United States v. Lively

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5159
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
GREGORY LYNN LIVELY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:08-cr-00236-JFM-1)
Argued: December 1, 2009 Decided: August 4, 2010
Before TRAXLER, Chief Judge, and WILKINSON and MICHAEL, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Michael Joseph Leotta, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellant. Jason Wayne
Shoemaker, SHOEMAKER & CONNOR, LLC, Bethesda, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The government appeals Gregory Lively’s sentence of
one day in prison and a lifetime of supervised release for
distribution of child pornography. The government argues that
the district court was not authorized to impose a sentence below
the statutory mandatory minimum of five years because counsel
for the government did not make a substantial assistance motion
under 18 U.S.C. § 3553(e). The government further argues that
even if the district court was authorized, it erred by departing
below the mandatory minimum for reasons unrelated to substantial
assistance. 1 We agree with the government that the district
court is not authorized to impose a sentence below the statutory
minimum in the absence of a § 3553(e) motion. There remains a
question, however, as to whether the government was obligated to
make a § 3553(e) motion under the terms of Lively’s plea
agreement. If it was, the district court is authorized to
impose a sentence below the statutory minimum but only for
reasons related to Lively’s substantial assistance.
Accordingly, we vacate Lively’s sentence and remand for the
district court (1) to decide in the first instance whether the
1
Because we vacate Lively’s sentence on other grounds, we
do not consider the government’s additional arguments that the
district court could not “deem” served the one day in prison and
that Lively’s sentence was substantively unreasonable.
2
government was obligated to make a § 3553(e) motion and (2) to
impose an appropriate sentence.
I.
Lively first attracted the attention of law
enforcement when he purchased from an undercover website a video
of an eight-year-old girl being raped. Federal agents traced
the purchase to Lively’s computer and his home address. When
they arrived to make an arrest, they found a depressed young man
in his early 20s living out of his parents’ basement. Lively
offered no resistance, confessed his guilt, and pointed agents
to his computer where they found approximately 1300 images of
child pornography. Lively told law enforcement that his
involvement with child pornography was limited to trading
pictures and videos online, occasionally purchasing but never
selling or creating them. The pictures found on his computer
featured adults having sex with various prepubescent children,
some as young as eight years old. Lively said he felt guilty on
several occasions, but always returned to trading.
Lively eventually pled guilty to one count of
distribution of child pornography under 18 U.S.C.
§§ 2254(a)(2)(A), 2256. The plea agreement noted that Lively’s
sentence was limited by statute to a maximum term of 20 years
imprisonment and a minimum term of 5 years. Lively agreed to
3
cooperate with the government and, if instructed, to act in an
undercover capacity to assist in criminal investigations. He
accepted the government’s guideline calculation of offense level
37, which incorporated a three-level reduction for substantial
assistance. Regarding the obligations of the U.S. Attorney, the
agreement provided as follows:
If this Office determines that the Defendant has
provided substantial assistance in an investigation or
prosecution of others, and if he has fully complied
with all of his obligations under this agreement, this
Office will make a motion, pursuant to U.S.S.G.
§ 5K1.1 and 18 U.S.C. § 3553(e), requesting that the
Court sentence the Defendant in light of the advisory
factors set forth in § 5K1.1(a)(1)-(5) and requesting
a downward departure of up to two (2) levels. The
Court is authorized to grant such a departure pursuant
to 18 U.S.C. § 3553(e). This Office shall have sole
discretion in determining whether the Defendant has
provided such substantial assistance and, therefore,
whether to make any motion pursuant to § 5K1.1 and 18
U.S.C. § 3553(e). . . . If this Office makes a motion
for a departure under § 5K1.1 and 18 U.S.C. § 3553(e),
the Defendant is not bound by the departure level
recommended by this Office. . . . It is understood
that, even if such a motion is made, the sentence to
be imposed on the Defendant remains within the sole
discretion of the Court.
J.A. 10-11. The agreement also provided that the U.S. Attorney
“waives any right to appeal from any sentence within or above
the advisory guidelines range resulting from an adjusted base
offense level of 35.” J.A. 11. The agreement would not,
however, constrain the U.S. Attorney from appealing a sentence
“that is illegal or that . . . is less than any applicable
statutory mandatory minimum provision.” J.A. 11.
4
At sentencing Lively put on several witnesses,
including members of his family and his therapist. They
testified that he had recently been making great strides in
therapy and that he was not a danger to society. Drawing on the
therapist’s testimony in particular, defense counsel argued that
no jail time and a sentence of lifetime supervised release was
appropriate.
The government moved for a two-level departure under
§ 5K1.1 and advocated for an offense level of 35 and a sentence
of 168 months — the low end of the guideline range for offense
level 35, criminal history category I. The government told the
court that Lively had provided substantial assistance to the
government by allowing federal agents to use his online screen
name and related information to investigate two of his child
pornography trading partners. One of these partners was
prosecuted and sentenced to 30 years in prison for the
distribution of child pornography. At no point, however, did
the government expressly make a motion, either verbally or in
writing, under § 3553(e).
The district court asked the government about the
existence of a mandatory minimum and the court’s authority to
sentence below that minimum. The following colloquy transpired:
THE COURT: Is there a mandatory minimum?
5
MS. GREENBURG: Your Honor, there’s a five-year
mandatory minimum, but of course, there is a 5K
motion.
THE COURT: Which takes it under?
MS. GREENBURG: Your Honor, the position of the
office, I hate to — the position of the office is that
the 5K only gets it — because the advisory guideline
range is well above the mandatory minimum, it gets
down the two-levels doesn’t get below the —
THE COURT: What’s the legality of that? I mean,
some motions for downward departure — I mean, there’s
a legal question here, whether or not a motion for
cooperation takes it under the mandatory minimum.
MS. GREENBURG: If the cooperation is of — to the
extent to get below the mandatory minimum. In this
case the Court would have to find that the cooperation
was worth —
THE COURT: That’s what the state of the law is?
MS. GREENBURG: I believe so.
J.A. 76. Shortly after this colloquy, the district court
announced its sentence.
The district court imposed a sentence of one day of
imprisonment and a lifetime of supervised release. Although
Lively had not previously been incarcerated, the district court
“deemed” the one day of imprisonment to have already been
served. The district court began its explanation of the
sentence by granting the government’s motion for a downward
departure. Instead of departing downward by two levels as
recommended by the government, the court departed downward by
eleven levels, reasoning that “the two levels suggested by the
6
Government clearly is inadequate, since [Lively’s] cooperation
resulted in a 30-year incarceration of someone who was molesting
their grandchildren.” J.A. 80-81. Believing an eleven-level
departure brought Lively’s range below the mandatory minimum
(which would have required a twelve-level departure), the court
then proceeded to vary the sentence all the way down to one day
of imprisonment. In explaining the variance below the statutory
minimum, the district court diligently applied the § 3553(a)
factors. Finally, the court imposed a lifetime of supervised
release under terms including the installation of monitoring
software on computers in Lively’s home.
After announcing its sentence, the district court
acknowledged that there remained a “real question [as to]
whether I’m properly applying the sections — the factors under
3553, taking the guidelines into account.” J.A. 92.
Ultimately, however, the court concluded that “this sentence is
the right sentence.” J.A. 95. The government now appeals.
II.
We agree with the district court that the primary
issue is whether it correctly applied § 3553. We also agree
with the parties that, on this issue, United States v. Allen,
450 F.3d 565 (4th Cir. 2006) controls. Our interpretation of
7
Allen, however, requires a different result from that reached by
the district court and that requested by either party.
In Allen we held that district courts could not
sentence defendants below a statutory minimum unless §§ 3553(e)
or (f) permitted them to do so. 450 F.3d at 568. Section
3553(f) does not apply to this case. Accordingly, Allen’s
holding requires this panel to vacate and remand unless the
conditions of § 3553(e) are met. That provision reads:
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. Such sentence shall be imposed
in accordance with the guidelines and policy
statements issued by the Sentencing Commission
pursuant to section 994 of title 28, United States
Code.
Citing Melendez v. United States, 518 U.S. 120 (1996), the panel
in Allen held that § 3553(e) was not satisfied if the government
merely moved for a departure under § 5K1.1. Allen, 450 F.3d at
568. Rather, “before a district court could sentence below a
statutory mandatory minimum, the government must specifically
move [under § 3553(e)] for such departure.” Id.
Applying this rule to the facts before it, the panel
in Allen held that the district court had erred because it
departed below the statutory minimum in the absence of a
§ 3553(e) motion. Id. at 570. In determining that no motion
8
had been made, the panel relied primarily on the fact that the
government had made no mention of § 3553(e) at sentencing or in
its briefs. It also noted that the plea agreement had referred
to the statutory minimum but not § 3553(e), and that the
agreement contained an exception to the government’s waiver of
appeal for sentences below the statutory minimum. Id. at 569.
The panel rejected the argument that the district
court was authorized to depart below the mandatory minimum
because the government had intended to make a motion under
§ 3553(e). Counsel for the government actually admitted at oral
argument: (1) that the government had intended to move under
§ 3553(e); (2) that it was official policy for the motions to be
made with 5K1.1 motions; and (3) that the parties and the
district court had worked from the premise that the § 5K1.1
motion encompassed § 3553(e). Counsel for the defendant further
represented that his client would not have pled guilty had the
court been constrained. The panel nevertheless interpreted
§ 3553(e) strictly and held that no motion had been made and
that remand was therefore necessary. Id.
In a final footnote, the panel observed that “[g]iven
counsel for the government's concession at oral argument that he
intended the § 5K1.1 motion to include, albeit sub silentio, a
§ 3553(e) motion as well, one would assume that the government
has obligated itself to do so on remand.” Id. at 570 n.5.
9
Assuming the government made that motion on remand, the panel
emphasized that the district court should still calculate the
guideline range and assess under the § 3553(a) factors whether a
guideline sentence would be appropriate.
We think it is clear from Allen that the government
did not make a § 3553(e) motion in this case. Section 3553(e)
was never mentioned during the sentencing hearing, and no
written motion citing § 3553(e) was submitted to the court.
Regardless of what the government intended at the time — and
unlike in Allen, the government here denies that it ever
intended to make a motion under § 3553(e) — it did not make a
§ 3553(e) motion. Accordingly, the district court was not
authorized to depart or impose a variance below the statutory
minimum. 2
Lively argues that Allen is distinguishable because
the plea agreement in that case did not mention § 3553(e) while
the plea agreement in this case does. We do not think this
difference is material. The reference in the plea agreement to
the government making a motion “under § 5K1.1 and 18 U.S.C.
2
Lively argues that even if § 3553(e) did not authorize the
imposition of a sentence below the statutory minimum, the
district court retains discretion to impose a sentence outside
the statutory range under United States v. Booker, 543 U.S. 220(2005). This argument is foreclosed by circuit precedent.
United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005).
10
§ 3553(e)” suggests that the government intended to make both
motions upon a showing of substantial assistance. It does not
establish that the government actually made such a motion.
Similarly, the colloquy concerning the mandatory minimum that
transpired between the district court and the government
suggests only that the government believed a § 5K1.1 motion
permitted the district court to depart below the mandatory
minimum. J.A. 76 (“Your Honor, there’s a five-year mandatory
minimum, but of course, there is a 5K motion.”); id. (“If the
cooperation is of — to the extent to get below the mandatory
minimum. In this case the Court would have to find that the
cooperation was worth [an amount taking it below the
minimum].”). To the extent Lively is arguing that we should
imply from this colloquy that the government in fact made a
§ 3553(e) motion, we decline to do so. There are no implied
§ 3553(e) motions. Either the government expressly makes the
motion or it doesn’t.
The reference in the plea agreement to the government
making a motion “under § 5K1.1 and 18 U.S.C. § 3553(e)” is not,
however, meaningless. Indeed, we think that, as in Allen, the
government may have been obligated to make a § 3553(e) motion.
The plea agreement expressly provides that the government “will
make a motion, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C.
§ 3553(e)” if it determines that Lively provided substantial
11
assistance. If the government had wanted to reserve discretion
to make one or the other or both motions even after finding
substantial assistance, it could have simply replaced the “and”
with an “or”. In fact, the phrase appears three times in the
relevant portion of the plea agreement, and the word “and” is
used in each.
We need not decide this issue here or address the
government’s position at oral argument that, read as a whole,
the plea agreement is best read to give the government
discretion to make a § 3553(e) motion. The issue was not
briefed by the parties, and interpreting the agreement may
require findings of fact. Accordingly, the district court on
remand should decide in the first instance whether the
government was contractually obligated to make a § 3553(e)
motion after determining that Lively provided substantial
assistance.
Finally, we note that if the government was obligated
to make a § 3553(e) motion, the district court may not, as it
did here, justify imposing a sentence below the statutory
minimum based on the § 3553(a) factors. District courts have
discretion to impose a non-guideline sentence between the
statutory maxima and minima, provided the sentence comports with
procedural and substantive reasonableness. See United States v.
Curry, 523 F.3d 436, 439 (4th Cir. 2008). Applying the
12
§ 3553(a) factors is just one requirement of procedural
reasonableness. If the government was obligated to make a
§ 3553(e) motion, then and only then is the district court
authorized to impose a sentence below the mandatory minimum.
Furthermore, while the district court may justify imposing the
statutory minimum based solely on the § 3553(a) factors, it may
justify imposing a sentence below the minimum only by reference
to the defendant’s substantial assistance. United States v.
Hood, 556 F.3d 226, 234 n.2 (4th Cir. 2009); 18 U.S.C.
§ 3553(e). “As the plain language of the statute makes clear,
§ 3553(e) allows for a departure from, not the removal of, a
statutorily required minimum sentence.” United States v.
Pillow, 191 F.3d 403, 407 (4th Cir. 1999). “[T]he district
court should use the factors listed in § 5K1.1(a)(1)-(5) as its
guide when it selects a sentence below the statutorily required
minimum sentence.” Id.
III.
For the reasons stated, we vacate Lively’s sentence
and remand for the district court both to determine whether the
government obligated itself to make a § 3553(e) motion and to
impose a new sentence consistent with this opinion.
VACATED AND REMANDED
13