U.S. v. Gapinski

• Decision Date: 12 May 2011
• Docket Number: No. 09-2267,09-2267
• Citation: United States v. Gapinski, No. 09-2267 (6th Cir. May 12, 2011)
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES EDWARD GAPINSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.JAMES EDWARD GAPINSKI, Defendant-Appellant.

No. 09-2267

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Dated: May 12, 2011

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 11a0312n.06

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF MICHIGAN

OPINION

Before: MOORE, WHITE, Circuit Judges; VARLAN, District Judge^*

KAREN NELSON MOORE, Circuit Judge. James Edward Gapinski has been sentenced three times for conspiracy to manufacture marijuana. On Gapinski's most recent appeal, this court held that the district court erred by anticipating a future Rule 35(b) motion when it granted a two-level departure for substantial assistance, rather than the four-level departure that the government had requested. On remand, the district court erroneously believed that it lacked authority to reconsider its two-level departure. In addition, while this appeal was pending before our court, the Supreme Court decided Pepper v. United States, — U.S. —, 131 S. Ct. 1229 (2011), which held that district courts may vary downward on account of post-sentencing rehabilitation. Pepper abrogates the portion of our prior opinion that prevented Gapinski from having the district court consider his own post-sentencing rehabilitation. For both reasons, we VACATE Gapinski's sentence andREMAND the case for resentencing. We also GRANT Gapinski's request to reassign the case to a different district court judge.

I. BACKGROUND

A. Gapinski's First Two Sentencing Hearings

On June 8, 2004, Gapinski was indicted for conspiracy to manufacture more than 100 marijuana plants in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(vii). This court detailed the substantive facts of that offense in United States v. Gapinski (Gapinski II), 561 F.3d 467, 469-73 (6th Cir. 2009). Gapinksi pleaded guilty on September 27, 2004.

Prior to his first sentencing hearing, the government filed a motion based on United States Sentencing Guidelines (U.S.S.G.) § 5K1.1 for a four-level downward departure because Gapinski had provided substantial assistance:

The government explained that Gapinski had given a proffer concerning his involvement in the marijuana-grow conspiracy and had provided significant information on the roles played by his three codefendants as well as the two other coconspirators, [Joseph] Hill and [Steven] Mayer. Because of Gapinski's early cooperation and willingness to testify, the government noted, each of Gapinski's three codefendants pleaded guilty rather than proceeding to trial, and coconspirators Hill and Mayer were indicted for their role in the conspiracy. The government further explained that Gapinski had agreed to testify against Hill and Mayer should they decide to go to trial.

Gapinski II, 561 F.3d at 470. When the district court sentenced Gapinski on December 22, 2004, it departed downward by two, rather than four, offense levels, "anticipating]" that a Rule 35(b) motion would compensate Gapinski for any future assistance. Id. at 477. Gapinski's adjusted Guidelines range was 151 to 188 months of imprisonment. The district court sentenced Gapinskito 156 months of imprisonment or, in the event that the Guidelines were not mandatory, 120 months. This court vacated the sentence following Booker. United States v. Gapinski, 226 F. App'x 592 (6th Cir. 2007) (Gapinski I).

On January 18, 2008, the district court resentenced Gapinski to 120 months of imprisonment. At this second sentencing hearing, Gapinski sought "an additional two-level downward departure and/or a variance" for the substantial assistance that he rendered between the first two sentencing hearings. Gapinski II, 561 F.3d at 475. "Specifically, Gapinski made himself available to testify against a coconspirator, Joseph Hill, which led Hill to plead guilty." Id. The Bureau of Prisons transported Gapinski from Oklahoma to Michigan so that he could testify against Hill. While Gapinski was being held in Michigan awaiting Hill's trial, Hill pleaded guilty, obviating any need for Gapinski's testimony. His willingness to stand ready to testify, however, made Gapinski vulnerable because "grapevine gossip" and the website www.whosarat.com made his cooperation with the government public knowledge among inmates. The district court denied Gapinski's motion.

When Gapinski appealed from the second sentencing hearing, this court reversed on two bases, both of which related to substantial assistance. First, the sentencing transcript "does not show that the district court ever considered or explained its reasons for rejecting Gapinski's argument for a lower sentence based on this substantial additional cooperation." Id. at 475. Second, at the first sentencing, "the district court... erred by improperly looking to the possibility of a post-sentencing reduction under Rule 35(b) in considering the § 5K1.1 motion," a mistake that the district court did not correct at the second sentencing. Id. at 477. Additionally, this court instructed the district courtto "consider Gapinski's arguments for a lower sentence based upon alleged diminished capacity due to ADHD [attention deficit hyperactivity disorder] and the need to avoid unwarranted similarities in the sentences imposed upon codefendants who are not similarly situated." Id. at 478.

B. The Third Sentencing Hearing

On September 25, 2009, the district court sentenced Gapinski for a third time, again to a term of 120 months. At the outset, Gapinski's attorney "ask[ed] the Court to reconsider the initial [§] 5K1.1 motion," which resulted in this exchange:

The Court: I've already ruled on the presentence substantial assistance, haven't I?

Ms. Lasker: Yes, Your Honor, I believe that you did. But my understanding of--

The Court: And I gave two points to that, didn't I, rather than four?

Ms. Lasker: You did give two points rather than four.

The Court: Why should I reconsider?

Ms. Lasker: Because my understanding is that that's one of the things that the Court of Appeals asked you to review.

The Court: Okay. I've reviewed it, I've reconsidered it, and I'm not going to change.

R. 218 (3d Sent. Tr. at 3). Later in the hearing, the district court explained its belief that it lacked authority to reconsider the § 5K1.1 motion:

In order for the Court to go down below the guidelines on a substantial departure, the Court has to by statute--and again, the Court of Appeals never mentioned this--... have a motion before it by the government in which the government indicates that the government believes [the assistance] has been substantial and material. The government hasn't done that since the initial downward departure of two....

[C]ontrary to what I think I see in this Court of Appeals hint, this Court doesn't have the ability to go back and say, Well, you know, I think... I made a mistake the first time--and that's not good. That just isn't good jurisprudence. This Court had everything before it [at the first sentencing].

Id. at 21-22. The district court also listened to a reading of a letter from Gapinski, who waived his appearance. In the letter, Gapinski explained that his fellow inmates view him as a snitch and he fears being "checked in," which "means that other inmates want to run [the prisoner] off the compound" and results in the prisoner being sent to the "hole." Id. at 7. The district court, however, said that making himself available to testify was "just part of [Gapinski's] plea agreement." Id. at 22-23. The district court found that a proffer of testimony is less substantial than trial testimony.

Next, the district court declined to reduce Gapinski's sentence based on his diminished capacity due to ADHD and his tendency to self-medicate with marijuana. The district court had previously denied a request for funds for expert evaluation because "this limited remand is not a competency issue." R. 207 (Order Denying Request for Authorization of Expert Services). At sentencing, the district court found that there was no "clinical analysis" confirming that Gapinski has ADHD and no "nexus" between having ADHD and growing marijuana. R. 218 (3d Sent. Tr. at 19). It therefore declined to vary downward on account of ADHD.

Finally, Gapinski raised the issue of codefendent disparities. His codefendant, Michael Jonathan Vinson, had orchestrated the marijuana-growing operation from state prison, while Gapinski organized the activity outside of prison. Vinson was still serving a four-to-twenty-year state sentence when the federal district court sentenced Vinson on this conspiracy to manufacture marijuana. Vinson had 21 criminal history points, while Gapinski had 14. Both numbers fall withinCriminal History Category VI. Additionally, both defendants were career offenders under U.S.S.G. § 4B1.1, which mandates the use of Criminal History Category VI. The government filed a § 5K1.1 motion for Gapinski, but not for Vinson. As a result, Gapinski's adjusted offense level was 29, while Vinson's was 31. Both defendants received sentences of 120 months, but Gapinski argued that his sentence should be shorter than Vinson's. The district court disagreed for two reasons. First, the district court found no substantial difference between Vinson and Gapinski based on their "extensive criminal records" and "their behavior in this particular conspiracy." Id. at 25-26. Second, Vinson's federal sentence will run consecutively with his unrelated state sentence. "So if we're talking about who got the greatest sentence on this,... Mr. [Vinson] will in all likelihood have served one or two or three or four years longer when he is released on supervised release than" Gapinski will have served. Id. at 24. The district court concluded that the § 3553(a) factors "make[] this sentence reasonable under the circumstances." Id. at 27.

II. DISCUSSION

A. Substantial Assistance¹

This court's prior opinion held "that the district court... erred by improperly looking to the possibility of a post-sentencing reduction under Rule 35(b) in...