U.S. v. Henderson

Decision Date08 March 2000
Docket NumberV,DEFENDANTS-APPELLANTS,PLAINTIFF-APPELLE,Nos. 98-4087,98-4369,s. 98-4087
Citation209 F.3d 614
Parties(6th Cir. 2000) UNITED STATES OF AMERICA,BRETT L. HENDERSON (98-4087), DAVID NELMS (98-4369), Submitted:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 97-00098--George C. Smith, District Judge.

Terry Lehmann, Office of the U.S. Attorney, Cincinnati, OH, Robyn Jones (briefed), Office of the Attorney, Columbus, OH, for Plaintiff-Appellee in No. 98-4087.

Robyn R. Jones (briefed), Office of the U.S. Attorney, Columbus, OH, for Plaintiff-Appellee in No. 98-4369.

Kevin M. Schad, Schad, Buda & Cook, Jeffrey M. Brandt, Brandt Law Offices, Cincinnati, OH, Brian E. Goldberg (briefed), Huntington, New York, for Defendant-Appellant in No. 98-4087.

William K. Fulmer, II (briefed), Erlanger, KY, for Defendant-Appellant in No. 98-4369.

Before: Wellford, Siler, and Gilman, Circuit Judges.

OPINION

Ronald Lee Gilman, Circuit Judge.

Brett Henderson and David Nelms pled guilty to conspiring to import cocaine in violation of 21 U.S.C. § 963. Both are appealing their sentences, claiming that their criminal history categories overstate the seriousness of their past conduct. Because of this, they argue that the district court erred when it denied their motions for a downward departure from the United States Sentencing Guidelines. Henderson also argues that the district court erred when it assessed him with three criminal history points, pursuant to U.S.S.G. § 4A1.1(a), for serving a sentence in excess of one year and one month for a past robbery conviction. The district court rejected Henderson's and Nelms's arguments and found that their criminal history categories adequately reflected their numerous past convictions. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

In the summer of 1996, two brothers, Mark and Gary Seawell, developed an organization to import cocaine from Belize and Mexico into Columbus, Ohio for distribution. From the summer of 1996 through the summer of 1997, the Seawells hired other individuals, including Brett Henderson, to recruit couriers for them. A courier would travel to Chetamul, Mexico and receive a pair of tennis shoes with a half kilogram of cocaine concealed in the sole of each shoe. Upon receiving the shoes, a courier would place them on his feet and wear them back to Columbus. Henderson and the other recruiters would pick up the cocaine from their respective couriers and deliver it to Gary Seawell for distribution.

Nelms was involved in a cocaine shipment for the Seawells in August of 1997. Instead of having couriers bring the drugs back in their tennis shoes, this particular shipment was sent by mail from Belize to Columbus. The United States Customs Service, however, intercepted this shipment and made a controlled delivery to one of Nelms's co-conspirators. Gary Seawell then instructed this co-conspirator to give the cocaine to another co-conspirator named Richard Meighan. When Meighan arrived to pick up the package of cocaine, Nelms was with him. Upon being approached by the police, Nelms fled. Nelms was ultimately arrested. The box in which the cocaine had been shipped was recovered from the location where Nelms had attempted to hide it during the chase. Subsequent investigation further revealed that Nelms had distributed cocaine for the Seawells in the past and was expecting to receive a portion of the cocaine delivered in the August shipment.

Shortly thereafter, Henderson and Nelms were indicted on numerous drug charges. On December 24, 1997, pursuant to separate plea agreements, they each pled guilty to conspiring to import cocaine in violation of 21 U.S.C. § 963. Prior to sentencing, the government filed motions, pursuant to U.S.S.G. 5K1.1, seeking downward departures for both Henderson and Nelms based on their assistance in the investigation of their co-conspirators. Because Henderson had provided more assistance than Nelms, the government recommended that the district court depart four offense levels for Henderson and three offense levels for Nelms. The district court granted the government's motion and departed accordingly.

In determining Henderson's sentence, the district court pointed out that he had twelve convictions as an adult. All of them were not included in Henderson's criminal history computation due to the length of time that had passed since some of them had occurred. Those that were utilized for purposes of the computation included a conviction for operating a motor vehicle while under the influence (OMVI) in 1987, a robbery conviction in 1990, OMVI convictions in 1993 and 1995, a conviction for driving under a suspended license in 1995, disorderly conduct convictions in 1996 and 1997, and a negligent assault conviction in 1997. Henderson received a total of nine criminal history points that resulted in a criminal history category of IV for purposes of sentencing. These nine points were derived by assessing Henderson three criminal history points for the 1990 robbery conviction, see U.S.S.G. § 4Al.1(a), four points for the other numerous convictions that he had, see U.S.S.G. § 4A1.1(c), and two points for committing the instant offense while on probation, see U.S.S.G. § 4A1.1(d).

Henderson made several objections to his criminal history calculation. One of his primary contentions was that his criminal history category overstates the seriousness of his past conduct. In other words, because his past criminal history consists of a number of "minor" violations, Henderson argued that his criminal history category exaggerates the significance of his past conduct. His other main argument was that he should not receive the three point assessment for his 1990 robbery conviction because of his unsupported contention that he was supposed to get "shock probation" after he had served only six months in prison. Shock probation is a term of art for early release that may be granted in the discretion of the Ohio trial court. See Ohio v. Bistarkey, No. 90-CR-290, 1994 WL 456473, *2 (Ohio Ct. App. Aug. 19, 1994); O.R.C. § 2947.061. Because defendants are able to get out of prison much sooner than under normal conditions, many state defendants file motions for shock probation in Ohio.

The district court, however, concluded that Henderson's criminal history category was not overstated and pointed out that the plain language of § 4A1.1 mandated that the court add three points for the robbery conviction. It then departed downward four offense levels because of Henderson's assistance to the government, which was a 70-month reduction, and sentenced Henderson to 140 months of imprisonment, followed by a 5-year period of supervised release, and a $100 special assessment. Henderson timely filed a notice of appeal.

With respect to Nelms's sentence, his record includes juvenile convictions for receiving stolen property and attempted drug abuse, neither of which were used in calculating his criminal history. As an adult, Nelms has a conviction for aggravated trafficking in drugs in 1991, four drug convictions between the span of 1992 to 1993, and a drug abuse conviction in 1995. Nelms's six drug convictions resulted in a criminal history score of thirteen under the guidelines. He is also a "career offender" because, as an adult, he had been convicted of two felony drug crimes prior to his felony plea on the cocaine importation charge. See U.S.S.G. 4B1.1. A total criminal history score of thirteen combined with his career offender status resulted in a criminal history category of VI.

At Nelms's sentencing hearing, he argued that the offenses that made him a career offender were committed when he was eighteen and nineteen years old and involved only a small amount of drugs. Thus, according to Nelms, his "prior history [did] not accurately reflect the gravity of the career offender status." The district court, however, found that Nelms's criminal history category adequately reflected his past conduct, especially considering the amount of violations that he had committed. On the other hand, it did depart downward three levels on account of Nelms's assistance to the government. This departure resulted in a thirteen month reduction from the low end of Nelms's original guideline range and a sixty month reduction from the maximum possible sentence that he could have received. After the departure, Nelms's offense level was twenty-eight and his criminal history category was VI, which resulted in a sentencing range of 140 to 175 months. Nelms was sentenced to 175 months of imprisonment, followed by a 4-year period of supervised release, and a $100 special assessment. Because Nelms ran from the arresting officers, attempted to conceal evidence, and had a lengthy criminal history, he was sentenced at the high end of the guideline range. Nelms filed a timely notice of appeal.

II. ANALYSIS
A. Standard of review

Both Henderson and Nelms argue that the district court abused its discretion when it denied their motions for a downward departure. The government counters by arguing that the district court did not abuse its discretion because it was aware that it had the authority to depart downward. All of the parties cite Koon v.United States, 518 U.S. 81 (1996), for the proposition that we review a district court's decision not to depart for an abuse of discretion. Koon, however, dealt with a district court's affirmative decision to depart downward, which is inapplicable to a district court's decision not to depart from the sentencing guidelines. See United States v. Brown, 98 F.3d 690 (2d Cir. 1996).

In Brown, the Second Circuit addressed Koon's applicability to a decision not to depart from the sentencing guidelines and held the following:

[I]t is well established in this Circuit that a court's decision not to...

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