United States v. Greer

• Decision Date: 03 October 2017
• Docket Number: No. 16-5701.,16-5701.
• Citation: 872 F.3d 790
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie Marshay GREER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

872 F.3d 790

UNITED STATES of America, Plaintiff-Appellee,

v.Willie Marshay GREER, Defendant-Appellant.

No. 16-5701.

United States Court of Appeals, Sixth Circuit.

Argued: June 21, 2017

Decided and Filed: October 3, 2017

COUNSEL ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Christopher C. Wang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant. Christopher C. Wang, Tovah R. Calderon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before: KEITH, BATCHELDER, and SUTTON, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

In this appeal from his criminal conviction for lying to an investigator, the defendant argues that the district court erred in calculating his sentence by improperly applying a cross-reference to the Accessory After the Fact provision, USSG § X3.1, by relying on unproven factual allegations, and by denying him two requested downward departures. Finding no merit to any of these claims, we AFFIRM.

I.

Willie Greer was a Hamilton County (Tenn.) Deputy Sheriff. In a late-night traffic stop, he pulled over a female driver who had been drinking, had no driver's license, and had an outstanding arrest warrant. Greer ran her license but did not arrest her. Instead, he had her drive to a secluded location where he had her perform oral sex on him. After Greer ejaculated he gave the woman a fast-food cup, presumably to spit into, and allowed her to drive away.

Later that day, the woman filed charges with the Sheriff's Department, alleging that an officer had sexually assaulted her. A detective interviewed Greer that same day. Greer knew the woman had reported a sexual assault, that he was the suspect in that assault, and that the investigation could lead to criminal charges. And Greer lied to the detective. Greer said that he had run the woman's license plate but had no personal interaction with her, and could not even identify her. In truth, Greer had initiated a traffic stop and had interacted with her plenty.

Later during the same interview, Greer made up a new version of events. He said that he had not activated his police lights or detained her but, rather, she had approached him with the sexual proposition and that he had begun but had discontinued the act. Greer said he had been masturbating before she approached him and had ejaculated into the fast-food cup. But in truth, as Greer eventually admitted, he had activated his police lights to initiate the stop, had approached and detained the woman, and had "had [her] perform oral sex on him"; she had not sexually propositioned Greer, though whether he had been masturbating was not resolved. R. 24 at 3, ¶ 4 (Plea Agreement, admitted facts). Greer acknowledged that investigators recovered his semen from the woman's clothing and his DNA from the fast-food cup that he had given her.

The county prosecutor charged Greer with aggravated rape and official misconduct under state law, but dismissed those charges following a federal indictment for aggravated sexual abuse, witness tampering (i.e., making false statements to the detective), and possession of a gun during a crime of violence. Eventually the parties entered a plea agreement in which Greer admitted the foregoing facts and pleaded guilty to witness tampering in violation of 18 U.S.C. § 1512(b)(3), in exchange for the federal prosecutor's dismissing the other two charges.

The presentence report (PSR) presented the relevant Sentencing Guidelines and the associated advisory guidelines calculations as follows:

Base Offense Level: The guideline for 18 U.S.C. § 1512(b)(3) offenses is found in USSG § 2J1.2 of the guidelines. That section provides that an offense involving witness tampering (providing false information) has a base offense level of 14. USSG § 2J1.2(a).

However, USSG § 2J1.2(c) provides for a Cross Reference to USSG § 2X3.1, Accessory After the Fact, in respect to the criminal offense under investigation. In this case, the criminal offense under investigation was a Civil Rights Violation ( USSG § 2H1.1 ).

USSG § 2H1.1(a)(1) establishes the base offense level to be the offense level from the guideline applicable to any underlying offense. In this case, the underlying offense of the civil rights violation being investigated was aggravated rape. The base offense level as determined under USSG § 2A3.1(a)(2) is 30.

USSG § 2X3.1(a)(1) provides that the base offense level should be 6 levels lower than the offense level for the underlying offense, 30 minus 6 establishes a base offense level of 24.

Specific Offense Characteristics: After the establishment of the base offense level pursuant to USSG § 2X3.1, the Special Offense Characteristic at USSG § 2H1.1(b)(1) is applied if the defendant was a public official at the time of the offense, or the offense was committed under the color of law. +6

PSR at ¶¶ 21-22. After subtracting three levels for acceptance of responsibility, the PSR's Total Offense Level was 27 (i.e., 24 + 6 - 3), which, coupling this with a criminal history category of I (score of zero), resulted in an advisory range of 70 to 87 months in prison. PSR at ¶ 55.

At the sentencing hearing, Greer objected to the cross reference to USSG § 2X3.1 on the basis that USSG § 2J1.2(c) should not apply because its commentary note says:

Because the conduct covered by this guideline is frequently part of an effort to avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment for an offense, a cross reference to § 2X3.1 (Accessory After the Fact) is provided. Use of this cross reference will provide an enhanced offense level when the obstruction is in respect to a particularly serious offense, whether such offense was committed by the defendant or another person.

USSG § 2J1.2 cmt. (emphasis added). Relying on this language, Greer pointed out that there had been no prosecution or conviction on the underlying offense (rape), and argued that there was not even sufficient evidence that it had been "committed." He said the encounter was merely an inappropriate but consensual sexual rendezvous. The district court disagreed:

The Court: But there's no dispute that this woman did come in, she did make a complaint that there had been a sexual assault committed against her; there is no dispute about that, is there?

Greer's Atty: There is no dispute that that allegation was made, that's correct.

The Court: And there is no dispute that that is in fact what was under investigation.

Greer's Atty: Yes, Your Honor.

The Court: Okay. The Court having considered the arguments of counsel [and] ... United States vs. Kimble , [305 F.3d 480 (6th Cir. 2002) ], concludes that the presentence report is correct in using the cross references, that the cross referencing is not only supported by the guidelines but it is actually required under the guidelines. So the Court will deny the defendant's objection to the presentence report based upon the cross references.

R. 53 at 12:5-20 (sentencing transcript).

Greer also moved for two downward departures. First, he claimed that this was "aberrant behavior" by him, warranting departure under USSG § 5K2.20, but the district court denied that claim on the basis that Greer, being a trained police officer, was particularly aware of the consequences of lying to an investigator (and of having sex with the possibly intoxicated subject of a late-night traffic stop, possibly through coercion or extortion). Greer also claimed, vaguely, that the woman's alleged misconduct (i.e., her falsely claiming that the sex was rape¹ ), warranted a departure under USSG § 5K2.10, but the district court rejected that claim as well.

The district court agreed with the PSR's advisory range of 70 to 87 months, considered the § 3553 factors, sentenced Greer to a below-guidelines sentence of 60 months, and thoroughly explained the reasons for its sentence. Greer moved for reconsideration, arguing that the sentence was too long because a lengthy prison sentence does not deter crime and consensual sex is not a serious crime. The district court rejected the arguments and denied the motion.

II.

A.

We review de novo the district court's interpretation and legal application of the Guidelines. United States v. Schock , 862 F.3d 563, 566-67 (6th Cir. 2017). Here the district court interpreted USSG § 2J1.2(c) as requiring that it apply a cross reference to USSG § 2X3.1, Accessory After the Fact, for an investigation into an underlying criminal offense of aggravated rape, resulting in a base offense level of 24 per USSG §§ 2A3.1(a)(2) and 2X3.1(a)(1). The court relied on United States v. Kimble , 305 F.3d 480, 485 (6th Cir. 2002), which holds that "[i]t is not necessary for the government to prove facts sufficient to establish a defendant's guilt as an ‘Accessory After the Fact’ in order to impose a sentence under [USSG] § 2X3.1."

Greer claims that the district court erred by applying USSG § 2X3.1 because the commentary to USSG § 2J1.2 presumes that an underlying offense was actually committed , not merely investigated,² meaning—in Greer's view—that the cross reference applies only if the prosecutor can prove by at least a preponderance of the evidence that the underlying crime actually occurred.³ Greer also points to the commentary to USSG § 2X3.1 as further support for this view, because it defines "underlying offense" as "the offense as to which the defendant is convicted of being an accessory, or ... the offense the defendant is convicted of having materially supported after its commission" (emphasis added).⁴ Finally, Greer relies on language from United States v. Shabazz , 263 F.3d 603, 610 (6th Cir. 2001), which says: "the definition of ‘underlying offense’ in section 2X3.1 specifically directs the use of the offense level of the underlying crime of conviction ,...