United States v. Usebia Dontrell Green

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-14707 APR 29, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 08-00021-CR-CAR-5
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee
Cross-Appellant,
versus
USEBIA DONTRELL GREEN,
Defendant-Appellant
Cross-Appellee.
________________________
No. 10-10589
Non-Argument Calendar
________________________
D. C. Docket No. 5:08-cr-00021-CAR-CWH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
USEBIA DONTRELL GREEN,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Georgia
________________________
(April 29, 2011)
Before CARNES, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
Usebia Green appeals his 97-month sentence imposed after a jury found him
guilty of possession with intent to distribute more than 50 grams of crack cocaine.
Green contends that his sentence was procedurally unreasonable. He argues that
the district court erred at the sentence hearing by failing to clearly rule on whether
it was providing him with safety-valve relief. That failure was, according to
Green, a violation of Federal Rule of Criminal Procedure 32(i)(3)(B), which
requires that a court “must—for any disputed portion of the presentence report or
other controverted matter—rule on the dispute or determine that a ruling is
unnecessary . . . .”
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The government on cross-appeal contends that because the district court
failed to expressly grant safety-valve relief, the court erred in sentencing Green to
97 months, which was below the statutory minimum sentence of 120 months.
I.
A federal grand jury indicted Green on one count of possessing with the
intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(iii) and 18 U.S.C. § 2. Green proceeded to trial, where
two police officers testified that they had observed him sell crack cocaine to an
undercover informant. The informant also took the stand, echoing the officers’
version of events and identifying Green as the man who had sold him crack
cocaine. Green testified in his own defense, denying any involvement in the drug
sale. The jury returned a verdict of guilty.
Before his sentence hearing, Green filed pro se numerous documents,
including a sentencing memorandum and two motions alleging ineffective
assistance of counsel. In the sentencing memorandum Green argued that he was
eligible for various reductions in his sentence, including relief under the “safety
valve” provision in United States Sentencing Guidelines § 5C1.2, which permits a
court to sentence a defendant below the statutory minimum provided he meets
each of the five requirements laid out in 18 U.S.C. § 3553(f).
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At the sentence hearing the district court first noted that Green’s
presentence investigation report had calculated his guidelines range as 97 to 121
months but that there was a statutory mandatory minimum sentence of 120 months
applicable to his crack cocaine conviction. Defense counsel then spoke up,
acknowledging the various pro se objections and motions that Green had filed but
concluding: “I have no legal objections to the PSR. As the court has noted it’s a
straight 120 month mandatory minimum.” The court then allowed Green to speak,
and he argued that he was entitled to a lower sentence because of acceptance of
responsibility, his “family ties,” and the safety valve provision.
When the court questioned Green about his safety-valve argument, defense
counsel interjected, reminding Green that because he had testified under oath
during his trial, anything he might say at the sentence hearing could subject him to
further prosecution. The court re-emphasized that point, explaining to Green that
he could be indicted for perjury if he contradicted the testimony he had given
during his trial (denying any involvement in the crime).
The court then addressed and rejected Green’s arguments that were based on
his alleged acceptance of responsibility and his “family ties” before returning to
the question of safety valve relief. Green argued again that he believed he met all
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five requirements necessary for safety valve relief. His counsel then spoke up,
explaining the predicament:
Clearly, Your Honor, I would love to see Mr. Green get the safety
valve but my understanding is that he has not yet accepted and told
the Government everything he has to say about this case. And he has
already testified under oath at trial so he is in a precarious situation.
The government agreed with defense counsel, pointing out that the only thing
Green had owned up to was the undisputed fact that the jury had found him guilty;
he had not admitted that he committed the crime. As a result, the government
argued, safety valve relief was not appropriate.
After asking whether either side had anything further, the court then
proceeded to pronounce sentence:
Well, the court recognizes that the Supreme Court’s ruling in United
States verus Booker, sets forth that the District Courts, while not
being bound to apply the sentencing guidelines, must consult those
guidelines and take them into account when sentencing. In imposing
sentence today, the Court has taken the Guidelines under advisement
and determined that the advisory sentencing range is 97 to 121
months, which increases to 120 to 121. Due to the statutory
mandatory minimum and considering an offense level of 30 and a
criminal history category of I.
However, in this case the Court is going to enter a variance and
I am going to reduce the guideline sentencing range down to 97 to
121 months. I think that is appropriate in terms of this case and
considering the nature and circumstances of the offense . . .
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The court went on to discuss other 18 U.S.C. § 3553(a) factors before explaining
that it was imposing a sentence of 97 months imprisonment. When it asked
whether either side had any objections, the government objected to the court’s
having imposed a sentence “below the mandatory statutory minimum.” Green
raised no further objections. The court then acknowledged the government’s
objection and concluded the hearing.
In the “Statement of Reasons” it filed after sentencing, the district court
adopted the PSR without change. The court also recognized that a mandatory
minimum sentence applied to Green’s count of conviction, but the court justified
sentencing below the mandatory minimum on the basis that it had “imposed a
variance (downward).” On the sentencing form used in that district the court left
unchecked a box that would have indicated that it had granted safety valve relief.1
II.
We review de novo a district court’s interpretation and application of the
sentencing guidelines. United States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir.
2010). We also review de novo the district court’s authority to impose a sentence
1
For reasons we explain more fully below, the Middle District of Georgia’s “Statement of
Reasons” form appears to contain at least one error in section “II.C.” That section of the form
allows a court to explain why it imposed a sentence below the mandatory minimum. One of the
options a court can check is that “[t]he Court imposed a variance (downward),” but that would
not, under the law of this Circuit, justify a sentence below the mandatory minimum. See United
States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir. 2008).
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below the statutory minimum. United States v. Gomes, 621 F.3d 1343, 1345 (11th
Cir. 2010). In an appeal of a denial of a motion for relief under the safety valve,
we review findings of fact for clear error and the application of law to those facts
de novo. United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004).
III.
U.S.S.G. § 5C1.2, the so-called “safety-valve” provision, enables a district
court to sentence a defendant without regard to the statutory minimum for certain
offenses if five requirements are met. United States v. Milkintas, 470 F.3d 1339,
1344 (11th Cir. 2006). A defendant who satisfies these criteria is eligible for a
two-level reduction in offense level. See id.; see also U.S.S.G. § 2D1.1(b)(11).
The burden is on the defendant to show that he has met all of the safety-valve
requirements. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997). The
last of them is that the defendant must show that:
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 . . . .
18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). This final factor is a “tell-all”
provision: in order to satisfy it, the defendant has an affirmative responsibility to
“truthfully disclose to the government all information and evidence that he has
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about the offense and all relevant conduct.” Johnson, 375 F.3d at 1302 (quotation
marks and citation omitted).
“It is well-settled that a district court is not authorized to sentence a
defendant below the statutory mandatory minimum unless the government filed a
substantial assistance motion pursuant to 18 U.S.S.C. § 3553(e) and U.S.S.G.
§ 5K1.1 or the defendant falls within the safety-valve of 18 U.S.C. § 3553(f).”
United States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir. 2008). As we
explained in Castaing-Sosa, the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), “made advisory the Sentencing
Guidelines, not statutory mandatory minimums enacted by Congress.” 530 F.3d at
1362. We continued: “Thus, Booker’s instruction to district courts to consider the
factors in § 3553(a) in fashioning a reasonable sentence cannot be read to
authorize using the § 3553(a) factors to impose a sentence below an applicable
statutory mandatory minimum.” Id.
Both sides ask us to remand this case for resentencing, and our review of the
record convinces us that is the correct result. We agree with Green that the district
court failed to expressly rule on his request for safety-valve relief. That said, the
court’s actions, statements, and the “Statement of Reasons” form it filled out after
sentencing strongly suggest that it did reject Green’s request.
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We also agree with the government that the district court exceeded its
authority in sentencing Green to 97 months imprisonment. See Castaing-Sosa,
530 F.3d at 1360. The government did not file a substantial assistance motion
under U.S.S.G. § 5K1.1, and there was no express grant of safety-valve relief. The
district court’s use of the § 3553(a) factors to justify its “variance” below the
mandatory minimum was, for the reasons we explained in Castaing-Sosa, error.
Id. at 1362.
For these reasons, Green’s sentence is vacated and the case is remanded to
the district court for further proceedings consistent with this opinion.2
VACATED AND REMANDED.
2
Because we are remanding this case for resentencing, we need not decide several other
issues that Green raises in this appeal. Two of them concern the district court’s alleged failure at
sentencing to verify that Green and his attorney had read and discussed his PSR and its alleged
failure to consider Green’s argument that under Kimbrough v. United States, 552 U.S. 85, 128
S. Ct. 558 (2007), he was entitled to a lower sentence. Even if we assume that the alleged errors
were errors, our decision renders them moot, at least for the time being. Green also argues that
his counsel rendered ineffective assistance during sentencing. That argument is moot because
Green, who is represented by new counsel, is to be resentenced.
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