William Snethkamp, III v. Shawn Brewer

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0619n.06
No. 16-1989
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 08, 2017
WILLIAM E. SNETHKAMP, III, ) DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
SHAWN BREWER, Warden, ) DISTRICT OF MICHIGAN
)
Respondent-Appellee. )
)
BEFORE: MOORE, WHITE and DONALD, Circuit Judges.
HELENE N. WHITE, Circuit Judge.
Petitioner William Edward Snethkamp III, a Michigan prisoner, appeals the district
court’s summary denial of his petition for a writ of habeas corpus. He argues that Michigan’s
delayed sentencing statute, Michigan Compiled Laws § 771.1, is unconstitutionally vague with
respect to the scoring of prior record variables. We disagree and affirm.
I. Background
On April 29, 2013, Snethkamp pleaded guilty in the Circuit Court for the County of
Emmet, Michigan, to manufacturing methamphetamine in violation of Mich. Comp. Laws
§ 333.7401(2)(b)(ii), a felony. The Michigan Department of Corrections prepared a pre-sentence
investigation report (PSIR)1 in which prior record variable seven (PRV 7), which reflects a
defendant’s “subsequent or concurrent felony convictions,” was given a score of zero. See Mich.
1
“Before the court sentences a person charged with a felony . . . the probation officer
shall inquire into the antecedents, character, and circumstances of the person, and shall report in
writing to the court.” Mich. Comp. Laws § 771.14(1).
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Snethkamp v. Brewer
Comp. Laws § 777.57(1). A defendant receives a score of zero when he has been convicted of
no subsequent or concurrent felonies, ten points for one such felony, and twenty points for two or
more. Id. § 777.57(1)(a)-(c). Snethkamp had two felony charges pending in Livingston County,
which did not affect his PRV 7 score because they had not yet resulted in convictions. The score
of zero resulted in a minimum sentencing range of twelve to twenty months. At a hearing on
July 18, 2013, Snethkamp argued for probation or, alternatively, a delayed sentence; the
prosecution argued for an immediate prison sentence and an upward departure from the
guidelines. The trial court entered an order delaying Snethkamp’s sentencing, pursuant to Mich.
Comp. Laws § 771.1. The court imposed conditions, including that Snethkamp maintain
sobriety and complete a drug-treatment program.
On August 23, 2013, Snethkamp pleaded guilty to two felony charges in Livingston
County, pertaining to crimes committed in January 2012, about nine months before his arrest for
the Emmet county offense. Snethkamp was sentenced for the Livingston County felonies on
September 20, 2013. On October 11, 2013, the prosecution in the Emmet County case moved
for sentencing based on the new convictions, but the trial court denied the motion. Snethkamp
otherwise complied with the terms of the delay of his Emmet County sentence.
On June 24, 2014, at the end of the sentencing delay, the trial court held a sentencing
hearing. In advance of the sentencing hearing, the Michigan Department of Corrections
submitted an updated report in which Snethkamp’s PRV 7 was re-scored from zero to twenty, to
reflect the two Livingston County felony convictions. The trial court accepted the re-scoring,
which resulted in a sentencing guideline range of thirty-six to sixty months. However, the court
departed downward from the new sentencing guidelines range and sentenced Snethkamp
consistent with the earlier-scored guidelines to a twelve-month term of incarceration, of which
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Snethkamp v. Brewer
six months were to be served immediately in county jail and six months held in abeyance,
followed by a term of probation of thirty-six months.
On September 12, 2014, Snethkamp was arrested for possession of a controlled substance
while on work release. He pleaded guilty of violating probation and on June 16, 2015, his
probation was revoked and he was resentenced to a minimum of three years and a maximum of
twenty years in prison.2 The sentence was upheld on appeal. People v. Snethkamp, No. 328183
(Mich. Ct. App. Aug. 27, 2015); appeal denied, 876 N.W.2d 561 (Mich. 2016) (Mem.).
Snethkamp filed a petition for a writ of habeas corpus challenging his June 16, 2015
sentence. He made two arguments. First, he argued that Mich. Comp. Laws § 771.1 violates due
process and equal protection because it “does not specifically demand when the sentencing
PRV’s [sic] are to be scored.”3 (R. 1, PID 33.) He reasoned that the sentencing guidelines
minimum sentence range is binding on a trial court unless it articulates substantial and
compelling reasons for a departure.4 The guidelines instruct that PRVs are to be scored pursuant
to part five of the chapter. Mich. Comp. Laws § 777.21(1)(b). Pursuant to that part, PRV 7 is
determined in relevant part as follows:
(1) Prior record variable 7 is subsequent or concurrent felony convictions. Score
prior record variable 7 by determining which of the following apply and by
2
Michigan has indeterminate sentencing; generally, the minimum is the controlling
sentence and the maximum is fixed by statute.
3
In passing, he argued that he was improperly resentenced after a valid sentence had
been imposed. (R. 1, PID 33.) But “[a] delay in sentencing is just that. It means that the court
will impose the sentence after a period of time based on facts then known to the court.” People
v. Saenz, 433 N.W.2d 861, 863 (Mich. Ct. App. 1988).
4
Shortly after Snethkamp was sentenced, this changed. In People v. Lockridge, 870
N.W.2d 502 (Mich. 2015), cert. denied sub nom. Michigan v. Lockridge, 136 S. Ct. 590 (July 29,
2015), the Michigan Supreme Court severed and struck the portions of the sentencing guidelines
that rendered them mandatory and that required the trial judge to justify departures. Id. at 520–
21; see also People v. Steanhouse, No. 152671, 2017 WL 3137553, at *7 (Mich. July 24, 2017).
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Snethkamp v. Brewer
assigning the number of points attributable to the one that has the highest number
of points:
(a) The offender has 2 or more subsequent or concurrent convictions . . . 20 points
(b) The offender has 1 subsequent or concurrent conviction . . . 10 points
(c) The offender has no subsequent or concurrent convictions . . . 0 points
(2) All of the following apply to scoring record variable 7:
(a) Score the appropriate point value if the offender was convicted of multiple
felony counts or was convicted of a felony after the sentencing offense was
committed.
Mich. Comp. Laws § 777.57 (emphasis added). The delayed sentencing statute, however,
provides no guidance on when this scoring is to take place. It simply provides:
In an action in which the court may place the defendant on probation, the court
may delay sentencing the defendant for not more than 1 year to give the defendant
an opportunity to prove to the court his or her eligibility for probation or other
leniency compatible with the ends of justice and the defendant’s rehabilitation,
such as participation in a drug treatment court . . . . When sentencing is delayed,
the court shall enter an order stating the reason for the delay upon the court’s
records. The delay in passing sentence does not deprive the court of jurisdiction
to sentence the defendant at any time during the period of delay.
Mich. Comp. Laws § 771.1(2). Snethkamp argued that because the delayed sentencing statute
leaves it unclear whether PRVs are to be scored at the initial sentencing hearing (the hearing at
which sentencing is formally delayed) or after the delay when the defendant is actually
sentenced, it is unconstitutionally vague.
Second, Snethkamp argued that his interest in “finality” requires that his PRVs be scored
at the initial sentencing hearing and “locked into place,” regardless whether the court issues a
sentence at that hearing or delays sentencing.5 (R. 1, PID 20.) He argued that the “trial court
should not be able to increase a [PRV] score, particularly [PRV] 7 under MCL 777.57, for a
‘subsequent’ conviction for an offense that was committed before the offense that is the subject
5
Snethkamp also argued that a defendant may not be re-sentenced after having been fully
sentenced. However, a delay in sentencing is not a sentence. People v. Saenz, 433 N.W.2d 861,
863 (Mich. Ct. App. 1988)
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of the delayed sentence” and that “[t]his allows vindictive prosecutors numerous bites at the
sentencing apple to attempt to gain favorable sentences.” (R. 1, PID 20-21.) He argued that
“the current interpretation of the delayed sentencing statute and the prior record variable statute
violates Due Process Rights, by allowing an invitation of gamesmanship for both the prosecution
and the defense,” (R. 1, PID 25.) and that “subsequent . . . conviction” should instead be read to
mean conviction for an offense that was committed subsequent to the sentencing offense, rather
than an offense for which the defendant was subsequently convicted. (R. 1, PID 21-22.) He
acknowledged that the Michigan Sentencing Guidelines Manual takes the latter approach,
defining “subsequent conviction” as “[a] conviction that was entered on the offender’s criminal
record after the commission date of the sentencing offense and is unrelated to the conduct from
which the sentencing offense arose.” MICH. SENTENCING GUIDELINES MANUAL 17, available at
https://mjieducation.mi.gov/documents/sgm-files/94-sgm/file. He pointed out, however, that the
guidelines explicitly state that the statute controls in the event of any conflict, id. at 2, and argued
that the guiding interpretation of the statute should be that found in People v. Tolbert, No.
288017, 2010 WL 539853 (Mich. Ct. App. Feb. 16, 2010) (per curiam), an unpublished opinion
in which the court stated that Mich. Comp. Laws § 777.57 “provides fair notice of the conduct
proscribed, namely, the commission of additional felonies concurrent to or subsequent to the
sentencing offense.” Id. at *7. (emphasis added.) He argued that this interpretation would
prevent gamesmanship and comport with the rule of lenity.
The district court summarily dismissed Snethkamp’s petition as a state-law challenge and
denied a certificate of appealability (COA). Snethkamp v. Brewer, No. 2:16-CV-12116, 2016
WL 3269559, at *2-3 (E.D. Mich. June 15, 2016); see Estelle v. McGuire, 502 U.S. 62, 67-68
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(1991) (reemphasizing that “it is not the province of a federal habeas court to reexamine state-
court determinations on state-law questions”).
Although Snethkamp’s habeas petition argued questions of state law, it also challenged
“the delayed sentencing statute itself as unconstitutionally vague, arguing that it creates
ambiguity and encourages gamesmanship.” COA Order 3. This court granted Snethkamp’s
motion for a COA as to the void-for-vagueness claim and denied it as to his other claims. COA
Order 3.
II. Discussion
On appeal, Snethkamp argues that Mich. Comp. Laws § 771.1 is unconstitutionally
vague, violates his right to finality, and has impermissible collateral consequences. Only the first
issue is properly before us under the COA.
In appeals of federal habeas corpus proceedings, this court reviews the district court’s
legal conclusions de novo and its factual findings under a “clearly erroneous” standard. Lucas v.
O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). The parties dispute whether Snethkamp exhausted his
vagueness challenge by sufficiently “federalizing” it in his state appeal. Because his claim fails
in any event, we will assume arguendo that it was exhausted.
A. Vagueness
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that
sentencing statutes are subject to due process void-for-vagueness challenges. Id. at 2560.
Accordingly, Respondent’s argument that Mich. Comp. Laws § 771.1 is not subject to a void-
for-vagueness challenge because it does not proscribe conduct is unavailing. Further, because
Michigan’s sentencing guidelines were mandatory until shortly after Snethkamp received the
sentence he now serves, People v. Lockridge, 870 N.W.2d 502, 520 (Mich. 2015), cert. denied
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No. 16-1989
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sub nom. Michigan v. Lockridge, 136 S. Ct. 590 (2015), the Supreme Court’s determination in
Beckles v. United States, 137 S. Ct. 886, 894 (2017), that non-mandatory sentencing guidelines
are not subject to void-for-vagueness challenges does not preclude Snethkamp’s challenge.
As in the district court, Snethkamp argues that Mich. Comp. Laws § 771.1 is
unconstitutionally vague because it does not prescribe a specific point in time when a
defendant’s PRVs must be scored. He asserts that the absence of a prescribed time for scoring
invites gamesmanship, and that scoring should be “locked into place” at the initial time set for
sentencing, which would prevent prosecutorial abuses. (Appellant Br. 34, 38-39.) He again
argues that the Michigan Sentencing Guidelines Manual’s definition of “subsequent conviction”
as a conviction that was entered on the offender’s criminal record after the commission date of
the sentencing offense must yield to the statute, and that the Tolbert court’s interpretation that the
statute refers to subsequently committed crimes should govern. (Appellant Br. 35.)
We first address Snethkamp’s arguments regarding the interpretation and intent of
PRV 7. The interpretation of Mich. Comp. Laws §§ 777.57 (PRV 7) and 771.1, and the
interaction between them, is a matter for the Michigan courts, and to the extent Snethkamp
makes arguments in favor of a different interpretation of the statutes, the district court correctly
dismissed these claims as presenting questions of state law. We must read Mich. Comp. Laws
§ 777.57(2) as the Michigan courts read it—as applying when the conviction of the subsequent
offense occurs after the conviction offense was committed—not, as Snethkamp argues, as
applying only when the defendant is convicted of a felony that occurred after the sentencing
offense was committed.6
6
Snethkamp’s reliance on Tolbert is misplaced. Tolbert uses language that supports
Snethkamp’s position, but the language was not directed to the issue Snethkamp uses it for. The
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Section 771.1 is not rendered vague when coupled with PRV 7. Under Mich. Comp.
Laws §§ 777.21(1)(b) and 777.57, PRV 7 is scored based on “subsequent or concurrent felony
convictions.” Mich. Comp. Laws § 777.57 (emphasis added). Accordingly, the language of the
statute adequately conveys that PRV 7 is scored based on the date of conviction of the
“subsequent” offenses, not the date of commission, and this is so regardless whether a delayed
sentence under Mich. Comp. Laws § 771.1 is involved. Had Snethkamp been convicted of the
Livingston County offenses first, they would have been counted in initially calculating PRV 7,
notwithstanding that they were committed before Snethkamp’s arrest for the Emmet County
offense. No vagueness is introduced by the delayed sentencing. Although § 771.1 does not
directly state when the guidelines should be calculated, the fact that sentencing is delayed
provides notice that the guidelines will be calculated at a later time, when sentencing actually
takes place. Michigan law simply requires that the guidelines be scored at sentencing, and a
delay in sentencing therefore results in a delay in scoring.
We further note that the core of Snethkamp’s argument is that as a result of the alleged
vagueness of § 771.1, the twelve-to-twenty-months sentencing range that applied at the initial
hearing at which his sentencing was delayed, was increased to thirty-six to sixty months at his
actual sentencing a year later, subjecting him to greater exposure to an increased sentence,
notwithstanding that he committed no new offenses and complied with the conditions of the
delayed sentence. However, the court departed downward from the higher guideline. The
Tolbert court was addressing a void-for-vagueness challenge, but the question was whether
defendants have adequate notice that concurrent or subsequent convictions will be scored despite
the fact that PRVs are “intended to assess prior criminal history,” 2010 WL 539853 at *7
(emphasis in original), not whether scoring is restricted to subsequently committed felonies.
Further, the guidelines manual instruction is not in conflict with the language of the statute,
Mich. Comp. Laws § 777.57(2); they are, in fact, consistent.
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sentence Snethkamp actually received at the delayed sentencing was a twelve-month term of
incarceration, with six months to be served immediately in county jail and six months held in
abeyance at the court’s discretion, followed by a term of probation of thirty-six months. Thus,
Snethkamp was effectively sentenced in accordance with the earlier-computed guidelines rather
than the increased range. And, Snethkamp does not argue that the trial court would have
imposed a lesser sentence had his sentence not been delayed, or a lesser sentence at the delayed
sentence had the guidelines not been rescored.
Snethkamp further argues that the delayed sentencing statute creates an opportunity for
prosecutorial gamesmanship. But Snethkamp does not argue that the prosecutor induced him to
act differently in reliance on the belief that his scoring was “locked in”; rather, he argues that the
trial court and the sentencing guidelines themselves led him to believe that his sentencing
guideline range would not increase if he complied with the terms of the delay. An argument
regarding the potential for prosecutorial misconduct is more appropriate for a different case with
different facts, i.e., where prosecutorial misconduct is involved. Here, at the delayed sentencing
hearing, the sentencing court chose not to apply the higher guidelines and instead departed
downward and sentenced consistent with the original guidelines that were based on a PRV 7
score of zero, likely because Snethkamp had, in fact, demonstrated the conduct that the court had
hoped he would.
Further, to the extent Snethkamp argues that he was entitled to an intermediate sanction
without a prison term, this argument is unsupported. The trial court had the option of sentencing
Snethkamp to prison even when PRV 7 was scored at zero. Because the high end of the twelve-
to-twenty-months range was greater than eighteen months, a within-guidelines sentence included
two options: 1) an intermediate sanction that could include imprisonment in jail for up to twelve
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months, and 2) a prison term with a minimum term of no more than twenty months. Mich.
Comp. Laws § 769.34(4)(c)(i). In other words, Snethkamp was always subject to a within-
guidelines prison term.
In sum, Mich. Comp. Laws §§ 771.1 and 777.57 are not vague. The latter explains how
PVR 7 is to be scored and the former merely permits sentencing to be delayed. The fair import,
unless the Michigan courts say otherwise, is that Mich. Comp. Laws § 777.57 will be applied
according to its terms at the time sentencing takes place. Further, any unfairness in the implied
promise of leniency for continued good behavior was obviated when the court chose to impose a
sentence that was consistent with the lower guideline range. Finally, the sentence Snethkamp
now serves is the result of resentencing for a violation of his probation. Although the same
guidelines range applied in 2015 as had applied in 2014, the court was entitled to “consider post
probation factors” in determining whether a greater sentence was warranted in 2015 than had
been imposed in 2014. See People v. Hendrick, 697 N.W.2d 511, 516 (Mich. 2005).
Snethkamp’s void-for-vagueness challenge fails.
B. Remaining claims
As in his habeas corpus petition below, Snethkamp argues that § 771.1 violated the Fifth
Amendment’s protection against double jeopardy and undermined his interest in the finality of
his sentence. However, Snethkamp’s COA was specifically confined to his void-for-vagueness
claim. Thus, we do not address his double jeopardy/finality or ex post facto arguments. Nor are
his claims addressed to the length of his sentence for probation violation or its reasonableness
properly before us.
III. Conclusion
For these reasons, we AFFIRM.
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