United States v. Korey L. Blackford ( 2006 )


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  •                       United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 06-1661
    ________________
    United States of America,              *
    *
    Appellant,                       *
    *      Appeal from the United States
    v.                               *      District Court for the
    *      Northern District of Iowa.
    Korey L. Blackford,                    *
    *
    Appellee.                        *
    ________________
    Submitted: October 18, 2006
    Filed: November 30, 2006
    ________________
    Before WOLLMAN, RILEY and GRUENDER, Circuit Judges.
    ________________
    GRUENDER, Circuit Judge.
    Korey L. Blackford was sentenced to 180 months’ imprisonment, based first on
    a downward variance premised on the factors in 
    18 U.S.C. § 3553
    (a) from 262 months
    to the statutory mandatory minimum of 240 months, followed by a 25 percent
    departure below the statutory mandatory minimum pursuant to18 U.S.C. § 3553(e)
    and U.S.S.G. § 5K1.1 for substantial assistance. The Government appeals the
    sentence, arguing that the downward variance was based on an improper factor and
    that the district court erred in applying a variance before completing the guidelines
    departure portion of the advisory guidelines range calculation. We vacate the sentence
    and remand for resentencing.
    Blackford was indicted on one count each of conspiracy to distribute 500 grams
    or more of a mixture or substance containing at least 50 grams of actual
    methamphetamine, in violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(A), and 846, and
    possession with intent to distribute 50 grams or more of actual methamphetamine, in
    violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(A). The Government later gave notice
    pursuant to 
    21 U.S.C. § 851
     that Blackford was subject to an increased mandatory
    minimum sentence of 240 months due to a 1994 felony drug-trafficking conviction.
    Blackford agreed to cooperate with the Government in its ongoing investigations. The
    agreement did not purport to give Blackford immunity from sentencing enhancements
    for any self-incriminating conduct disclosed in the course of his debriefing. Blackford
    eventually pled guilty to both counts under the terms of a plea agreement, and the plea
    agreement expressly stated that the information Blackford provided in the course of
    his cooperation “may and will be used . . . by the court
    . . . to determine the length of the defendant’s sentence.” Plea Agreement ¶ 8.
    In the course of his cooperation, Blackford disclosed that he had personally
    trafficked large amounts of methamphetamine. He stipulated that he was responsible
    for at least 1.5 kilograms of methamphetamine “ice,” see U.S.S.G. § 2D1.1(c) note
    (C), resulting in a base offense level of 38 under U.S.S.G. § 2D1.1. After a three-level
    reduction for acceptance of responsibility, and with a criminal history category of V,
    Blackford’s advisory guidelines sentencing range was 262 to 327 months’
    imprisonment. The parties agree that, absent the drug quantity Blackford disclosed
    in the course of his cooperation and to which he then stipulated, the lower end of his
    advisory guidelines range would have been the statutory mandatory minimum of 240
    months.
    At Blackford’s sentencing hearing, the Government made substantial assistance
    motions under both U.S.S.G. § 5K1.1 (authorizing the court to depart below the
    otherwise-applicable guidelines range) and 
    18 U.S.C. § 3553
    (e) (authorizing the court
    to depart below the statutory mandatory minimum) and recommended a 20 percent
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    reduction from 262 months. Before ruling on those motions, the district court sua
    sponte discussed U.S.S.G. § 1B1.8, under which the Government may agree, as part
    of a defendant’s cooperation agreement, that any self-incriminating information
    disclosed through the defendant’s cooperation “shall not be used in determining the
    applicable guidelines range, except to the extent provided in the agreement.”
    Although the district court recognized that the Government and Blackford had not
    reached such an agreement to exclude such incriminating information in this case, the
    district court stated that “it’s only fair to give the defendant the benefit of the 1B1.8
    protection because . . . I believe there’s over 90 districts that do give the defendant the
    benefit of the 1B1.8 protection” and “it’s well within my discretion as a variance.”
    Sent. Trans. at 20. Consequently, citing its discretion to apply the factors listed in 
    18 U.S.C. § 3553
    (a), the district court varied from 262 months to the 240-month
    mandatory minimum. Next, the district court granted a 25 percent downward
    departure from 240 months to 180 months based on Blackford’s substantial assistance.
    The Government appeals, arguing that (1) the 22-month downward variance is
    unreasonable because disagreement with the Government’s decision not to make an
    agreement under § 1B1.8 is not a proper factor upon which to base a variance, and (2)
    the district court erred in applying a variance based on the § 3553(a) factors before
    completing the departure portion of the advisory guidelines range calculation.
    We review a district court’s decision to grant a variance for reasonableness, a
    standard that we have equated with abuse of discretion. United States v. Ture, 
    450 F.3d 352
    , 356 (8th Cir. 2006). As a result,
    A discretionary sentencing ruling . . . may be unreasonable if a
    sentencing court fails to consider a relevant factor that should have
    received significant weight, gives significant weight to an improper or
    irrelevant factor, or considers only appropriate factors but nevertheless
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    commits a clear error of judgment by arriving at a sentence that lies
    outside the limited range of choice dictated by the facts of the case.
    United States v. Haack, 
    403 F.3d 997
    , 1004 (8th Cir. 2005).
    We find that the district court gave significant weight to an improper factor by
    attempting to give Blackford the benefit of a § 1B1.8 sentencing-immunity provision,
    despite the fact that the Government and Blackford did not include such a provision
    in their cooperation agreement. The district court implicitly referred to a valid
    factor—the presumed sentencing disparities, see § 3553(a)(6), created by the
    Government’s discretionary use of § 1B1.8 sentencing-immunity provisions in only
    selected cooperation agreements. However, we rejected the proposition that
    sentencing disparities arising from the Government’s discretionary use of § 1B1.8
    agreements are unwarranted in United States v. Buckendahl, 
    251 F.3d 753
     (8th Cir.
    2001). We recognized that “the [United States Sentencing] Commission intended a
    decision about entering into [§ 1B1.8] agreements to be left to the prosecutor’s
    discretion” and found that “any disparities arising from appropriate prosecutorial
    practices (or sentences resulting from those practices) are justified.” Id. at 761.
    Although Buckendahl addressed the use of downward departures to circumvent
    disparities created by the Government’s discretionary use of § 1B1.8 agreements, its
    logic applies equally to the use of variances. Because any sentencing disparities
    resulting from the Government’s discretionary use of § 1B1.8 agreements are
    “justified,” Buckendahl, 
    251 F.3d at 761
    , the variance imposed here does not address
    “the need to avoid unwarranted sentence disparities,” § 3553(a)(6) (emphasis added).
    Moreover, the preservation of prosecutorial discretion in applying § 1B1.8 is a broad-
    based policy enunciated by the Commission, and a sentencing court’s disagreement
    with such a policy is an improper factor upon which to base a variance. See United
    States v. Sebastian, 
    436 F.3d 913
    , 916 (8th Cir. 2006) (stating that sentencing
    disparities arising from fast-track programs are not unwarranted); see also United
    States v. Moreland, 
    437 F.3d 424
    , 437 (4th Cir. 2006) (“To the extent that the
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    sentence imposed by the district court rests on a rejection of congressional policy
    . . . it is subject to reversal on that basis alone.”); United States v. Pho, 
    433 F.3d 53
    ,
    65 (1st Cir. 2006) (recognizing that variances may not be based upon “general
    disagreement with broad-based policies enunciated by Congress or the Commission,
    as its agent.”). In this case, the district court circumvented the Government’s decision
    not to enter into a § 1B1.8 sentencing immunity agreement with Blackford by
    imposing a downward variance “to give the defendant the benefit of the 1B1.8
    protection.” Therefore, the district court abused its discretion.
    Because we vacate Blackford’s sentence due to the improper variance, we are
    not required to decide whether the district court erred in applying the variance before
    completing the departure portion of the advisory guidelines range calculation. On
    remand, however, the district court will have the benefit of our most recent decisions
    outlining the proper procedure for sentencing:
    Post-Booker, district courts must first determine the appropriate
    sentencing range under the Guidelines because that range is still an
    important sentencing factor. District courts must then decide if a
    traditional departure under the Guidelines is appropriate. Finally, once
    district courts determine the Guidelines sentencing range, courts must
    consider the § 3553(a) factors to determine a sentence, i.e., courts must
    decide whether to impose a Guidelines sentence or to vary from the
    Guidelines range to impose a non-Guidelines sentence.
    Ture, 
    450 F.3d at 356
     (internal citations omitted).
    For the foregoing reasons, we vacate Blackford’s sentence and remand to the
    district court for resentencing consistent with this opinion.
    ______________________________
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