United States v. Kevin L. Nelson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2005
No. 05-11874 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00022-CR-1-SPM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN L. NELSON,
a.k.a "K Nel",
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 29, 2005)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Kevin L. Nelson appeals his 300-month sentence for conspiracy to possess
with intent to distribute more than 1,000 kilograms of marijuana, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846. On appeal, Nelson argues that the
district court was obligated under 18 U.S.C. § 3553(a) to consider sentencing
factor manipulation and his drug addiction in sentencing him and that it failed to
do so. He contends that the government’s delay in arresting him and federally
charging him despite numerous state arrests and convictions was “outrageous and
conscience-shocking” sentencing factor manipulation. He also asserts that his drug
addiction justified a substantial downward departure.
When a defendant makes an objection at trial, we review the sentencing
court's application of the guidelines de novo. United States v. Gallegos-Aguero,
409 F.3d 1274, 1276 (11th Cir. 2005) (per curiam). The district court need not
explicitly consider or discuss on the record each of the factors listed in 18 U.S.C. §
3553(a) at sentencing. United States v. Scott, 11th Cir. 2005, __ F.3d __, (No. 05-
11843, Sept. 27, 2005).
A claim of sentencing factor manipulation “points to the opportunities that
the sentencing guidelines pose for prosecutors to gerrymander the district court’s
sentencing options and thus, defendant[s’] sentences.” United States v. Sanchez,
138 F.3d 1410, 1414 (11th Cir. 1998) (quotation marks omitted). While we have
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not explicitly accepted or rejected the defense, see id., we noted in United States v.
Govan, 293 F.3d 1248, 1251 (11th Cir. 2002) (per curiam), that “there is nothing
wrong with the government attempting to strengthen its case for conviction.” We
have held that neither a fictitious government-organized “reverse sting” operation
in which defendants agreed to break into a house to steal a large quantity of drugs,
nor an aggregation of separate quantities of crack cocaine purchased by the
defendant in small quantities on four separate occasions instead of stopping after
the first purchase, constitutes sentencing factor manipulation. See Sanchez, 138
F.3d at 1414; Govan, 293 F.3d at 1251. In light of Sanchez and Govan, the facts of
this case do not demonstrate manipulative conduct by the government.
Nelson’s claim that his drug addiction justified a substantial downward
departure is also without merit, as “[d]rug or alcohol dependence or abuse is not a
reason for a downward departure.” United States Sentencing Guidelines Manual §
5H1.4. While “a truly extraordinary post-arrest, pre-sentence recovery may exceed
the degree of recovery contemplated in section 3E1.1 and therefore justify a
downward departure,” United States v. Williams, 948 F.2d 706, 710-11 (11th Cir.
1991), nothing in the record indicates that Nelson made such a recovery.
Upon review of the record and consideration of the parties’ briefs, we find
that the district court did not err by declining to consider sentencing factor
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manipulation or Nelson’s drug addiction in fashioning his sentence. Accordingly,
we affirm.
AFFIRMED.
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