U.S. v. Jeross
| Decision Date | 04 April 2008 |
| Docket Number | No. 06-2257.,No. 06-2502.,06-2257.,06-2502. |
| Citation | 521 F.3d 562 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph JEROSS (06-2257) and Kathleen Docherty (06-2502), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Sylvan Lake, Michigan, Andrew N. Wise, Federal Defender Office, Detroit, Michigan, for Appellants. Carl D. Gilmer-Hill, Assistant United States Attorney, Detroit, Michigan, for Appellee.
Before MERRITT, GILMAN, and COOK, Circuit Judges.
GILMAN, J., delivered the opinion of the court, in which COOK, J., joined. MERRITT, J. (pp. 587-90), delivered a separate dissenting opinion.
In April of 2003, Joseph Jeross and Kathleen Docherty pled guilty to, and were later sentenced for, their roles in a Detroit-based conspiracy to possess and distribute at least 100,000 Ecstacy pills. Jeross was sentenced to 270 months in prison and Docherty was sentenced to 188 months in prison. Their sentences were later vacated and remanded by this court following the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On remand, the district court imposed the same sentences, which Jeross and Docherty now challenge on numerous grounds.
Both Jeross and Docherty argue that the district court used an incorrect version of the U.S. Sentencing Guidelines (USSG), improperly extrapolated the total weight of the 100,000 Ecstacy pills from the actual weight of a smaller number of pills actually recovered in the investigation, and denied them the opportunity to personally address the court at their resentencing hearings. Jeross separately contends that the district court sentenced him above the statutory maximum term in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), failed to apply a three-level reduction to his base offense level for acceptance of responsibility, and did not inquire at his resentencing hearing into whether he and his attorney had had the opportunity to review and discuss his Presentence Report (PSR). He also asks that we reassign his case to a different district court judge upon further remand. Docherty, for her part, argues that the district court erred in holding her responsible for 100,000 pills of Ecstacy and in increasing her base offense level on the ground that she was a manager in the conspiracy. For the reasons set forth below, we AFFIRM the sentences of both Jeross and Docherty.
In April of 2003, Jeross and Docherty pled guilty to conspiring to possess and distribute Ecstacy pills between December of 2001 and August of 2002, in violation of various federal statutes. Their pleas were entered without Rule 11 plea agreements.
The defendants had been indicted in August of 2002 after several months of investigation, during which Docherty sold several thousand Ecstacy pills to undercover agents. Those pills were tested and found to contain varying combinations and amounts of the controlled substances methylenedioxymethamphetamine (MDMA), methylenedioxyamphetamine (MDA), and methamphetamine ("meth").
Thomas Leto, one of Jeross's and Docherty's coconspirators and codefendants, provided extensive and detailed information about how the conspiracy operated. Leto testified that he traveled with Jeross to Canada several times to pick up the pills and take them back to Docherty's home outside of Detroit, where they were repackaged and distributed. At other times during the conspiracy, Leto said that he distributed drugs for Docherty. He testified that at least 100,000 pills were distributed during his involvement in the conspiracy, a quantity that, law enforcement officials corroborated based on (1) approximately $450,000 in cash seized as a result of the investigation, (2) a notebook that Docherty maintained to record the various drug transactions, and (3) statements from other people who were involved in the operation. According to Leto, Jeross financed the operation and paid Docherty a salary to manage the distribution of the drugs through four or five individual distributors.
The basic facts of each defendant's sentencing and resentencing proceedings are summarized below. Facts that are specific to the various issues that Jeross and Docherty raise on appeal are set forth in the corresponding sections of this opinion.
Jeross pled guilty to violations of 21 U.S.C. §§ 841 and 846 (), 21 U.S.C. § 841(a)(1) (), 8 U.S.C. § 2 (aiding and abetting), and 31 U.S.C. § 5324 (). At Jeross's initial sentencing in July of 2004, the district court determined that, under the 2002 Guidelines, his base offense level was 36. The court first found that Jeross was responsible for 100,000 pills, then applied a four-level increase for Jeross's role as a manager in the offense pursuant to USSG § 3B1. 1(a), and added another two levels under USSG § 3C1. 1 because the court found that Jeross had obstructed justice by threatening Leto on several occasions. In addition, the district court concluded that Jeross was ineligible under USSG § 3E1.1 for an acceptance-of-responsibility reduction because of his obstruction of justice. These calculations resulted in a total offense level of 42 and, with a criminal history category of I, a Guidelines range of 360 months to life in prison.
The court sentenced Jeross below the Guidelines range to a total of 270 months in prison, a sentence that was comprised of (1) four concurrent terms of 240 months' imprisonment (the statutory maximum) for his drug-related offenses, and (2) a consecutive term of 30 months' imprisonment for structuring cash transactions to evade reporting requirements. The latter term was below the 60-month statutory maximum prison term for that offense, reflecting the court's grant of the government's motion for a downward departure because of Jeross's substantial assistance in the investigation.
On the government's motion, Jeross's sentence was subsequently vacated and remanded by this court for resentencing in light of Booker. At a resentencing hearing in February of 2006, the district court acknowledged that the Sentencing Guidelines are advisory, but imposed the same sentence of 270 months in prison. Jeross timely filed a notice of appeal. Nine months after his reentencing, the district court acknowledged an error in its calculation of Jeross's base offense level during the course of Docherty's resentencing proceedings.
Docherty pled guilty to violations of 21 U.S.C. §§ 841 and 846 (), 21 U.S.C. § 841(a)(1) (), and 18 U.S.C. § 2 (aiding and abetting). She was originally sentenced in October of 2003 at the end of a two-day hearing. Based on a finding that Docherty was also responsible for 100,000 pills, the district court applied the 2002 Guidelines and calculated a base offense level of 36. It then added three levels for her role as a manager in the conspiracy pursuant to USSG § 3B1.1(b) and subtracted three levels for her acceptance of responsibility under USSG § 3E1.1(a) and (b)(1). Together with a criminal history category of I, the resulting Guidelines range was 188 to 235 months in prison. The court sentenced her to six concurrent prison terms of 188 months each.
Docherty's sentence was also vacated and remanded by this court in light of Booker. At her resentencing hearing in November of 2006, the district court acknowledged that the Guidelines are advisory, not mandatory, but still imposed the original sentence. Docherty timely filed a notice of appeal.
We review a district court's factual findings in sentencing a defendant under the clearly erroneous standard, United States v. Hazelwood, 398 F.3d 792, 795 (6th Cir.2005), and its application and interpretation of the Guidelines de novo, United States v. Cousins, 469 F.3d 572, 575 (6th Cir.2006). A district court's decision will be found to be clearly erroneous where, having reviewed all of the evidence, we are left with the definite and firm conviction that a mistake has been made. United States v. Worley, 193 F.3d 380, 384 (6th Cir.1999).
The ultimate sentence, however, is reviewed for reasonableness. United States v. Thomas, 498 F.3d 336, 339 (6th Cir.2007). We use the abuse-of-discretion standard to determine whether a defendant's sentence is reasonable. See United States v. Carter, 510 F.3d 593, 600 (6th Cir.2007) ().
"Review for reasonableness has both procedural and substantive components." Id. at 600. The Supreme Court recently explained that the appellate court
must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.
"[W]here a district court makes a...
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