United States v. Presley

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0416p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
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No. 07-1147
v.
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KEITH PRESLEY, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-80756—Avern Cohn, District Judge.
Argued: October 23, 2008
Decided and Filed: November 24, 2008
Before: MOORE, CLAY, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Jennifer J. Sinclair, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan,
for Appellant. James W. Amberg, AMBERG & AMBERG, Keego Harbor, Michigan, for Appellee.
ON BRIEF: Jennifer J. Sinclair, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan,
for Appellant. James W. Amberg, AMBERG & AMBERG, Keego Harbor, Michigan, for Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant the United States of
America appeals the district court’s resentencing of Defendant-Appellee Keith Presley to 120
months of incarceration, a downward variance from his Guidelines range of 360 months to life.
Presley and his co-defendant, Kevin Davis, were found guilty of various counts arising from a drug
and money-laundering conspiracy, and both were sentenced to 360 months of incarceration. In
United States v. Davis, 430 F.3d 345 (6th Cir. 2005), we considered Presley’s and Davis’s appeals
of their convictions and sentences. We affirmed Presley’s conviction, but because certain evidence
against Davis was obtained in violation of the Fourth Amendment, we reversed the district court’s
denial of Davis’s motion to suppress and remanded for a determination of whether Davis’s
conviction should stand. We vacated both Presley’s and Davis’s sentences and remanded for
resentencing in light of Booker. On remand, the district court made a downward variance based on
the disparity between Presley’s Guidelines sentence and the 96-month sentence that Davis received
pursuant to an agreement with the government. In this appeal, the government argues that the
1
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district court erred in reducing Presley’s sentence based on the sentencing disparity, because Presley
and Davis were not similarly situated on remand. Because Presley’s sentence is both procedurally
and substantively reasonable, we AFFIRM.
I. BACKGROUND
The facts underlying Presley’s convictions are set forth in our previous opinion. Davis, 430
F.3d at 349-50, 358-60. We summarized the procedural background as follows:
On August 9, 2001, Presley, Davis, and several other codefendants were
indicted in the United States District Court for the Eastern District of Michigan.
Both Davis and Presley were charged with conspiracy to distribute and possession
with the intent to distribute more than five kilograms of cocaine (“Count One”), and
conspiracy to launder monetary instruments (“Count Twelve”). Davis was also
charged with money laundering (“Counts Thirteen and Fourteen”) and aiding and
abetting another codefendant in money laundering (“Count Fifteen”). Presley was
additionally charged with the use of a communication facility in committing a drug
offense (“Count Two”). The indictment alleged that the defendants were involved
in a large-scale drug trafficking operation in which both defendants bought and sold
large quantities of cocaine. The indictment further alleged that as part of this
operation, Davis would take proceeds from drug sales and purchase or lease real
estate and vehicles in the names of nominee owners in order “to conceal and disguise
the true nature, location, source, ownership, and control of the proceeds.” [Joint
Appendix (“J.A.”) at 73 (Superseding Indictment at 6)].
A jury trial was held, at the conclusion of which the jury found Presley guilty
on Counts One, Two, and Twelve (the charges on which he was indicted) and found
Davis guilty as to Counts One, Twelve, and Fifteen. Davis was sentenced to
concurrent terms of 240 months’ imprisonment as to Counts One and Twelve and a
consecutive term of 120 months’ imprisonment on Count Fifteen, for a total sentence
of 360 months’ imprisonment. Presley received concurrent sentences of
imprisonment for 360 months, 48 months, and 240 months on each count
respectively, for a total of 360 months’ imprisonment.
Davis, 430 F.3d at 350-51. Both Presley and Davis were found responsible for over 150 kilograms
of cocaine and were given a four-level enhancement for being a leader or organizer of the
conspiracy. “Each scored the same under the guidelines as to Offense Level,” but “Presley, because
of prior convictions, . . . scored Criminal History II, while Davis scored Criminal History I.” United
States v. Presley, No. 00-80756, 2006 WL 3950257, at *1 (E.D. Mich. Dec. 19, 2006).
Both Presley and Davis appealed their convictions and sentences. We affirmed Presley’s
conviction. Because we concluded, however, that Davis’s vehicle had been searched in violation
of the Fourth Amendment, we reversed the district court’s denial of Davis’s motion to suppress the
evidence obtained during the vehicle search and remanded Davis’s “case to the district court for a
determination as to whether Davis’s conviction still stands,” directing the district court to consider
whether evidence seized during subsequent searches was fruit of the poisonous tree or instead fell
under an exception to the exclusionary rule. Davis, 430 F.3d at 358. Both Presley’s and Davis’s
sentences were vacated and the cases remanded to the district court for resentencing in light of
United States v. Booker, 543 U.S. 220 (2005).
On remand, Davis filed a motion for a new trial, arguing in part that evidence seized from
the subsequent searches also should be suppressed. Facing the possibility of a retrial, the
government and Davis reached a sentencing agreement in which Davis agreed to withdraw his
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pending motion for a new trial and forfeit over $1.2 million, and the government agreed to vacate
the judgment on all counts except Count Twelve, the money-laundering conspiracy. The parties
agreed to a sentencing range of 87 to 112 months on this remaining charge. On October 25, 2006,
the district court resentenced Davis to 96 months in prison, three years of supervised release, and
forfeiture of any interest he had in over $2 million seized by the government.
As to Presley, the government submitted a Booker resentencing memorandum on September
28, 2006, which discussed the drug quantity and the leadership-role enhancement, concluded that
no applicable factors under 18 U.S.C. § 3553(a) took Presley’s case out of the “heartland” of drug
conspiracy cases, and requested that Presley be resentenced to 360 months of imprisonment. In
response, Presley pointed out several § 3553(a) factors favorable to him, including his good behavior
and efforts to better himself in prison and the disparity between the government’s recommended
sentence and that given to Davis and another codefendant, and asked for the mandatory-minimum
sentence of 120 months. An initial sentencing hearing was cut short when the district court,
expressing concern over the disparity between the treatment of Presley and that of Davis, instructed
the government to file a supplemental memorandum on this issue. The government’s supplemental
memorandum identified seven factors that distinguished Presley’s case from Davis’s such that the
sentencing disparity should not be considered in Presley’s resentencing.
At a second sentencing hearing held the next month, the district court disagreed with the
government and sentenced Presley to 120 months of incarceration. In a sentencing memorandum,
the district court addressed each of the government’s seven distinctions between Presley and Davis,
finding each either non-existent or not so great as to prohibit consideration of Davis’s sentence. The
district court then discussed the § 3553(a) factors and the considerations required of the district
court. The district court rejected most of Presley’s arguments, finding ample evidence in the record
to support the amounts of drugs attributed and the leadership enhancement, but did note Presley’s
efforts to rehabilitate himself in prison. The primary focus of the memorandum, however, was the
need to address the disparity between the 360-month Guideline sentence and Davis’s 96-month
sentence: “The most important consideration, however, in regard to the sentence imposed on
Presley is, however, the need to avoid an unwarranted disparity between his sentence and that
imposed on Davis with the agreement of the government.” Presley, 2006 WL 3950257, at *7. The
district court went on to discuss cases finding that codefendant sentencing disparity, rather than
national disparity, is a permissible factor to consider under 18 U.S.C. § 3553(a)(6). The district
court found that these considerations warranted an overall sentence of 120 months, the mandatory-
minimum sentence:
As discussed above, Presley and Davis were both involved in a large scale
cocaine conspiracy involving hundreds of kilograms of cocaine and millions of
dollars in cash. Both were tried and both were convicted by the same jury. By
happenstance, a small portion of the evidence at their trial was found to be
excludable as to Davis but not as to Presley. Accordingly, the Court on remand was
to review the overall evidentiary basis for the conviction of Davis to see if that
conviction could stand without the excluded evidence. The government had an
obligation to see if that case could be made. For reasons known only to the
government, it chose not to make the effort and entered into a compromise with
Davis which resulted in a significantly lower sentence for him; a “windfall” in the
words of the government.
As the Court of Appeals observed in [United States v.] Williams, [894 F.2d
208 (6th Cir. 1990)], it would violate the spirit of the guidelines and be particularly
inequitable for Davis to receive a 96 month sentence and Presley a 360 month
sentence for the same conduct. Booker gives the Court discretion to impose a
No. 07-1147 United States v. Presley Page 4
reasonable sentence sufficient, but no greater than necessary, to comply with the
purpose set forth in § 3553(a)(2).
The Court is exercising that discretion in a reasoned manner. It is for these
reasons that Presley has been sentenced overall to 120 months, the mandatory
minimum under Count 1.
Id. at *8-9. The government now appeals Presley’s sentence.
II. ANALYSIS
A. Standard of Review
“Post-Booker, we review a district court’s sentencing determination ‘under a deferential
abuse-of-discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th
Cir. 2007) (quoting Gall v. United States, --- U.S. ---, 128 S. Ct. 586, 591 (2007)). “In Gall, the
Supreme Court directed the Courts of Appeals to ‘first ensure that the district court committed no
significant procedural error.’” United States v. Klups, 514 F.3d 532, 536 (6th Cir. 2008) (quoting
Gall, 128 S. Ct. at 597). If the sentence is procedurally sound, “[w]e then consider ‘the substantive
reasonableness of the sentence imposed.’” United States v. Grossman, 513 F.3d 592, 595 (6th Cir.
2008) (quoting Gall, 128 S. Ct. at 597).
B. Reasonableness of Presley’s Sentence
1. Procedural Reasonableness
Procedural reasonableness requires that a district court “must properly calculate the
guidelines range, treat the guidelines as advisory, consider the § 3553(a) factors and adequately
explain the chosen sentence—including an explanation for any variance from the guidelines range.”
Grossman, 513 F.3d at 595 (citing Gall, 128 S. Ct. at 597). We have, however, “required courts
only to provide enough detail to allow an appellate court to conduct ‘meaningful appellate review’
and to conclude that the district court adequately considered the relevant statutory factors.” Id.
(quoting United States v. McGee, 494 F.3d 551, 556 (6th Cir. 2007)).
We conclude that the district court provided sufficient detail to allow meaningful review of
Presley’s sentence. First, the district court reviewed and specifically rejected the government’s
justifications for imposing the Guidelines sentence. Presley, 2006 WL 3950257, at *5-6 & nn. 3-9.
After stating that the court’s “beginning point is 18 U.S.C. § 3553(a)” and laying out the § 3553(a)
factors, the court further explained,
The Court in imposing a sentence first considers the sentencing guideline
range that would be applicable if the Court was required to follow the guidelines, and
then goes on to consider the factors set forth in 18 U.S.C. § 3553(a), particularly the
nature and circumstances of the offense, the need for the sentence imposed to reflect
the seriousness of the offense, to promote respect for the law and to provide just
punishment. The Court is also to consider the deterrent factor. Lastly, the Court
must consider the need to avoid unwarranted sentence disparity.
Id. at *6. The court then discussed “the factors outside of sentencing disparity,” rejecting Presley’s
arguments regarding the drug amount and leadership enhancement and listing “considerations in the
record to support a variance.” Id. at *7. Finally, the court explained at length what it described as
“[t]he most important consideration,” “the need to avoid an unwarranted disparity between
[Presley’s] sentence and that imposed on Davis with the agreement of the government.” Id. “While
the district court did not explicitly name the particular § 3553(a) factors he was considering when
No. 07-1147 United States v. Presley Page 5
imposing [Presley’s] sentence, the record does not demonstrate that he failed to consider them.”
United States v. Pearce, 531 F.3d 374, 385 (6th Cir. 2008). The district court’s explanation was
sufficient given “that the district court judges are involved in an exercise of judgment, not a ritual.”
Grossman, 513 F.3d at 595.
2. Substantive Reasonableness
“Because ‘[t]he sentencing judge is in a superior position to find facts and judge their import
under § 3553(a),’ this Court applies a great deal of deference to a district court’s determination that
a particular sentence is appropriate.” United States v. Mayberry, 540 F.3d 506, 519 (6th Cir. 2008)
(quoting Gall, 128 S. Ct. at 597). The Supreme Court has clarified the deferential standard for
review of sentences outside the Guidelines range:
While Gall permits appellate courts, “[i]n reviewing the reasonableness of a sentence
outside the Guidelines range,” to continue to “take the degree of variance into
account and consider the extent of a deviation from the Guidelines,” it offers two
important qualifications. 128 S. Ct. at 594-95. It “reject[s] . . . an appellate rule that
requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines
range.” Id. And it “reject[s] the use of a rigid mathematical formula that uses the
percentage of a departure as the standard for determining the strength of the
justifications required for a specific sentence.” Id.
Grossman, 513 F.3d at 596; see also Klups, 514 F.3d at 539; Bolds, 511 F.3d at 580-81. Overall,
the district court’s task is to “impose a sentence sufficient, but not greater than necessary, to comply
with the purposes” of the statutory sentencing scheme. 18 U.S.C. § 3553(a). “A sentence may be
considered substantively unreasonable when the district court selects a sentence arbitrarily, bases
the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an
unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508,
520 (6th Cir.), cert. denied, --- U.S. ---, 77 U.S.L.W. 3221 (2008).
Section 3553(a)(6) instructs sentencing courts to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct.” We have noted that “[s]ubsection 3553(a)(6) is concerned with national disparities among
the many defendants with similar criminal backgrounds convicted of similar criminal conduct.”
United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007). Because § 3353(a)(6) is not concerned
“with disparities between one individual’s sentence and another individual’s sentence, despite the
fact that the two are co-defendants,” id., “the district court is not required to consider that type of
disparity under § 3553(a)(6),” id. at 624 (emphasis added). “A district judge, however, may exercise
his or her discretion and determine a defendant’s sentence in light of a co-defendant’s sentence.”
Id.
The district court found the potential disparity between Presley’s and Davis’s sentences to
be the most important factor, noting that “it would violate the spirit of the guidelines and be
particularly inequitable for Davis to receive a 96 month sentence and Presley a 360 month sentence
for the same conduct.” Presley, 2006 WL 3950257, at *9.1 The government concedes that the
1
The government argues that, in addition to the sentence disparity, the district court improperly considered
Presley’s rehabilitative efforts while in prison in making a downward variance, drawing our attention to United States
v. Worley, 453 F.3d 706 (6th Cir. 2006), a case decided before Gall. In Worley, we upheld a district court’s
determination that post-sentencing rehabilitation was not a relevant factor in a Booker resentencing. We need not
consider the effect of Worley on this case, however, because, although it mentioned Presley’s post-sentencing
rehabilitation, the district court made clear that the primary factor upon which Presley’s sentence was based was the
disparity between Presley’s and Davis’s sentences.
No. 07-1147 United States v. Presley Page 6
district court may consider a sentencing disparity between similarly situated codefendants, but
argues that Presley and Davis were not similarly situated because, unlike Davis, Presley’s
convictions were affirmed, and, because the case against Davis was weakened on appeal, his
sentence was based on only one count of money-laundering conspiracy. But Davis’s convictions
were not overturned or vacated on appeal; our prior opinion reversed only the district court’s denial
of Davis’s motion to suppress and remanded for a determination of whether his conviction would
still stand. The district court was not unreasonable in considering Davis and Presley as having been
found guilty of similar conduct. Although the suppression of the evidence may have weakened the
government’s case against Davis, it is reasonable, particularly in light of the other evidence against
Davis, to find Davis just as culpable as he was found to be during the initial sentencing. Given that
a district court may consider for sentencing purposes conduct outside the conviction itself, there is
no abuse of discretion in the district court considering conduct that was found by a jury in
determining whether two defendants are similarly situated. See § 3553(a)(6) (warning against
sentence disparity between defendants “found guilty of similar conduct”).
The government further argues that Presley and Davis were not similarly situated because
Presley was in a higher criminal-history category than Davis, who had no prior arrests. The district
court did not abuse its discretion in finding that Presley’s “prior record was not so extensive as to
support a substantial difference” between his sentence and Davis’s sentence where the sentences
were driven primarily by drug quantity rather than criminal history. Presley, 2006 WL 3950257,
at *6 n.9. Moreover, Presley’s sentence on remand is twenty-four months longer than Davis’s,
indicating that the district court accounted for any dissimilarities. Overall, any disparities between
Presley and Davis were not so great as to make consideration of Davis’s sentence unreasonable in
determining Presley’s sentence.2
The cases cited by the government in which we upheld a district court’s refusal to consider
a codefendant-sentencing disparity are inapposite. See, e.g., Conatser, 514 F.3d at 526; Simmons,
501 F.3d at 623-24; United States v. Thompson, 218 F. App’x 413, 416-17 (6th Cir. 2007). The
government is now asking us to reverse the district court for considering codefendant-sentencing
disparity, a factor which was fully within the district court’s discretion to consider. As we have
previously emphasized,
Booker breathes life into the authority of district court judges to engage in
individualized sentencing within reason in applying the § 3553(a) factors to the
criminal defendants that come before them. If there is a pattern that emerges from
Rita, Gall and Kimbrough, it is that the district court judges were vindicated in all
three cases, and a court of appeals was affirmed just once—and that of course was
when it deferred to the on-the-scene judgment of the district court.
United States v. Vonner, 516 F.3d 382, 392 (6th Cir.) (en banc), cert. denied, --- U.S. ---, 129 S. Ct.
68 (2008).
2
The government has repeatedly argued that it should not be punished for exercising its discretion to reach an
agreement with Davis after their case against him was threatened by the suppression of key evidence. We emphasize
that we do not read the district court’s opinion as attempting to punish the government in any way. Any displeasure
expressed by the district court stemmed from the district court’s concern with the unfairness this presented to Presley
rather than a desire to punish the government. See, e.g., Presley, 2006 WL 3950257, at *8-9 (noting that the evidence
was excludable as to Davis but not Presley “[b]y happenstance,” and noting that largely disparate sentences “would
violate the spirit of the guidelines”); J.A. at 521-22 (11/30/06 Sent. Hr’g Tr. at 5) (“I’m saying that for the government
to maintain the position that Mr. Presley should still get a 30-year sentence in light of how it treated Mr. Davis is grossly
unfair and borders on immorality.”).
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III. CONCLUSION
Because the district court did not abuse its discretion in considering the disparity between
Presley’s 360-month Guidelines sentence and the 96-month sentence of his codefendant, we
AFFIRM Presley’s sentence of 120 months.