U. S. v. Baker
| Decision Date | 16 March 2009 |
| Docket Number | No. 07-5412.,07-5412. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Myron BAKER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KEITH, COLE, and McKEAGUE, Circuit Judges.
Defendant Myron Baker appeals the 300-month sentence he received following his guilty plea for conspiracy to distribute cocaine hydrochloride. For the reasons stated below, we AFFIRM in part, REVERSE in part, and REMAND to the district court for the limited purpose of resentencing defendant after determining whether he qualifies as a career offender under the Sentencing Guidelines.
This case arose out of a joint investigation by local and federal law enforcement agents into a drug trafficking organization coordinated by defendant and Rodney Bates in Chattanooga, Tennessee. Through confidential sources and authorized wiretaps, agents learned that defendant acted as the primary supplier for the organization, obtaining cocaine hydrochloride from Atlanta, Georgia.
On June 13, 2006, a federal grand jury in the Eastern District of Tennessee returned a fourteen-count indictment against defendant and eleven other individuals, including Rodney Bates and defendant's half brother, Jermaine Baker.1 The first count charged all twelve defendants with conspiracy to distribute five kilograms or more of cocaine hydrochloride, fifty grams or more of crack cocaine, and 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), and 846. Counts ten and eleven charged defendant individually with possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On September 11, 2006, defendant appeared before the district court with counsel and entered a guilty plea pursuant to a plea agreement. Defendant pleaded guilty to conspiracy to distribute a mixture or substance containing five kilograms or more of cocaine hydrochloride, as charged in count one.
Defendant appeared before the district court for sentencing on March 29, 2007. He objected to the Presentence Investigation Report's ("PSR") recommendation of a four-level enhancement for his leadership role in the offense and a two-level enhancement for possession of a firearm in the course of a drug trafficking offense. He also challenged the PSR's conclusion that he qualified as a career offender. The district court granted defendant's objection regarding the firearm enhancement, but denied his other two objections. After applying a full three-level reduction for acceptance of responsibility under U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 3E1.1, the district court determined that the total offense level was 34 and the criminal history category was VI, which yielded a Guidelines range of 262 to 327 months. Acknowledging the advisory nature of the Guidelines, the district court then sentenced defendant to a term of 300 months' imprisonment. Defendant timely appealed his sentence.2
Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review a district court's sentencing decisions "under a deferential abuse-of-discretion standard," for reasonableness. Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 591, 169 L.Ed.2d 445 (2007); United States v. Stephens, 549 F.3d 459, 464 (6th Cir.2008). This inquiry consists of both a procedural and a substantive component. Gall, 128 S.Ct. at 597.
First, we must "ensure that the district court committed no significant procedural error." Id. A sentence is procedurally unreasonable if the district court fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain the chosen sentence. Id. We review the district court's application of the Sentencing Guidelines de novo and the district court's findings of fact at sentencing for clear error. United States v. Hunt, 487 F.3d 347, 350 (6th Cir.2007).
If the sentence is procedurally sound, we then must consider "the substantive reasonableness of the sentence imposed." Gall, 128 S.Ct. at 597. A sentence is substantively unreasonable if the district court "selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor." United States v. Conatser, 514 F.3d 508, 520 (6th Cir.2008). Sentences imposed within a properly-calculated Guidelines range enjoy a rebuttable presumption of substantive reasonableness on appeal. United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir.2008) (en banc); see also Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007) ().
On appeal, defendant makes several challenges to the district court's Guidelines calculations. United States v. Thompson, 515 F.3d 556, 561 (6th Cir.2008) (citation omitted). Here, defendant alleges that the district court erred by applying an offense level enhancement for his leadership role in the offense, applying a criminal history score enhancement for committing the offense while on probation, and classifying him as a career offender.
Defendant argues that he improperly received an offense level enhancement for his leadership role in the offense. The Guidelines provide for a four-level enhancement "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." U.S.S.G. § 3B1.1(a).
First, defendant appears to argue that the district court used an overly broad definition of "participants" in finding that the criminal activity involved at least five participants. A "participant" is defined as "a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1 cmt. n. 1. Here, it is undisputed that the indictment charged at least twelve individuals for their involvement in this drug conspiracy, and the record indicates that at least six of those co-defendants— not including defendant himself—pleaded guilty to the charges. Moreover, defense counsel admitted at the sentencing hearing that "I believe in this case there were definitely more than four people involved in the total conspiracy." Sentencing Tr. at 3, J.A. at 178. Thus, it is clear that the offense involved five or more "participants."
Second, defendant argues that there was no evidence that he directly supervised five or more participants. But "a defendant whose sentence is enhanced under § 3B1.1(a) need only supervise or manage one of the five or more other participants." United States v. Robinson, 503 F.3d 522, 529 (6th Cir.2007) (emphasis added); see also U.S.S.G. § 3B1.1(a) cmt. n. 2 (providing that, "[t]o qualify for an adjustment under this section, the defendant must have been the organizer [or] leader . . . of one or more other participants"). Here, the PSR indicated that defendant acted as the supplier for the drug trafficking organization. It also detailed conversations between defendant and other individuals, which indicated that defendant and Rodney Bates were the organizers and leaders of the organization. Because defendant did not object to the PSR's factual allegations, the district court was allowed to accept them as true. See United States v. Carter, 355 F.3d 920, 925 (6th Cir.2004) () (quoting United States v. Levy, 250 F.3d 1015, 1018 (6th Cir.2001)). Based upon the evidence before it, the district court did not clearly err in finding that defendant was the organizer or leader of at least one participant in the offense.
Despite defendant's unsupported assertions on appeal, the district court properly concluded that defendant "was an organizer or leader of a criminal activity that involved five or more participants," and therefore did not err in applying the fourlevel enhancement under § 3B1.1(a).
Defendant next argues that the district court improperly added two points to his criminal history score for committing the offense while on probation. The Guidelines provide for a two-point enhancement in a defendant's criminal history score "if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." U.S.S.G. § 4A1.1(d).
We find no error by the district court in determining that defendant committed the instant offense while on probation. The PSR indicated that defendant was on probation for DUI and possession of marijuana at the time he committed the offense for which he pleaded guilty. Defendant did not object to this factual finding at his sentencing hearing, so the district court properly accepted it as true....
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