United States v. Grant , 567 F.3d 776 ( 2009 )

JULIA SMITH GIBBONS,

Circuit Judge, dissenting.

Because we lack jurisdiction over Kevin Grant’s appeal, I respectfully dissent.

I.

Grant appeals from the district court’s grant of the government’s Rule 35(b) motion. The government had requested a reduction in sentence from twenty-five to sixteen years. Grant joined in the government’s motion, but he requested that his sentence be further reduced below sixteen years. The district court entertained arguments about the extent of Grant’s assistance in the prosecution of his co-conspirators and his role in a separate state death penalty case, in order to assess how large a reduction was warranted. Ultimately, the district court agreed with the government and awarded Grant a nine-year reduction. As the majority notes (Maj. Op. at 780), we have no jurisdiction to review the extent of this downward departure. United States v. Moran, 325 F.3d 790, 794 (6th Cir.2003) (downward departure on Rule 35(b) motion); cf. United States v. Jones, 417 F.3d 547, 548 (6th Cir.2005) (downward departure on U.S.S.G. § 5K1.1 motion). Accordingly, we cannot consider whether any further reduction beyond nine years was warranted.

Grant, however, attempts to bring this case within our purview by reframing his appeal in terms of 18 U.S.C. § 3742. Although we may not review the extent of a downward departure, § 3742 allows us to review a sentence in four, narrow circumstances. “[A] defendant may appeal an ‘otherwise final sentence’ if the sentence (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is greater than the sentence specified in the applicable guideline range; or (4) was imposed for an offense for which there is no guideline and is plainly unreasonable.” Moran, 325 F.3d at 792 (quoting § 3742(a)). Grant argues first that the district court incorrectly calculated his total offense level, giving rise to jurisdiction under the second category. As the majority recognizes, however, the district court correctly calculated the Guidelines range. (Maj. Op. at 780 n. 2.)

Grant next argues that his sentence was imposed in violation of law — giving rise to jurisdiction under the first category — because the district court refused to reconsider the § 3553(a) factors at the Rule 35(b) hearing. Grant fails to raise a color-able argument on that score, however, because the district court was bound by the statutory minimum sentence of twenty-five years except to the extent warranted by Grant’s cooperation. Grant pled guilty to operating a continuing criminal enterprise and possession of a firearm in furtherance of a drug trafficking crime, subjecting him to a mandatory minimum sentence of twenty-five years. See 21 U.S.C. § 848; 18 U.S.C. § 924(e)(l)(A)(i).¹ Where, as here, the district court’s authority to depart below the statutory minimum is based solely on the defendant’s cooperation, substantial assistance is the only factor that the court may consider in departing below the mandatory minimum. This rule is well-settled in the context of a motion brought under 18 U.S.C. § 3553(e). United States v. Bullard, 390 F.3d 413, 416-17 (6th Cir.2004) (collecting cases from the First, Fourth, Seventh, Ninth, Tenth, and Eleventh Circuits). We have previously noted that “[a] motion under § 3553(e) is the pre-sentence equivalent of a Rule 35(b) motion.” United States v. Monus, 20 Fed.Appx. 511, 512 n. 1 (6th Cir.2001). Although we have never addressed this question in the context of a Rule 35(b) motion, because there is no relevant distinction between the two,² I would extend the reasoning to the present case.

The majority, however, ignores the crucial fact that Grant was subject to a mandatory minimum in dismissing the Bullard line of cases and framing the question presented as “what factors a district court may consider when deciding a motion to reduce a sentence pursuant to Federal Rule of Criminal Procedure 35(b).” (Maj. Op. at 777,) But we lack jurisdiction to decide the question posed by the majority because, as discussed above, Grant failed to raise a colorable claim that his sentence was imposed in violation of law. See Moran, 325 F.3d at 794. The majority’s insistence that “all of the case law on this jurisdictional point” is contrary (Maj. Op. at 780) is completely undercut by the fact that the majority cannot find any direct support in this circuit. Whatever the rule may be in the Seventh, Ninth, and Eleventh Circuits, Moran is the rule in the Sixth Circuit. More importantly, none of the cases cited involved a defendant subject to a mandatory minimum sentence. See United States v. Chapman, 532 F.3d 625 (7th Cir.2008); United States v. Doe, 351 F.3d 929 (9th Cir.2003); United States v. Manella, 86 F.3d 201 (11th Cir.1996). Therefore, their reasoning is not persuasive here. By ignoring the fact that Grant was subject to a mandatory minimum sentence, the majority finds procedural error where there is none, circumvents the Moran rule, and turns an unreviewable question into a renewable one. Because I believe that Moran precludes review here, I would dismiss this appeal for lack of jurisdiction.

II.

Although I believe that Moran precludes review here, nonetheless, even if we had jurisdiction to review the district court’s methodology, I would find no procedural error.

The majority’s holding creates an unprincipled disparity between a defendant whose substantial assistance is complete at the time of sentencing and one whose assistance is not yet complete. The former is subject to a mandatory minimum sentence, except to the extent warranted by his cooperation. In the latter case, however, the district court must now reconsider the § 3553(a) factors without regard to the mandatory minimum. Yet, whether a defendant’s cooperation is complete at the time of sentencing often depends on factors beyond the defendant’s control — for example, whether his codefendants have already been indicted, tried, or sentenced. Thus, the applicability of a mandatory minimum will turn on factors unrelated to whether a particular defendant falls within the category of persons that Congress made subject to a mandatory minimum sentence. This result is hardly in keeping with the statutory scheme and is inconsistent with a logical sentencing system.

In holding that a district court is permitted — but not required — to reconsider the § 3553(a) factors on a Rule 35(b) motion, the majority has created new layers of pointless process. By definition, a Rule 35(b) motion is brought only after the defendant has already been sentenced. At the original sentencing, of course, a district court is required to consider the § 3553(a) factors. The majority now invites the district court to redo at the time of the Rule 35(b) motion what it has already done at the time of sentencing — or not. It is unclear how often district courts will accept this invitation, given that they already sentence, on average, 117 defendants per year. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 598 n. 7, 169 L.Ed.2d 445 (2007). Nevertheless, if a district court declines to reconsider the § 3553(a) factors, presumably it must give an explanation for this refusal so that we may provide meaningful appellate review of that decision. Consequently, the majority’s approach will require district courts either to repeat entirely what was done at sentencing or explain why they have declined to do so. We, in turn, must then review— perhaps for a second time, as in this case — the district court’s reconsideration of the § 3553(a) factors or its refusal to do so.

It is unclear who will benefit from all of this. As the majority recognizes, “Grant undoubtedly hopes to receive a larger reduction” in his sentence. (Maj. Op. at 780.) But that appears to be unlikely. Grant already received a sentence nine years below the mandatory minimum — a reduction that the prosecution requested and that the district court granted only with reluctance.³

2 . Section 3553(e) provides in relevant part: Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.

18 U.S.C. § 3553(e) (emphasis added). Prior to 2002, Rule 35(b) contained nearly identical language:

If the Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant’s subsequent substantial assistance in investigating or prosecuting another person....

Fed. R.Crim. P 35(b) (amended 2002) (emphasis added). In 2002, however, the rule was amended to read in relevant part:

Upon the government's motion ..., the court may reduce a sentence if the defendant's substantial assistance involved: [listing criteria].

Fed.R.Crim.P. 35(b)(2). Thus, while Rule 35(b) no longer contains the "to reflect” language, a review of the advisory committee notes reveals that the change was made for reasons wholly unrelated to the issue in this case: The new language allows a sentencing court to grant relief to defendants who would have been denied relief under the old rule because of the "one year" requirement. See Fed.R.Crim.P. 35 advisory committee's note to 2002 amendments. Consequently, the recent amendments to the rule lack the import placed upon them by the majority.

3 . At the Rule 35(b) hearing, the court noted: "But as much as I have to tell you that you are a likeable type of guy, Mr. Grant, I've got to tell you this is more [of a reduction] than I probably would have granted you.” Transcript of Proceedings at 21-22, United States v. Grant, No. CR-2-04—161 (S.D.Ohio Apr. 27, 2007). This reluctance is understandable, given the court’s observation at sentencing that Grant's heroin distribution ring ”[wa]s the biggest criminal enterprise [the court] ha[s] ever seen when it comes to drug criminal enterprise.” Transcript of Proceedings at 33, United States v. Grant, No. CR-2-04-161 (S.D.Ohio Oct. 6, 2005). Thus, reconsideration of the § 3553(a) factors is unlikely to benefit Grant. See § 3553(a)(1) ("The court, in determining the particular sentence to be imposed, shall consider-(l) the nature and circumstances of the offense.... ”).