United States v. Shauntae Hill ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0377p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-2229
v. │
│
│
SHAUNTAE HILL, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:19-cr-00053-1—Paul Lewis Maloney, District Judge.
Decided and Filed: December 9, 2020
Before: BATCHELDER, WHITE and BUSH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Matthew M. Nee, NEE LAW FIRM, LLC, Westlake, Ohio, for Appellant. Vito S.
Solitro, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. Shauntae Hill appeals his 144-month prison sentence,
imposed after he pleaded guilty to one count of possession with intent to distribute fifty grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii). Hill argues
that the district court erred in two ways. First, Hill contends that he should not have been
classified as a career offender at sentencing because his past Michigan convictions do not qualify
as controlled substance offenses under USSG § 4B1.1. Second, Hill argues that he should have
No. 19-2229 United States v. Hill Page 2
been given an offense-level reduction for being a minor participant under USSG § 3B1.2. For
the following reasons, we AFFIRM Hill’s sentence.
I.
On November 8, 2018, Hill drove his cousin, Robert Henderson, to a controlled drug buy,
where Henderson sold an undercover officer 83.5 grams of methamphetamine. Less than two
weeks later, Henderson met an undercover investigator at a hotel for another controlled purchase
and, upon explaining that he did not have the drugs with him, called Hill to bring the drugs to the
hotel. Hill’s sister drove Hill to the hotel. Once she parked the car, police surrounded the
vehicle. They removed Hill from the vehicle, noticed a bulge in his groin area, and recovered
approximately five ounces of crystal methamphetamine from Hill’s person. After officers
advised him of his Miranda rights, Hill said that Henderson had asked him to get the drugs on
Henderson’s behalf and that Hill then delivered them to the place of arrest. Hill also denied
knowledge of the November 8 transaction. Hill later explained to a probation officer that
Henderson had asked Hill to hold drugs for him while Henderson waited for a call to sell the
drugs. Henderson offered Hill $50.00 for his assistance.
Hill was indicted for one count of aiding and abetting the distribution of fifty grams or
more of methamphetamine (Count 1) and one count of possession with intent to distribute fifty
grams or more of methamphetamine (Count 2). Hill pleaded guilty to Count 2. In his plea
agreement, Hill stipulated that he had been convicted of felonies in violation of Michigan
Compiled Laws § 333.7401(2)(a)(iv), that he served over twelve months in prison for each
felony, and that his release from his term of imprisonment for each offense was within fifteen
years of the commission of the offense charged in Count 2 of the indictment. In doing so, he
acknowledged that he had “at least one ‘serious drug felony’ conviction” under 21 U.S.C.
§ 802(57).
Hill objected to the presentence report’s imposition of the career-offender enhancement
and its failure to apply the mitigating-role adjustment. At the sentencing hearing, the district
court denied both of Hill’s objections, finding Hill’s initial guideline range to be 262 to 327
months. The government moved for a downward departure of six levels from the guidelines
No. 19-2229 United States v. Hill Page 3
range under USSG § 5K1.1 and for a release from the fifteen-year mandatory minimum sentence
based on substantial assistance Hill rendered to the government. The district court granted the
government’s motion, which reduced Hill’s guideline range to 140 to 175 months, at Level 28,
Criminal History Category VI. As such, the district court imposed a sentence of 144 months’
imprisonment, to be followed by ten years of supervised release. Hill timely appealed his
sentence.
II.
Hill argues first that he should not have been classified as a career offender under USSG
§ 4B1.1(a). Second, he contends that the district court should have applied a mitigating-role
adjustment to his sentence under USSG § 3B1.2. We address each argument in turn.
A. Career-Offender Enhancement
We review de novo whether a prior conviction qualifies for career-offender status under
USSG § 4B1.1. United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per
curiam).
Hill argues that his 2009 and 2010 convictions under Michigan Compiled Laws
§ 333.7401(2)(a)(iv) should not contribute toward his classification as a career offender because
the Michigan statute includes “attempted transfer” in its definition of “deliver.” Mich. Comp.
Laws §§ 333.7105(1), 333.7401(1). Hill asserts that the inclusion renders his convictions outside
the scope of a controlled substance offense because we held in Havis that attempt crimes are not
controlled substance offenses under the guidelines. See 927 F.3d at 387. In relevant part, USSG
§ 4B1.1(a) defines a career offender as a defendant who committed a felony controlled substance
offense as an adult who “has at least two prior felony convictions of either a crime of violence or
a controlled substance offense.” USSG § 4B1.1(a). A controlled substance offense is an
“offense under federal or state law, punishable by imprisonment for a term exceeding one year,
that prohibits the manufacture, import, export, distribution, or dispensing of a controlled
substance . . . or the possession of a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense.” USSG § 4B1.2(b).
No. 19-2229 United States v. Hill Page 4
Hill raises multiple arguments to support his contention that convictions under Mich.
Comp. Laws § 333.7401(1) cannot constitute controlled substance offenses for the purpose of the
career offender enhancement because the definition of “deliver” includes “attempted transfer.”
In ruling against Hill, the district court relied on the technical distinction between completed and
attempted offenses. See United States v. Havis, 929 F.3d 317, 319–20 (6th Cir. 2019) (Sutton, J.,
concurring in the denial of rehearing en banc reconsideration). Because we have decided this
issue in the time since the parties submitted their briefs, we agree with the district court’s
determination. United States v. Thomas, 969 F.3d 583, 585 (6th Cir. 2020) (per curiam). In
Thomas, we explained that Michigan’s definition of “delivery” mirrors exactly the federal
definition of both “distribution” and “delivery”: “the actual, constructive, or attempted transfer”
of a controlled substance. Id. (quoting 21 U.S.C. § 802(8), (11) and Mich. Comp. Laws
§ 333.7105). For that reason, we rejected the argument “that Michigan has defined delivery
more broadly than federal law to include ‘attempt crimes’” in violation of Havis because
“delivery” under both Michigan and federal law includes only “attempted transfer,” not
“attempted delivery.” Id. (quoting United States v. Garth, 965 F.3d 493, 496–97 (6th Cir.
2020)). Because an “attempted transfer” constitutes a completed delivery rather than an attempt
crime, Michigan’s definition of “delivery” differs from that in Havis, in which the parties had
agreed that Tennessee’s delivery statute encompassed attempted delivery. Id.We therefore conclude that the district court correctly classified Hill as a career offender.
B. Mitigating-Role Adjustment
A defendant must prove facts that would support a sentence reduction under the
guidelines by a preponderance of the evidence. United States v. Jackson, 55 F.3d 1219, 1224
(6th Cir. 1995). We review the district court’s conclusions regarding the defendant’s role in
criminal activity for clear error. Id.Hill argues that the district court should have considered him a minor participant because
of the “small role” he played in the drug transaction, as he was not “essential” and his intended
benefit of $50 was not relatively high compared to a “sophisticated or even a relatively
disorganized drug trafficking endeavor.” See USSG § 3B1.2(b). The mitigating-role adjustment
No. 19-2229 United States v. Hill Page 5
for a minor participant in a criminal activity allows for a 2-level reduction in offense level under
the guidelines. Id. That reduction applies to defendants who are “less culpable than most other
participants, but whose roles could not be described as minimal.” United States v. Tatum, 462 F.
App’x 602, 607 (6th Cir. 2012) (quoting USSG § 3B1.2, comment (nn.4–5)).
The district court found that the mitigating-role adjustment did not apply to Hill based on
the quantity of drugs involved, recognizing that the existence of a “larger player” in the drug
scheme did not necessarily entitle Hill to the reduction. The district court agreed with the
government’s position in its sentencing memorandum, which argued that Hill “understood the
scope and structure of the simple drug deal,” “played an essential role in storing and delivering
the drugs,” “involved another person” in the transaction, and “was going to benefit from the”
transaction.
Here, the government argues that career offenders are not even eligible for a mitigating-
role adjustment. Indeed, nine other circuits have held that mitigating-role adjustments do not
apply to career offenders, at least where, as here, the otherwise applicable offense level is lower
than the offense level in the career offender table, and we have joined them in at least one
unpublished case. See United States v. Smith, 60 F. App’x 588, 589–90 (6th Cir. 2003) (“This
issue, although not settled in a published Sixth Circuit decision, is settled nonetheless.”); see also
United States v. Johnson, 155 F.3d 682, 684 n.4 (3d Cir. 1998) (detailing cases from the First,
Seventh, Eighth, Ninth, and Eleventh Circuits); United States v. Jeppeson, 333 F.3d 1180, 1184
(10th Cir. 2003); United States v. Perez, 328 F.3d 96, 97–98 (2d Cir. 2003); United States v.
Cashaw, 625 F.3d 271, 274 (5th Cir. 2010). The text and structure of the Sentencing Guidelines
support this view. In particular, the sequence of the Sentencing Guideline Application
Instructions demonstrates that once career-offender status is imposed, a court may impose a
downward adjustment only for acceptance of responsibility. Johnson, 155 F.3d at 683 (citing
USSG § 1B1.1). USSG § 1B1.1 instructs a sentencing court to “[a]pply the adjustments as
appropriate related to victim, role, and obstruction of justice from Parts A, B, and C of Chapter
Three” before moving on to “[d]etermine from Part B of Chapter Four any other applicable
adjustments”—which include the career-offender adjustment. USSG § 1B1.1(a)(3), (6);
Johnson, 155 F.3d at 684.
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Moreover, USSG § 4B1.1(b) assumes that a court has already calculated the “offense
level otherwise applicable” when it selects the offense level for a career offender. Id. (“Except
as provided in subsection (c), if the offense level of a career offender from the table in this
subsection is greater than the offense level otherwise applicable, the offense level from the table
in this subsection shall apply. A career offender’s criminal history category in every case under
this subsection shall be Category VI.”); Johnson, 155 F.3d at 684. In other words, if the
“otherwise applicable” offense level is lower than USSG § 4B1.1(b)’s prescribed offense level,
then the latter controls: USSG § 4B1.1, therefore, overrides any previously applied reduction on
the basis of a mitigating role. USSG § 4B1.1(b); Johnson, 155 F.3d at 684. The only exception
to that rule exists for reductions on the basis of acceptance of responsibility: “If an adjustment
from § 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by the number of
levels corresponding to that adjustment.” USSG § 4B1.1(b) (n.*). According to the inclusio
unius est exclusivo alterius principle, the presence of only one path to reducing a career
offender’s sentence implies that other downward adjustments are inapplicable. Smith, 60 F.
App’x at 590.
Because we agree with our sister circuits that the only reduction available to career
offenders whose offense level is controlled by USSG § 4B1.1(b) is USSG § 3E1.1’s adjustment
for acceptance of responsibility, the question whether the district court should have applied the
mitigating-role adjustment to Hill’s sentence is moot.
III.
For the foregoing reasons, we AFFIRM Hill’s sentence.