United States v. Solomon Johnson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0925n.06
FILED
Nos. 10-1725, 10-1727
Aug 20, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
SOLOMON HAKEEM JOHNSON, )
)
OPINION
Defendant-Appellant. )
_______________________________________ )
Before: COLE and MERRITT, Circuit Judges, and VARLAN, District Judge.*
THOMAS A. VARLAN, District Judge. Resolving charges from various indictments
globally, defendant-appellant Solomon Hakeem Johnson (“Johnson”) pled guilty to charges of
conspiracy to possess and possess with intent to distribute cocaine base, possession with intent to
distribute an unspecified quantity of cocaine base, and two charges of armed robbery. A separate
indictment charging Johnson with a third count of bank robbery was dismissed without prejudice.
After hearing argument on Johnson’s objections to the Presentence Investigation Report (“PSR”) at
the sentencing hearing, the district court applied a two-level reduction for acceptance of
responsibility under U.S. Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) § 3E1.1(a),
but declined to apply the additional one-level decrease available under U.S.S.G. § 3E1.1(b). When
calculating the offense level, the district court also applied the two-point enhancement for
*
The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
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obstruction of justice under U.S.S.G. § 3C1.1. The district court sentenced Johnson to a term of
imprisonment of 240 months, to be followed by five years’ supervised release. The court set
restitution at $105,933.92, with a mandatory special assessment of $400.00.
On a consolidated appeal from the sentences imposed in his two armed robbery cases,
Johnson argues that (1) the district court erred in declining to award a third one-level reduction
pursuant to U.S.S.G. § 3E1.1(b), when it found that one of Johnson’s guilty pleas was untimely; and
(2) the district court erred when it applied a U.S.S.G. § 3C1.1 enhancement for obstruction of justice
under the facts of the case because no statement made by Johnson affected the administration of
justice. For the reasons explained herein, we affirm the judgment of the district court with regard
to the obstruction of justice enhancement, and vacate and remand for resentencing with regard to the
additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b).
I. BACKGROUND
Johnson’s appeal involves three criminal cases against him, all brought in the Western
District of Michigan. On February 5, 2009, a federal grand jury returned an indictment against
Johnson and others, charging him in two counts with conspiring to possess with intent to distribute
cocaine base (Case No. 1:09-CR-29). On April 16, 2009, the grand jury returned a six-count
superseding indictment in the same case, charging Johnson and others in count one with conspiring
to possess and distribute 50 grams or more of cocaine base, and alone in count five with distribution
of an unspecified quantity of cocaine base. Also on April 16, 2009, a single-count indictment
charging Johnson, Ronald Lavar Johnson (“Ronald Johnson”), and Keith Nickerson (“Nickerson”)
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with armed robbery of a bank was returned (Case No. 1:09-CR-123). On May 20, 2009, the grand
jury returned a single-count indictment, charging Johnson and one other individual with another
armed robbery of a bank (Case No. 1:09-CR-155). Finally, on October 8, 2009, Johnson, along with
Ronald Johnson and Nickerson, was charged in a two-count indictment with a third armed robbery
of a bank (count one), and conspiracy to obstruct justice and impede the prosecution in Case No.
1:09-CR-123 (count two), the other case charging the three co-defendants with armed robbery (Case
No. 1:09-CR-311).
On September 16, 2009, Case No. 1:09-CR-123 was dismissed on motion from the
government without prejudice.1 In proceedings before the magistrate judge on November 5, 2009,
Johnson pled guilty and admitted to the robberies charged in Case Nos. 1:09-CR-155 and 1:09-CR-
311. At the same hearing, Johnson pled guilty to count five of the superseding indictment in Case
No. 1:09-CR-29, which charged him with distribution of an unspecified quantity of cocaine base on
a certain date. At the November 5, 2009 hearing, Johnson also attempted to enter guilty pleas to
count two of the indictment in Case No. 1:09-CR-311, charging him with obstruction of justice, and
count one of the superseding indictment in Case No. 1:09-CR-29, charging him with conspiracy to
possess and possess with intent to distribute 50 grams or more of cocaine base. However, after
questioning Johnson, the magistrate judge rejected his pleas to each of those counts. As to count one
of the superseding indictment in Case No. 1:09-CR-29, the magistrate judge was not satisfied with
1
The charge forming the basis for Case No. 1:09-CR-123 appears to have been the same
armed robbery of a bank charged in count one of Case No. 1:09-CR-311, to which Johnson pled
guilty on November 5, 2009.
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the factual basis for the quantity of cocaine base required to satisfy the elements of the statute under
which he was charged. Based on statements made by Johnson at the hearing, the magistrate judge
likewise found an insufficient factual basis for his guilty plea to count two of Case No. 1:09-CR-311,
the obstruction of justice charge.
The basis for the obstruction of justice charge, as indicated by the government at the plea
hearing, was Johnson, Ronald Johnson, and Nickerson’s alleged intimidation of Raymond Collins
(“Collins”) while the four were incarcerated together at Newaygo County Jail. After forming a belief
that Collins was cooperating with the government, Johnson and his co-defendants allegedly went
through his belongings and found confirmation for their belief. During this search, they also found
the name, address, and a photograph of Collins’s female friend, and Ronald Johnson allegedly
drafted a threatening letter to her, which she provided to the Federal Bureau of Investigation (“FBI”).
Afterward, the three defendants approached the corrections officers and informed them that for his
safety, Collins should not remain in the cell with them. At the plea hearing, Johnson admitted to
having rummaged through Collins’s belongings and informing the guard that Collins should not be
brought back “in order to avoid conflict.” (Plea Hr’g 41). Johnson denied having any involvement
in the drafting or having knowledge of the contents of the letter to Collins’s female friend.
When the magistrate judge questioned Johnson about the facts of the bank robbery charged
in count one of the indictment in Case No. 1:09-CR-311, to which he successfully pled guilty,
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Johnson stated that he conspired to and committed the robbery with Duane Perry (“Perry”),2 who was
not charged in the indictment in that case, and a female driver. He further indicated that Perry had
died prior to the November 5, 2009, hearing.
The district court entered a case management order instructing the parties to schedule any
pleas to be entered at least one week prior to the final pretrial conference, and further advising that
any defendant not entering a guilty plea prior to the specified date would not be eligible for a three-
level reduction under U.S.S.G. § 3E1.1. The parties appeared for a scheduled final pretrial
conference on November 23, 2009, and at that hearing, Johnson successfully entered a guilty plea
to count one of the superseding indictment in Case No. 1:09-CR-29, charging him with conspiracy
to possess and possess with intent to distribute 50 grams or more of cocaine base.3
Utilizing the Guidelines, the PSR consolidated all three cases in which he pled guilty and
recommended that Johnson’s adjusted offense level was 32, with an accompanying criminal history
category of VI. The PSR included no reduction for acceptance of responsibility but did include a
two-level increase in offense level as an adjustment for obstruction of justice pursuant to U.S.S.G.
§ 3C1.1, basing this recommendation on Johnson’s representations that his deceased cousin, Perry,
committed one of the charged robberies with him. The PSR indicated that Nickerson informed law
2
Perry’s first name is spelled several different ways throughout the record, including “Dwain”
and “Duane.”
3
After Johnson entered a guilty plea to count one in Case No. 1:09-CR-29, the only remaining
charge set for trial was count two of 1:09-CR-311, the conspiracy to obstruct justice charge. The
government moved to dismiss that charge on December 28, 2009, and the district court ordered the
dismissal on December 29, 2009.
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enforcement that Johnson conspired with Ronald Johnson and Nickerson for Johnson to take the
blame for the robbery and to implicate Perry, as he was already deceased and had a stature similar
to Ronald Johnson’s. During his interview with the probation officer, Johnson continued to claim,
as he did at the plea hearing on November 5, 2009, that he committed the armed robbery charged in
1:09-CR-311 with Perry alone and that Ronald Johnson and Nickerson were not involved, despite
his learning that the other two each pled guilty to the robbery charge. After adding multiple-count
adjustments pursuant to U.S.S.G. § 3D1.4, according to the PSR, the appropriate offense level was
35, which together with a criminal history category of VI, yielded an advisory Guidelines range of
292 to 365 months’ imprisonment.
In relevant part to this appeal, prior to his sentencing hearing, Johnson objected to the PSR’s
non-application of a three-level reduction for acceptance of responsibility, claiming that he entered
timely guilty pleas in all cases and that he was honest in revealing all facts known to him. Johnson
also objected to the recommended two-level enhancement for obstruction of justice because he
maintained that he committed the robbery with Perry and was honest in reporting as such, and
because he properly admitted his personal involvement in the robbery in question. At the sentencing
hearing on May 20, 2010, the government agreed with the recommended Guidelines range and other
findings in the PSR.4
4
Johnson did not enter into plea agreements in any of his cases.
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Prior to announcing the sentence imposed, the district court heard argument on Johnson’s
objections to the PSR.5 Addressing the objection related to acceptance of responsibility, Johnson’s
counsel asserted that from the beginning of her representation of him, “it was never about whether
or not he was actually guilty of the crime” and that she always knew that Johnson intended to plead
guilty. (Sent. Hr’g 9). Johnson’s counsel addressed that as she understood the situation, what was
preventing him from obtaining the offense-level reduction for acceptance of responsibility was that
he told the court that he committed one of the armed robberies with Perry, rather than with his co-
defendants. Counsel contended that Johnson had always indicated to her that he committed the
robbery with Perry, and she proffered that Johnson had committed many robberies, as indicated in
the PSR. She also suggested that he may have been confused as to which specific robbery was
charged in count one of Case No. 1:09-CR-311. Counsel asserted that Johnson maintaining that he
committed the robbery with Perry did not benefit him in any way and did not change the fact that he
was personally accepting responsibility for the charged robberies. As to the obstruction of justice
enhancement, Johnson’s counsel argued that it overlapped with the acceptance of responsibility issue
in that it related to Johnson’s having stated under oath that he committed the robbery with Perry.
Counsel again asserted that Johnson maintained throughout all proceedings that he committed the
5
In addition to the two objections pertinent to this appeal, the district court ruled that it would
apply a one-to-one ratio of crack to powder cocaine, in essence granting Johnson’s objection to the
weight of the drugs. Additionally, the district court overruled Johnson’s objection to his perceived
double counting for restraint of the bank employee under U.S.S.G. § 2B3.1(b)(4)(B), as well as his
objections to adjustments based on robbery involving a financial institution and the amount of money
stolen during the robberies.
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robbery with Perry, and she contended that his doing so did not obstruct justice because his
assertions did not impede the investigation in any way.
The government responded that the PSR’s recommendation that the acceptance of
responsibility reduction not be granted was proper “because the guideline clearly says that if you
don’t truthfully admit the conduct or you falsely deny relevant conduct, then you are not entitled to
acceptance of responsibility.” (Sent. Hr’g 18). In bolstering this point, the government pointed to
the fact that Johnson never admitted to Ronald Johnson and Nickerson’s involvement in the robbery.
The district judge challenged the claim that this counted as Johnson’s relevant conduct under the
Guidelines, stating:
I abhor the fact that he committed perjury, in all likelihood; I mean there is just no
question based on everything I have read, based on the fact that the other two men
have entered guilty pleas. But for purposes of scoring this offense level, or this
reduction, it really - - and maybe it’s splitting hairs - - but he did truthfully admit his
conduct. He did not in any way, as I understand it, and I, again, I have read the
transcripts, the fact that he misrepresented, flat out lied under oath, which, you know,
I think would have opened him up to a perjury charge, I don’t see that as failing to
accept responsibility. That’s what this section of the guidelines is all about, I think.
(Sent. Hr’g 19). The government then discussed the letter writing to Collins’s girlfriend intended
to silence Collins, before clarifying that an acceptance of responsibility reduction should not be
awarded because 1) Johnson lied about the others involved in the robbery, and 2) he engaged in
obstruction of justice by participating in writing the letters to Collins’s girlfriend and by lying to the
court and to the probation officer preparing the PSR. Counsel for the government contended, “that’s
normally the general rule is you do not get acceptance of responsibility if you’ve engaged in
obstruction of justice.” Sent. Hr’g 23–23).
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In announcing her rulings on Johnson’s objections pertinent to this appeal, the district judge
stated:
First of all, with regard to the acceptance of responsibility and timely plea, I’m going
to grant the objection raised by the defense because I believe, number one, that in a
strict reading of 3E1.1, even if we look at the relevant conduct issue, I think the
defendant is entitled to that reduction in offense level. And, number two, I think that
- - I think it’s clear that he is entitled to it. Okay.
With regard to the obstruction of justice under 3C1.1, I think that’s a very close call
because of all of the factual underpinnings in this case. But I do think that the
government makes its arguments very well; that there was this attempt not only to lie
about the participation, the joint participation, but all of the other things that were
going on around that. So I’m going to overrule and deny that objection.
(Sent. Hr’g 35).
When preparing to announce the adjusted Guidelines range and sentence imposed by the
court, in reviewing the offense level reduction in light of the district judge’s rulings on Johnson’s
objections, the probation officer present at the hearing asked the court whether she was granting
Johnson a “two-level or a three-level decrease” for acceptance of responsibility. (Sent. Hr’g 43).
At first the judge answered that the decrease was three offense levels, but she then stated, “Although
I should maybe back up on that.” (Id.). The court then inquired into the timeliness of the plea to the
drug conspiracy charge from Case No. 1:09-CR-29, the one in which his plea was initially rejected
on November 5, 2009. Counsel for the government pointed out that Johnson ended up pleading in
front of the district judge at the pretrial conference on November 23, 2009, only one week before the
trial date, which was set for December 1, 2009. The district judge determined that the plea to that
charge was not timely, after considering the fact that the government had already moved witnesses
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in custody to the area to testify and had filed its trial brief and proposed jury instructions at the time
of the plea at the pretrial conference. The attorney for the government stated that once he had done
such preparations in a case, he “typically would not ask for the additional point” under U.S.S.G. §
3E1.1(b). (Sent. Hr’g 44).
At that point, defense counsel argued that the government was aware that Johnson planned
to enter a guilty plea to the charge in question and that he had indicated his intention to do so “early
on.” (Id. at 45). Defense counsel further asserted that she felt she had put the government “on notice
that we were going to do everything in our power to come to some sort of a resolution on the drug
case, in as timely a manner as possible[.]” (Id.). The clerk then pointed out to the judge that her
Fifth Amended Case Management Order in the case stated that:
This Court cannot allocate its resources efficiently if it must open court for a final
pretrial conference. Therefore, if court is open for a final pretrial conference, even
if a defendant pleads guilty at the time set for the final pretrial conference, the
defendant will not receive the one-level reduction in offense level described in
U.S.S.G. 3E1.1(b).
(Id. at 45–46). After hearing that, the court remarked that the quote from the case management order
“pretty much forecloses the additional point [under U.S.S.G. 3E1.1(b)].” (Id. at 46).
The final adjusted total offense level determined by the court was 32, with a criminal history
category of VI, rendering an advisory imprisonment range of 210 to 262 months of imprisonment,
with three to five years of supervised release, a fine range of $17,500 to $5 million, which was
waived, restitution of $105,993.92, and a mandatory special assessment of $400. The district court
sentenced as follows:
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So pursuant to the Sentencing Reform Act of 1984, as to docket number 1:09-CR-29,
Count 1, the drug conspiracy, the mandatory minimum of ten years imprisonment is
imposed.
As to docket number 1:09-CR-29, Count 5 the drug possession with intent to
distribute, I think that’s a fairly insignificant part of this case, and my sentence on
that charge is 60 months.
As to docket number 1:09-CR-155, armed bank robbery, I think it’s pretty clear that
my thought is that this offense is a serious one and deserves serious punishment.
And my sentence there is for 240 months imprisonment.
And, likewise, docket number 1:09-CR-311, the second armed robbery charge, 240
months imprisonment.
All of these sentences to run concurrently and to be followed by five years of
supervised release subject to standard conditions or reporting and remaining law
abiding.
(Id. at 62-63). This timely appeal followed.
II. ANALYSIS
A. Obstruction of Justice
We first address Johnson’s argument that the district court erred in applying a two-level
increase for obstruction of justice under U.S.S.G. § 3C1.1. When reviewing a district court’s
application of an obstruction of justice enhancement under U.S.S.G. § 3C1.1, “we employ a
three-step process of review.” United States v. Roberts, 243 F.3d 235, 237 (6th Cir. 2001) (citation
omitted). The three steps are as follows:
First, this Court applies a clearly erroneous standard to the district court’s findings
of fact with respect to the enhancement. Second, a district court’s determination of
whether facts constitute obstruction of justice is a mixed question of law and fact that
requires de novo review. Third, once there has been a finding that the defendant
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obstructed justice, application of the enhancement is mandatory, so review of the
enhancement at that point is de novo.
United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (citations omitted). In light of Buford
v. United States, 532 U.S. 59, 66 (2001), this Court also gives “due deference” to the district court’s
application of the Guidelines to the facts of the particular case. Id. at 473; see also United States v.
Cline, 362 F.3d 343, 350 (6th Cir. 2004).
Johnson asserts that an attempt to obstruct justice requires specific intent and an overt act
constituting a substantial step toward the commission of the obstruction. Johnson contends that no
actual obstruction of justice occurred when he, Ronald Johnson, and Nickerson discussed the fact
that Johnson would tell the FBI that he and his dead cousin committed the robbery charged in Case
No. 1:09-CR-311 together. This assertion is based on Johnson’s argument that the record contains
no indication that law enforcement ever investigated or acted upon his claims at the plea hearing and
during the presentence investigation for the PSR, that he had committed the robbery in question with
his cousin, rather than with his co-defendants. The premise for this argument is that Johnson,
Ronald Johnson, and Nickerson were all charged prior to Johnson’s assertion at his plea hearing, and
that Ronald Johnson and Nickerson had both already pled guilty at the time of his statements in
preparation of the PSR. Johnson thus claims that the statements he made about his cousin’s
involvement or the lack of involvement of his co-defendants were moot and irrelevant to his co-
defendants’ cases, so the statements had no potential to obstruct justice. As Johnson proceeds under
an assumption that his two-level enhancement under § 3C1.1 is based on his attempt to obstruct
justice, he claims that any statements made cannot be considered such an attempt since it was
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essentially impossible for him to impact law enforcement’s case at the points at which they were
made.
The government responds that the district court did not clearly err when it applied the two-
level obstruction of justice increase because of the defendant’s alleged involvement in the sending
of threatening letters, and because of Johnson’s false statements to the district court and to the
probation officer that Perry, rather than his co-defendants, committed one of his charged robberies
with him. The government asserts that false statements made to the court during guilty pleas may
serve as the basis for increases under § 3C1.1 and that the district court’s finding that Johnson lied
under oath during his guilty plea rendered the enhancement proper.
A two-level enhancement for obstruction of justice is appropriate where “the defendant
willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice
during the course of the investigation, prosecution, or sentencing of the instant offense of
conviction[.]” U.S. Sentencing Guidelines Manual § 3C1.1 (2008). Application Note 4 of § 3C1.1
contains a “non-exhaustive list” of the types of conduct to which the obstruction of justice
enhancement applies. The application note instructs, in relevant part, that the enhancement is
appropriate where the defendant has threatened or intimidated a co-defendant or witness, directly or
indirectly, or attempted to do so, where the defendant has provided materially false information to
a judge or magistrate judge, and where the defendant has provided materially false information to
a probation officer related to a presentence report. U.S. Sentencing Guidelines Manual § 3C1.1 cmt.
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n.4(a), (g), (h). The burden is on the government to prove obstruction of justice by a preponderance
of the evidence. United States v. Dunham, 295 F.3d 605, 609 (6th Cir. 2002) (citations omitted).
In this case, in finding that the obstruction of justice enhancement applied, the district court
found “that there was this attempt not only to lie about the participation, the joint participation, but
all of the other things that were going on around that.” (Sent. Hr’g 35). Earlier in the sentencing
hearing, the court stated that Johnson “in all likelihood” “committed perjury” based on everything
the judge had read about the case, including the fact that Ronald Johnson and Nickerson entered
guilty pleas in the case in which they were charged with committing armed robbery with Johnson,
and that Johnson “misrepresented, flat out lied under oath” about their involvement in the robbery.
(Id. at 19).
Moreover, in mentioning “all of the other things that were going on around that,” the district
court was likely referring to the threatening letters written by Ronald Johnson, the drafting of which
Johnson was present during and may have played a part in. However, we need not speculate in order
to reach a decision here. That the district court found that Johnson attempted to lie about “the joint
participation” is sufficient for an application of the obstruction of justice enhancement. This is
particularly true in light of the fact that the statements made by Johnson about Perry’s involvement
in the robbery charged in Case No. 1:09-CR-311, which the district court found to be false, were
made to both a judge under oath and to the probation officer preparing the PSR. See U.S. Sentencing
Guidelines Manual § 3C1.1 cmt. n.4(g), (h).
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The government was required to prove obstruction of justice by a preponderance of the
evidence at the sentencing hearing, and the district court’s finding that it met that burden is entitled
to due deference. See Buford, 532 U.S. at 66; Dunham, 295 F.3d at 609. The district court’s finding
that Johnson lied under oath about the participation of his co-defendants was not clearly erroneous
when reviewed in light of the fact that each of the co-defendants entered a guilty plea to that charge.
We therefore find that the district court did not err in applying the two-level enhancement
for obstruction of justice under U.S.S.G. § 3C1.1.
B. Acceptance of Responsibility
We next turn to Johnson’s argument that the district court erred in denying him a one-level
reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b). The district court’s
decision to deny Johnson an additional one-level reduction for acceptance of responsibility is entitled
to great deference on review. U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.5 (2008). The
decision is reviewed for clear error. United States v. Webb, 335 F.3d 534, 537–38 (6th Cir. 2003).
A district court’s decision is clearly erroneous only if this court “is left with the definite and firm
conviction that a mistake has been committed.” United States v. Boudreau, 564 F.3d 431, 435 (6th
Cir. 2009) (citations and quotation marks omitted).
Johnson challenges the denial of an additional one-level reduction for acceptance of
responsibility for a lack of timeliness under § 3E1.1(b) because he entered timely guilty pleas in Case
Nos. 1:09-CR-311 and 1:09-CR-155 and because all parties were aware that he intended to plead
guilty to the charge remaining in Case No. 1:09-CR-29. In this regard, Johnson contends that the
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district court committed legal error when it used its decision that his untimely plea made him
ineligible for the additional § 3E1.1(b) reduction in Case No. 1:09-CR-29, to also deny him the
additional point reduction in Case No. 1:09-CR-155, to which he timely pled. Johnson further
argues that the government did not take a firm position on whether Johnson should have been
entitled to an additional point reduction. Johnson contends that the district judge “decided the plea
was not timely regardless of the government’s position because it was not entered until the time of
the final pretrial conference, finding the court’s Case Management Order and the ‘failing one fails
them all premise’ to be dispositive of the issue.” (Id. at 22–23). The government counters that the
fact that the government did not move for the third-level decrease, as required by the Guidelines,
directs that the district court did not err when it declined to grant the additional reduction. The
government further asserts that the district court provided the legitimate reason for denying Johnson
the third-level reduction under § 3E1.1(b), that Johnson did not enter his guilty plea in Case No.
1:09-CR-29 “until after the deadline set by the district court for timely pleas, and the record
demonstrates that the government was already engaging in trial preparation by the time of the
defendant’s guilty plea.” (Appellee Br. 17).
Section 3E1.1 of the Guidelines provides for a possible reduction of three points for
acceptance of responsibility. Section 3E1.1(a) allows the district court to reduce the offense level
by two points if “the defendant clearly demonstrates acceptance of responsibility for his offense.”
U.S. Sentencing Guidelines Manual § 3E1.1(a). Section 3E1.1(b) allows for a reduction of one
additional point:
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If the defendant qualifies for a decrease under subsection (a), the offense level
determined prior to the operation of subsection (a) is level 16 or greater, and upon
motion of the government stating that the defendant has assisted authorities in the
investigation or prosecution of his own misconduct by timely notifying authorities
of his intention to enter a plea of guilty, thereby permitting the government to avoid
preparing for trial and permitting the government and the court to allocate their
resources efficiently[.]
U.S. Sentencing Guidelines Manual § 3E1.1 (b). Application Note 6 to § 3E1.1 instructs that the
additional one-level reduction may be granted only upon a formal motion by the government at the
time of sentencing “because the [g]overnment is in the best position to determine whether the
defendant has assisted authorities in a manner that avoids preparing for trial.” U.S. Sentencing
Guidelines Manual § 3E.1.1, cmt. n.6 (2008); see also United States v. Coleman, 627 F.3d 205, 214
(6th Cir. 2010). The note further provides:
The timeliness of the defendant’s acceptance of responsibility is a consideration
under both subsections, and is context specific. In general, the conduct qualifying for
a decrease in offense level under subsection (b) will occur particularly early in the
case. For example, to qualify under subsection (b), the defendant must have notified
authorities of his intention to enter a plea of guilty at a sufficiently early point in the
process so that the government may avoid preparing for trial and the court may
schedule its calendar efficiently.
U.S. Sentencing Guidelines Manual § 3E.1.1 cmt. n.6 (2008).
In considering Johnson’s argument with regard to acceptance of responsibility, we must
consider the recent published Sixth Circuit panel decision in United States v. Mackety, 650 F.3d 621
(6th Cir. 2011), also originating in the Western District of Michigan. In Mackety, the defendant
entered into a plea agreement, and the government agreed in the agreement that it would not oppose
the defendant’s request for a two-level reduction for acceptance of responsibility under U.S.S.G. §
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3E1.1(a). Mackety, 650 F.3d at 622. Mackety entered his guilty plea on the day scheduled for the
final pretrial conference.6 Id. at 625. In determining the relevant advisory range under the
Guidelines, the district court granted the requested two-level reduction for acceptance of
responsibility. Id. at 623. The district court, in accordance with the policy from the district court’s
“Order Setting Final Pretrial and Trial dates,” declined to grant Mackety the third-level reduction
available under § 3E1.1(b). Id. at 624. The district court’s policy mandated: “A defendant who
waits until the time set for the final pretrial conference to plead guilty may not receive the one-level
reduction in offense level described in U.S.S.G. § 3E1.1(b), even if the government is prepared to
move for it.” Id.
On appeal, Mackety argued that the district court’s policy was inconsistent with the discretion
Congress intended to give to the government under § 3E1.1(b) and that the government in his case
had interpreted the policy “as a categorical denial of a § 3E1.1(b) reduction for acceptance of
responsibility and thus did not move for it.” Id. The panel rejected the government’s argument that
the policy was consistent with case law because the government relied on cases that were decided
prior to the 2003 amendment to § 3E1.1(b), which specified that the third-level reduction under §
3E1.1(b) may only be granted on motion from the government. Id. at 626–25. The panel
additionally rejected the government’s argument that any error by the district court in implementing
and relying on its policy in sentencing Mackety was harmless. Id. at 625. Despite the government’s
6
The Mackety opinion indicates that the late timing of the defendant’s plea in that case was
due to a death in his defense counsel’s family. Mackety, 650 F.3d at 626.
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Nos. 10-1725, 1727
United States v. Solomon Johnson
contention on appeal that it would not have moved for the § 3E1.1(b) reduction even absent the
district court’s policy, the panel found that the policy “influenced the Government not to move for
a § 3E1.1(b) reduction and, in doing so, usurped the Government’s discretion to move for the §
3E1.1(b) reduction.” Id.
At the sentencing hearing in Mackety, after discussion regarding the timing of the death in
defense counsel’s family and the timing of the guilty plea, the government advised the district court
that it would not move for the § 3E1.1(b) reduction. Id. at 626. The district court then stated that
it could not grant the third-level reduction because the government had not moved for it, but the
court also went on to state that it would have denied the motion, had the government made one. Id.
The panel determined that both the government and the probation officer believed the district court’s
policy that it would not grant a motion for a third-point reduction under § 3E1.1(b) if a defendant
entered a plea at the pretrial conference, which “contravenes § 3E1.1(b),” was mandatory and that
the court’s policy affected the government’s “prerogative and discretion to move for the § 3E1.1(b)
reduction[.]” Id. Accordingly, the panel found that Mackety’s sentence was procedurally
unreasonable and remanded for resentencing.
The Mackety court also explained that counsel advised during argument that the district court
policy denounced in Mackety is not uncommon in the Western District of Michigan. Id. at 627. The
panel then provided an example policy of “[a] second Western District of Michigan judge,” which
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Nos. 10-1725, 1727
United States v. Solomon Johnson
at the time was posted on that court’s website.7 Although the court did not name the referenced
judge specifically, the policy quoted is the exact policy of the district judge, who sentenced Johnson
and which is at issue in the instant case.8 See id. at 627. The panel advised: “We take this
opportunity to advise that such policies should be discontinued immediately because they are
inconsistent with Congress’ intent that the Government make the decision whether to move for the
additional one-level reduction under § 3E1.1(b).” Id.
As in Mackety, Johnson claims that the sentencing decision made by the sentencing judge
in this case was based in part on the fact that the guilty plea in one of his three cases was not entered
until the pretrial conference date, in violation of the district court’s case management order. Johnson
argues that the district court improperly found this to be dispositive of the issue. In fact, at the
sentencing hearing, after being reminded of the language of her case management order, the district
court stated that it “pretty much foreclose[d] the additional point.” (Sent. Hr’g 46). Additionally,
the government argues that one of the legitimate reasons for the district court’s denial of the one-
level reduction was that the guilty plea was not entered “until after the deadline set by the district
7
See www.miwd.uscourts.gov/rules_opinions.htm. The standing orders referred to by the
court in Mackety do not appear to remain on the Western District of Michigan’s website.
8
The case management order, which is quoted in Mackety, 650 F.3d at 627, and was recited
at Johnson’s sentencing hearing, provides:
This Court cannot allocate its resources efficiently if it must open court for a final
pretrial conference. Therefore, if court is open for a final pretrial conference, even
if a defendant pleads guilty at the time set for the final pretrial conference, the
defendant will not receive the one-level reduction in offense level described in
U.S.S.G. 3E1.1(b).
20
Nos. 10-1725, 1727
United States v. Solomon Johnson
court for timely pleas.” (Appellee Br. 17). All of these facts, combined with the panel’s finding in
Mackety that case management directives exactly like the one utilized in this particular case deny the
government the discretion it is intended to wield under § 3E1.1(b), lead to our conclusion that
Johnson’s case should be remanded for resentencing.
In light of the Mackety court’s finding that blanket policies concerning the additional one-
level reduction for acceptance of responsibility available under U.S.S.G. § 3E1.1(b), like the one
utilized in this case, usurp the government’s discretion to move for a reduction, and because we find
that the district court’s policy affected the calculation of the Guidelines range in this case, we find
that Johnson’s sentence was procedurally unreasonable with regard to acceptance of responsibility.
Accordingly, we VACATE the sentence as to the issue of the one-level reduction under U.S.S.G.
§ 3E1.1(b) only, and REMAND for resentencing in light of this ruling.
III. CONCLUSION
For the reasons explained herein, we AFFIRM the judgment of the district court with regard
to the obstruction of justice enhancement, and VACATE and REMAND for resentencing with
regard to the additional one-level reduction for acceptance of responsibility under U.S.S.G. §
3E1.1(b).
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