United States v. Kempheny Stewart , 509 F.3d 450 ( 2007 )


Menu:
  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-1077
    ___________
    United States of America,                *
    *
    Appellant,                   *
    *   Appeal from the United States
    v.                                 *   District Court for the
    *   Eastern District of Missouri.
    Kempheny Stewart,                        *
    *
    Appellee.                    *
    __________
    Submitted: October 18, 2007
    Filed: December 5, 2007
    ___________
    Before RILEY, MELLOY, and COLLOTON, Circuit Judges.
    ___________
    RILEY, Circuit Judge.
    Kempheny Stewart (Stewart) pled guilty to conspiring to distribute 500 grams
    or more of methamphetamine, in violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(A)(viii),
    and 846. Stewart’s advisory sentencing Guidelines range was 262 to 327 months’
    imprisonment with a mandatory minimum sentence of 240 months’ imprisonment.
    After the government filed a motion for downward departure under U.S.S.G. § 5K1.1
    and 
    18 U.S.C. § 3553
    (e), the district court imposed a sentence of 99 months’
    imprisonment. For the reasons stated below, we vacate Stewart’s sentence and
    remand the case to the district court for resentencing.
    I.    BACKGROUND
    Neither party challenges the facts leading to Stewart’s guilty plea nor do they
    dispute Stewart’s advisory sentencing Guidelines range. The only disputed issue is
    whether Stewart’s sentence is reasonable. Thus, we briefly state the relevant facts for
    our decision to remand this case for resentencing.
    Stewart pled guilty to one count of conspiring to distribute 500 grams or more
    of methamphetamine. The unobjected-to presentence investigation report (PSR)
    indicated, due to prior felony drug trafficking convictions, Stewart was a career
    offender, making his total offense level 34 and his criminal history category VI.
    Stewart’s advisory Guidelines range was 262 to 327 months, and his mandatory
    minimum sentence was 240 months’ imprisonment. As part of his plea agreement,
    Stewart cooperated with the government, and the government filed motions for a
    downward reduction based on substantial assistance under U.S.S.G. § 5K1.1 and 
    18 U.S.C. § 3553
    (e).
    At sentencing, and based on Stewart’s substantial assistance, the government
    recommended a sentence of 180 months’ imprisonment, four offense levels
    (approximately 30%) below the bottom of the advisory Guidelines range and 25%
    below the mandatory minimum sentence. Stewart argued his sentence should be 120
    months’ imprisonment. The district court reduced the sentence further and imposed
    a sentence of 99 months’ imprisonment. Stewart’s sentence represented an eleven
    level downward departure, more than a 60% reduction from the bottom of the
    advisory Guidelines range and almost a 60% reduction from the mandatory minimum
    sentence.
    Arguing Stewart’s sentence reduction of eleven levels is unreasonable, the
    government appeals.
    -2-
    II.    DISCUSSION
    “When sentencing a defendant, the district court must first determine the
    applicable advisory Guidelines range . . . relying upon [the defendant’s] offense level
    and criminal history.” United States v. Dalton, 
    478 F.3d 879
    , 881 (8th Cir. 2007)
    (Dalton II). “The district court can then decide if a traditional departure from that
    advisory range is warranted, including one based upon substantial assistance motions,
    by utilizing the Guidelines and the policy statements contained therein, and if so,
    arrive at a final advisory Guidelines sentence.” 
    Id.
     A district court is without
    authority to impose a sentence below a mandatory minimum sentence unless, for
    example, the government files a motion for downward reduction based on a
    defendant’s substantial assistance. See United States v. Williams, 
    474 F.3d 1130
    ,
    1130-31 (8th Cir. 2007) (citing 
    18 U.S.C. § 3553
    (e)). “Where a court has authority
    to sentence below a statutory minimum only by virtue of a government motion under
    § 3553(e), the reduction below the statutory minimum must be based exclusively on
    assistance-related considerations.” Id.; see also United States v. Peterson, No. 06-
    3916, 
    2007 WL 3376981
    , at *1 (8th Cir. 2007) (Peterson II).
    “When determining the appropriate extent of a substantial-assistance downward
    departure, the district court should consider the following five factors: (1) the court’s
    evaluation of the significance and usefulness of the defendant’s assistance, taking into
    consideration the government’s evaluation of the assistance rendered; (2) the
    truthfulness, completeness, and reliability of any information or testimony provided
    by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury
    suffered, or any danger or risk of injury to the defendant or his family resulting from
    his assistance; [and] (5) the timeliness of the defendant’s assistance.” United States
    v. Dalton, 
    404 F.3d 1029
    , 1033 (8th Cir. 2005) (Dalton I) (citing U.S.S.G. §
    5K1.1(a)). “These five factors are not ‘an exhaustive list,’ and the district court is not
    required ‘to examine each of the listed factors in § 5K1.1 on the record and explain
    exactly just what weight it gives to each in its departure decision.’” Id.
    -3-
    In addition, we follow the rule that extraordinary circumstances are required to
    justify extraordinary reductions from the advisory sentencing Guidelines range. See
    United States v. Meyer, 
    452 F.3d 998
    , 1001 (8th Cir. 2006). By extraordinary
    reductions we mean departures or variances “we have considered particularly large
    relative to the two to four offense level adjustments generally envisioned by the
    structure of the sentencing guidelines for mitigating or aggravating circumstances.”
    United States v. Burns, 
    500 F.3d 756
    , 762 (8th Cir. 2007) (en banc) (citing United
    States v. Saenz, 
    428 F.3d 1159
    , 1162 (8th Cir. 2005)). We must conduct a
    proportionality analysis. Id. at 761-62; see also Peterson II, 
    2007 WL 3376981
    , at *2.
    “[O]ur extraordinary reduction/extraordinary circumstances formulation requires
    circumstances of a strength proportional to the extent of the deviation from reductions
    envisioned by the guidelines’s structure.” Burns, 
    500 F.3d at 761-62
    . “Extraordinary
    circumstances are infrequently found and involve assistance going well beyond that
    provided by other defendants.” 
    Id. at 763
    .
    If a defendant’s sentence is appealed, “[w]e review de novo the district court’s
    interpretation and application of the Guidelines, we review for clear error the district
    court’s factual findings, and we review for an abuse of discretion the district court’s
    decision to depart from the appropriate Guideline range.” United States v. Peterson,
    
    455 F.3d 834
    , 837 (8th Cir. 2006) (Peterson I). We have previously stated, “what the
    district court is required to do is act reasonably when exercising the discretion it is
    given, and we will not infer a reasoned exercise of discretion from a record that
    suggests otherwise or is silent.” Dalton I, 
    404 F.3d at 1033
    .
    With these precepts in mind, we find two flaws in Stewart’s sentence. First, the
    district court failed to state how it arrived at a 99-month sentence. The record is silent
    with respect to the district court’s evaluation of Stewart’s assistance to the
    government. Thus, the record does not show a reasoned exercise of the district court’s
    sentencing discretion.
    -4-
    Second, the record does not indicate any extraordinary circumstances in
    Stewart’s assistance that could possibly justify the district court’s extraordinary
    reduction of eleven levels. In the U.S.S.G § 5K1.1 and § 3553(e) motions, the
    government assessed Stewart’s assistance as timely, truthful, complete, reliable, useful
    to secure other guilty pleas by other co-conspirators, and instrumental in securing the
    guilty plea of a person considered a “ringleader.” On the other hand, in its substantial
    assistance motion, the government also states, “[t]he defendant did not engage in any
    proactive assistance such as conducting a ‘controlled buy’ of narcotics or wearing a
    listening device to gather evidence. While the [d]efendant agreed to testify if
    requested to do so, he ultimately did not testify in any proceeding.” “A substantial
    assistance reduction is judged by the degree and quality of the assistance actually
    provided, not the defendant’s willingness to do more and inability to do so.” Peterson
    II, 
    2007 WL 3376981
     at *2. Stewart’s assistance, based on the government’s motion
    alone, could not reasonably be characterized as sufficiently extraordinary to merit an
    eleven level sentence reduction. The record also does not indicate Stewart or his
    family were ever injured, in danger, or at risk. Stewart’s assistance, as related in this
    record, is not extraordinary.
    III.   CONCLUSION
    Because the district court did not indicate (1) how Stewart’s assistance was
    evaluated and (2) what extraordinary circumstances could exist justifying this
    extraordinary reduction of eleven levels in Stewart’s sentence, we cannot determine
    the district court reasonably exercised its discretion in sentencing Stewart.1 We,
    1
    The government also argues the district court may have impermissibly blended
    Stewart’s criminal history with notions of substantial assistance in imposing Stewart’s
    sentence. For purposes of a substantial assistance motion, considering criminal
    history would be wrong. See Peterson II, 
    2007 WL 3376981
     at *1; Williams, 
    474 F.3d at 1130-31
    . However, from this record, we cannot discern specifically how the
    district court considered Stewart’s criminal history in rendering the sentence. Thus,
    we cannot conduct a meaningful review of this issue.
    -5-
    therefore, vacate Stewart’s sentence and remand for resentencing consistent with this
    opinion.
    ______________________________
    -6-