered its sentence
procedurally unreasonable. Although our finding of procedural unreasonableness renders this
argument superfluous, we note that it is without merit. First, district courts are not required to hold
a separate evidentiary hearing when a sentencing issue is in dispute. See Fed R. Crim P. 32(i)(2) (a
district court “may permit the parties to introduce evidence on the objections” to the PSR) (emphasis
added); see also United States v. Thomas, 167 F.3d 299, 305-06 (6th Cir. 1999) (court’s refusal to
conduct evidentiary hearing regarding disputed issue at sentencing is reviewed for abuse of
discretion). Moreover, Polson did not request an evidentiary hearing or seek to introduce
independent evidence to support the veracity of the statement he made to the probation officer prior
to sentencing. Accordingly, the district court did not abuse its discretion in failing to conduct a
separate evidentiary hearing.
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For the reasons set forth above, we VACATE the district court’s sentence and REMAND for
re-sentencing.
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No. 08-2270
JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur in the majority opinion,
but I write separately to note my objection to our court’s excessively formalistic application of the
Bostic rule. We held in Bostic that, where the district court provides a “meaningful opportunity to
object” to a sentence yet either party fails to do so, that party’s objection is forfeited and reviewable
only for plain error. See United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004); see also United
States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc). This sensible rule “serve[s] the
dual purpose[s] of permitting the district court to correct on the spot any error it may have made and
of guiding appellate review.” See Bostic, 371 F.3d at 873 (second brackets in original). In subsequent
cases, however, the rule has been extended to require the district court not only to provide an
opportunity to object, but to do so using the precise words announced in Bostic. See, e.g., United
States v. Gapinski, 561 F.3d 467, 473 (6th Cir. 2009) (finding the question “Anything else for the
record, [counsel]?” not sufficient opportunity to object); United States v. Thomas, 498 F.3d 336, 340
(6th Cir. 2007) (finding the question “Do you have anything further for the record, [counsel]?” not
sufficient opportunity to object). This extension of the Bostic rule elevates form over function and
requires the kind of “ritualistic incantation” we have rejected elsewhere in the sentencing context.
See United States v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007).
Here, I would find that the district court provided Polson with a meaningful opportunity to
object to his sentence. After the court announced Polson’s sentence, the following exchange
occurred:
THE COURT: Anything more for the defendant?
COUNSEL: No, your Honor, thank you.
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No. 08-2270
In my view, this was sufficient. Indeed, the timing of the question–at the conclusion of the sentencing
proceeding–leaves little room for doubt that the court was soliciting objections for the record.
Because I believe that the district court provided a meaningful opportunity to object to his
sentence, Polson’s failure to do so should render his subsequent objection reviewable only for plain
error. Nevertheless, finding myself constrained by circuit precedent, I concur in the majority opinion.
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