U.S. v. Grant, 07–3831.

• Decision Date: 11 January 2011
• Docket Number: No. 07–3831.,07–3831.
• Citation: 636 F.3d 803
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Kevin GRANT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

636 F.3d 803

UNITED STATES of America, Plaintiff–Appellee,

v.Kevin GRANT, Defendant–Appellant.

No. 07–3831.

United States Court of Appeals, Sixth Circuit.

Argued: March 3, 2010.Decided and Filed: Jan. 11, 2011.

ARGUED: Dennis Belli, Columbus, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Dennis Belli, Columbus, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, Robyn Jones Hahnert, Kevin Winters Kelley, Assistant United States Attorneys, Columbus, Ohio, for Appellee.Before: BATCHELDER, Chief Judge; KEITH, MERRITT, MARTIN, BOGGS, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.GIBBONS, J., delivered the opinion of the court, in which BATCHELDER, C.J., MARTIN, BOGGS, GILMAN, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, JJ., joined. MERRITT, J. (p. 819), delivered a separate concurrence. WHITE, J. (pp. 819–22), delivered a separate opinion concurring in part and dissenting in part. CLAY, J. (pp. 822–27), delivered a separate dissenting opinion, in which KEITH, MOORE, and COLE, JJ., joined.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Kevin Grant pled guilty to possession of a firearm, conspiracy to commit money laundering, and operation of a continuing criminal enterprise. The district court sentenced Grant to twenty-five years in prison, the mandatory minimum sentence for those charges. After Grant's sentence was affirmed by a panel of this court, the government filed a motion pursuant to Federal Rule of Criminal Procedure 35(b) to reduce his sentence based on his substantial assistance in the prosecution of others. The district court granted the motion and reduced Grant's sentence to sixteen years. Grant now appeals. He claims first that the district court erred by not considering the 18 U.S.C. § 3553(a) factors when deciding the Rule 35(b) motion. Second, Grant claims that the district court erred in its calculation under the United States Sentencing Guidelines during his original sentencing. For the following reasons, we affirm.

I.

A.

In 2004, federal agents discovered via an authorized wiretap of Grant's cellular telephone that Grant headed a heroin distribution ring in the Columbus, Ohio, area. Grant traveled to New York to obtain more than 100 grams of heroin at a time, which he then sold to users in the Columbus area. Grant also “fronted” heroin to at least four distributors for sale to customers during his time in New York. On August 27, 2004, a search warrant was executed at the home that Grant shared with Tia Holley, one of his distributors. Agents seized 168.8 grams of heroin, a 9mm Luger pistol with ammunition, and $4,174 in cash. A search of a separate apartment rented by Grant yielded multiple firearms and ammunition. Grant also stored both heroin and money at the home of Tameka Hairston, the mother of one of his children. Investigators determined that Holley assisted Grant in concealing the illegal source of his income by depositing over $80,000 into her bank account and by submitting a false loan application to purchase a 2004 Lincoln Aviator. Grant also instructed Hairston to wire money from Columbus to an associate in New York in order to conceal the source of the funds.

Grant was indicted on September 23, 2004, for possession with intent to distribute heroin and knowing possession of a firearm in furtherance of a drug-trafficking crime. On January 13, 2005, the government filed a superseding indictment charging an additional eighty-four counts, including conspiracy to commit money laundering and operating a continuing criminal enterprise. Grant subsequently entered into a plea agreement with the government. Under the agreement, Grant agreed to plead guilty to counts 3, 7, and 89 of the superseding indictment in exchange for dismissal of the remaining counts. The parties agreed further that the quantity of heroin attributable to Grant was at least one kilogram but less than three kilograms and that Grant supervised at least five individuals in his heroin business.

On April 15, 2005, Grant pled guilty to the knowing possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), which carried a mandatory minimum sentence of five years in prison consecutive to any other sentence imposed; conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), which carried a maximum sentence of twenty years in prison; and operation of a continuing criminal enterprise in violation of 21 U.S.C. § 848, which carried a mandatory minimum sentence of twenty years in prison and a maximum sentence of life in prison. The mandatory minimum sentence, therefore, was twenty-five years in prison.

The Presentence Report (“PSR”) first grouped the continuing criminal enterprise and money laundering counts by applying the offense level of the most serious count. See U.S.S.G. § 3D1.2(b) (2004). Operation of a continuing criminal enterprise carries a base offense level of 38, see U.S.S.G. § 2D1.5 (2004), but money laundering takes the offense level of the underlying crime, see U.S.S.G. § 2S1.1(a)(1) (2004). The PSR then determined that the underlying offense of the money laundering count was the continuing criminal enterprise, and thus the money laundering count carried a base offense level of 38 as well. The specific offense characteristics of money laundering provide for a two-level increase if the defendant was convicted under 18 U.S.C. § 1956(h), giving Grant's money laundering count an adjusted offense level of 40. See U.S.S.G. § 2S1.1(b)(2)(B) (2004). Once grouped, therefore, Grant had an offense level of 40, which was then reduced three points to 37 for acceptance of responsibility. With a criminal history category of V, Grant's Guidelines range was 324 to 405 months imprisonment for the continuing criminal enterprise and money laundering counts, with any sentence for the firearm count to be served consecutively. The PSR recommended the minimum guideline sentence of 384 months, or thirty-two years, 324 months on the continuing criminal enterprise and money laundering counts followed by the 60 month mandatory minimum sentence on the firearm count.

Prior to sentencing, the government filed a request for a downward departure pursuant to U.S.S.G. § 5K1.1 (2004). The government explicitly did not request a departure under 18 U.S.C. § 3553(e); thus, the district court lacked the authority to impose a sentence below the statutory minimum. Rather, citing Grant's “excellent” cooperation to date, the government recommended the statutory minimum sentence of twenty-five years, seven years below the bottom end of the Guidelines range. The government indicated that Grant's cooperation was not yet complete and that, if he continued to testify truthfully, the government would file a motion pursuant to Rule 35(b) recommending a further reduction to sixteen years. At the sentencing hearing on October 6, 2005, Grant objected to the calculation of his offense level. The district court denied the objections, finding that the calculations in the PSR were correct. The district court then sentenced Grant to 300 months, or twenty-five years, in prison. On appeal, a panel of this court affirmed. See United States v. Grant, 214 Fed.Appx. 518 (6th Cir.2007). The panel declined to address Grant's argument that the district court improperly calculated his Guidelines range because any alleged errors were rendered harmless when the district court imposed the statutory minimum sentence. Id. at 520–21.

B.

On April 16, 2007, the government filed a request for a sentence reduction pursuant to Rule 35(b). One effect of this motion was that the district court for the first time had the authority to impose a sentence below the statutory minimum. See Fed.R.Crim.P. 35(b)(4). The government indicated that Grant's cooperation was now “substantially complete” and he had “contributed to the resolution of the charges pending against the vast majority of his ... fellow heroin distributors.” The government also noted that Grant testified for the prosecution in a state homicide trial. The government therefore requested a nine-year sentence reduction to sixteen years, equal to half of the sentence originally recommended in the PSR.

Grant joined the motion and requested that his sentence be further reduced below sixteen years. Grant argued that a further reduction was warranted because: (a) he provided substantial assistance in the prosecution of his co-conspirators; (b) his cooperation went beyond what was contemplated by the plea agreement because he testified for the state in an Ohio homicide prosecution carrying the death penalty; (c) the evidence that supported the firearm count under 18 U.S.C. § 924(c) could have been a two-level Guidelines enhancement rather than a separate conviction; (d) the scope of Grant's continuing criminal enterprise was smaller than many others; (e) a criminal history category of V overrepresented the seriousness of Grant's record; (f) the money laundering count should have been “subsumed” into the continuing criminal enterprise count; and (g) the mother of two of Grant's children had recently died from cancer, leaving the children without a natural parent available as a caregiver.

A hearing was held on the Rule 35(b) motion on April 27, 2007. The court considered arguments as to whether any additional reduction was warranted by Grant's testimony in the state death penalty case but indicated that the remainder of Grant's arguments were not relevant at a Rule 35(b) hearing:

The Court is not here today to talk in terms of resentencing and bringing up issues of the two-point enhancement instead of a five-year consecutive charge. The Court is not here today to determine the scope and breadth of the CCE—that is, continuing criminal enterprise—that...