U.S. v. Hargrett
| Decision Date | 29 September 1998 |
| Docket Number | Docket Nos. 97-1205,97-1287,97-1277 |
| Citation | 156 F.3d 447 |
| Parties | UNITED STATES of America, Appellee, v. Vyron U. HARGRETT, aka Sealed Defendant # 1; Andre V. Williams, aka Sealed Defendant # 10; and Roger Mattison, aka Sealed Defendant # 14, Defendants-Appellants, Derrick D. Hargrett, aka Sealed Defendant # 2; Shondale L. Mable, aka Sealed Defendant # 3; Vernon W. Youngblood, Jr., aka Sealed Defendant # 4; Iris M. Stevens, aka Sealed Defendant # 5; Miles David Smith, aka Sealed Defendant # 6; David McKinney, aka Sealed Defendant # 7; Richard A. Brown, aka Sealed Defendant # 8; William Sanders, aka Sealed Defendant # 9; Alvin Branch, aka Sealed Defendant # 11; Alonzo Lewis, aka Sealed Defendant # 12; John Paul Pennisi, aka Sealed Defendant # 13 and Timothy Lewis, Defendants. |
| Court | U.S. Court of Appeals — Second Circuit |
Grant C. Jaquith, Assistant United States Attorney for the Northern District of New York, Syracuse, NY, (Thomas J. Maroney, United States Attorney for the Northern District of NY, of counsel), for Appellee.
J. Scott Porter, Syracuse, NY, for Appellant, Vyron U. Hargrett.
George F. Hildebrandt, Syracuse, NY, for Appellant, Andre V. Williams.
Bruce R. Bryan, Syracuse, NY, for Appellant, Roger Mattison.
Before: WINTER, Chief Judge, PARKER, Circuit Judge, and SCHWARZER, District Judge. *
Vyron Hargrett, Andre Williams, and Roger Mattison appeal from sentences imposed by Judge Munson after each pleaded guilty to various narcotics offenses. Hargrett and Williams received downward departures and now argue that the resultant sentences should be vacated because the district court failed to state reasons explaining, pursuant to 18 U.S.C. § 3553(c), the extent of the downward departure. Mattison, on the other hand, challenges the district court's determination of the quantity of crack cocaine for which he was held accountable, the failure to reduce his offense level for acceptance of responsibility, the characterization of his role as "minor," rather than "minimal," and the failure to reduce his offense level under the United States Sentencing Guidelines' (the "Guidelines") "safety valve" provision. We dismiss Hargrett's and Williams's appeals for lack of jurisdiction and affirm Mattison's sentence.
Hargrett was charged with, inter alia, engaging in a continuing criminal enterprise in violation of 21 U.S.C. §§ 841(a)(1), 843(b), and 846, and possessing crack cocaine with intent to distribute. After entering into a plea agreement with the government, Hargrett pleaded guilty to engaging in a continuing criminal enterprise involving the distribution of cocaine and crack cocaine in violation of 21 U.S.C. § 848. Hargrett acknowledged that he had participated in the distribution of at least 1.5 kilograms of crack cocaine and, consequently, was subject to a statutory minimum sentence of life imprisonment. However, the government moved pursuant to Guidelines § 5K1.1 for a downward departure because of Hargrett's substantial assistance to the government. The court granted this motion, departed downwardly from the appropriate Guidelines range, and sentenced Hargrett to 216 months' imprisonment. However, it did not explain how it determined the extent of the departure.
Williams was charged with, inter alia, engaging in a continuing criminal enterprise, conspiracy to distribute cocaine and crack cocaine, and possessing cocaine with intent to distribute. Pursuant to a plea agreement, Williams pleaded guilty to the conspiracy charge, which, after his acceptance of responsibility and role as a minor participant were taken into account, yielded a sentencing range of 108 to 135 months' imprisonment. The district court, however, downwardly departed, again after granting a government motion under Section 5K1.1, and sentenced Williams to 57 months' imprisonment. Once more, the court did not explain why it departed to this extent.
Williams and Hargrett appeal on the ground that the district court failed to explain adequately the extent of the downward departure from the Guidelines, as required by 18 U.S.C. § 3553(c).
Section 3553(c) provides in pertinent part:
The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence--
(1) is of the kind, and within the range [established by the Sentencing Guidelines], and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or
(2) is not of the kind, or is outside the range, [established by the Sentencing Guidelines], the specific reason for the imposition of a sentence different from that described.
18 U.S.C. § 3553(c)(1),(2). Hargrett and Williams rely principally upon our decision in United States v. Reyes, 116 F.3d 67 (2d Cir.1997), where we vacated a sentence based on the claim that, even when a district court departs downwardly from the Guidelines, it must indicate why it has imposed a particular sentence. See id. at 72. However, United States v. Lawal, 17 F.3d 560 (2d Cir.1994), held that because we lack jurisdiction to review a defendant's challenge to the extent of a downward departure, we similarly lack jurisdiction to entertain a challenge to the district court's explanation of the extent of that departure, absent evidence that the district court misunderstood its authority to depart. See id. at 563-64.
Reyes and Lawal are thus inconsistent. Both involved downward departures under Guidelines § 5K1.1, and both involved colorable claims that the sentencing judge had not sufficiently explained the extent of the departures. Reyes held that the sentence should be vacated and remanded for resentencing. Lawal held that we lacked jurisdiction to entertain the claim.
We hold that Lawal is the law of this circuit. In Reyes, the government never raised the jurisdictional issue, and we are confident that the Reyes panel, one member of which serves on this panel, would have dismissed the appeal had the issue come to its attention. 1 As we explained in Lawal, the statute which governs the appeal of criminal sentences, 18 U.S.C. § 3742, generally gives us jurisdiction to review the imposition of a downward departure only when raised on appeal by the government. See 18 U.S.C. § 3742(b)(3). On an appeal by the defendant, by contrast, we may only review: (i) the imposition of an upward departure; (ii) a sentence imposed in violation of law; (iii) a sentence imposed as a result of an incorrect application of the sentencing guidelines; or (iv) in the case of an offense for which there is no applicable guideline, a sentence that is plainly unreasonable. See 18 U.S.C. § 3742(a). Section 3742(a) does not generally confer jurisdiction on courts of appeals to review a district court's refusal to grant a downward departure or the extent of any downward departure that is granted. See United States v. Moe, 65 F.3d 245, 251 (2d Cir.1995); United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993) (per curiam).
For the reasons stated in Lawal, we believe that a simple failure to explain the extent of a downward departure is, without more, 2 unreviewable on an appeal by a defendant. See Lawal, 17 F.3d at 563 (). A legal structure that prohibits review of the extent of a downward departure while permitting review of the failure to explain that extent would not only be anomalous but also lead to appeals that could not have a practical effect on the appellants' sentences. We have circulated this opinion to the active judges of this court. See Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991).
Mattison was sentenced to 120 months' imprisonment after he pleaded guilty to conspiracy to possess crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In determining this sentence, the district court found Mattison accountable for the distribution of 50 to 150 grams of crack cocaine. In addition, the court found that Mattison was not eligible for a reduction in his offense level for acceptance of responsibility because he failed to notify the government of his intent to plead guilty, until the day before jury selection was scheduled to commence. See U.S.S.G. § 3E1.1(b)(2). The court also classified Mattison as a "minor" rather than "minimal" participant in the conspiracy. Finally, the court found that Mattison never gave the government a complete and truthful account of his criminal activities and was thus not eligible for a "safety valve" reduction pursuant to Sentencing Guidelines § 5C1.2(5).
The district court based its finding that Mattison is accountable for the distribution of over 50 grams of crack cocaine on tape recordings of drug transactions involving Mattison and on the testimony of Mattison's co-conspirators. Specifically, the government introduced at trial (of other defendants) recordings of Mattison's phone calls from January 5-8, 1996. When sentencing Mattison, Judge Munson observed that these phone conversations showed Mattison's participation in drug transactions with Hargrett and one David McKinney involving over 50 grams of crack cocaine. Moreover, Mattison's co-conspirators testified that these transactions involved primarily crack cocaine or powder cocaine that was cooked into crack for distribution.
Mattison argues that the district court erroneously determined the quantity of crack cocaine for which he is accountable by crediting the unreliable testimony of Mattison's co-conspirators and by counting transactions involving powder cocaine as involving crack cocaine. We disagree.
Because Mattison failed to object to the district court's...
To continue reading
Request your trial
-
U.S. v. Greer
...outside the range established by the Guidelines — that is, for departing.7 See 18 U.S.C. § 3553(c)(2). However, in United States v. Hargrett, 156 F.3d 447, 450 (2d Cir.), cert. denied, 525 U.S. 1048, 119 S.Ct. 607, 142 L.Ed.2d 547 (1998), we held that a court's failure to explain the extent......
-
U.S. v. Sanchez
...States v. Stinson, 465 F.3d 113, 114 (2d Cir.2006), or to appeal the extent of a downward departure, see, e.g., United States v. Hargrett, 156 F.3d 447, 450 (2d Cir.), cert. denied, 525 U.S. 1048, 119 S.Ct. 607, 142 L.Ed.2d 547 (1998); United States v. Doe, 996 F.2d 606, 607 (2d Cir.1993). ......
-
United States v. Hayes
...appropriate to depart by a certain number of months or guideline ranges below the initial sentencing range.”); United States v. Hargrett, 156 F.3d 447, 450 n. 1 (2d Cir.1998) (“A downward departure based on [§ ] 5K1.1 does not require the district [court] to pick a new offense level and a p......
-
United States v. Pruitt, Docket No. 14–1921–cr.
...below to the action that is challenged on appeal, we generally review only for plain error. Fed.R.Crim.P. 52(b); United States v. Hargrett, 156 F.3d 447, 451 (2d Cir.1998). Under § 3553(c), the sentencing judge in every case is required to "state in open court the reasons for its imposition......
-
Developements in the Second Circuit: 1997-98
...departure under § 5K2.0 was appropriate because of the defendant's cooperation with local authorities. See also United States v. Hargrett, 156 F.3d 447 (2d Cir. 1998) (defendant may not challenge the adequacy of a district court's explanation of the extent to which it took a downward depart......