U.S. v. Houston
| Decision Date | 27 June 2008 |
| Docket Number | No. 06-6329.,06-6329. |
| Citation | 529 F.3d 743 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James E. HOUSTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: David M. Eldridge, Eldridge & Blakney, Knoxville, Tennessee, for Appellant. John P. MacCoon, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee. ON BRIEF: David M. Eldridge, Loretta G. Cravens, Eldridge & Blakney, Knoxville, Tennessee, for Appellant. John P. MacCoon, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.
Before: CLAY, SUTTON, and McKEAGUE, Circuit Judges.
McKEAGUE, J., delivered the opinion of the court, in which SUTTON, J., joined. CLAY, J. (pp. 757-63), delivered a separate dissenting opinion.
Defendant-appellant appeals from a judgment sentencing him to a prison term of twelve months and a day, followed by three years of supervised release. Appellant contends the district court erred by granting the government's motion to strike its amended judgment of sentence, under which he had been sentenced to probation only. In addition, appellant contends the reinstated original sentence is procedurally and substantively unreasonable. Finding that the district court did not err by striking the amended judgment and that the sentence ultimately imposed is not unreasonable, we affirm the judgment of the district court.
This appeal stems from an illegal gambling enterprise known as "the numbers." From 2000 to 2005, defendant James E. Houston, of Knoxville, Tennessee, and several co-conspirators ran an illegal gambling operation in the states of Alabama, Georgia and Tennessee that resembled a state lottery in many respects. Defendant, an otherwise legitimate and apparently successful businessman, served as the "bank" for the operation and derived substantial benefit from his participation.
In March 2006, a two-count bill of information was filed in the U.S. District Court for the Eastern District of Tennessee, alleging that defendant conspired to conduct an illegal gambling business involving a numbers lottery, in violation of 18 U.S.C. §§ 371 and 1955, and conspired to launder the proceeds of an illegal gambling operation, in violation of 18 U.S.C. §§ 1956(h) and 1957. Defendant pleaded guilty to both charges in April 2006. Pursuant to the plea agreement, defendant agreed to forfeit money and property obtained as a result of the gambling operation. The plea agreement includes the government's acknowledgment that defendant had provided "substantial assistance" by encouraging his co-defendants to plead guilty, based upon which the government agreed to file a motion for downward departure pursuant to § 5K1.1 of the Sentencing Guidelines. The government further agreed to "represent to the Court that any lawful sentence that the Court deems appropriate is acceptable to the United States." Plea Agreement ¶ 7, JA 57.
Defendant was sentenced by the district court on July 19, 2006. According to the presentence report ("PSR") prepared by the Probation Department, defendant's base offense level under the Sentencing Guidelines was 12. The PSR recommended a four-level increase due to defendant's role as an organizer or leader of a scheme involving five or more participants, pursuant to § 3B1.1(a) of the Guidelines. Defendant's offense level was reduced by three levels due to his acceptance of responsibility. Defendant's single prior misdemeanor conviction in 1990 placed him in criminal history category I. The resulting Guidelines sentencing range was 15 to 21 months. Defendant did not object to the PSR.
During sentencing, the district court noted that defendant had worked hard to establish himself as a businessman, had cooperated with the government, and had agreed to a substantial forfeiture of property. Accordingly, the court granted the government's motion for downward departure. The court declined defendant's request to impose a sentence of probation only, finding that defendant was the "organizer," "the main man," whom the other co-conspirators had trusted. Sentencing tr. pp. 16-17, JA 202-03. The court imposed a sentence of 12 months' imprisonment on each count, the two sentences to run concurrently. This sentence, the court observed, would afford "adequate deterrence" and "just punishment." Id. The court also imposed a supervised release term of three years. Upon request of defense counsel, the court changed the prison sentence to twelve months and a day so that defendant would be eligible for an earlier release from the Federal Bureau of Prisons. The court then asked if the parties had any objections to the sentence. Defendant did not object.
On July 24, 2006, five days after sentencing and prior to entry of the judgment, defendant filed a "motion for reconsideration." Defendant contended the sentence imposed, representing a downward departure of three months from the low end of the advisory Guidelines range, was still greater than necessary to comply with the purposes of sentencing set forth at 18 U.S.C. § 3553(a)(2). He noted that the court had not expressly considered his arguments: (1) that he grew up in a community where playing the numbers was culturally accepted; and (2) that he had a history of assisting others in the community, had strong familial relationships, and provided support for his children and mother. Further, he complained that the sentence was disproportionately harsh in comparison with sentences imposed on other similarly situated defendants in the Northern Division of the Eastern District of Tennessee. In this respect, the motion was supported by the affidavit of defendant's attorney, David M. Eldridge, stating in pertinent part:
Accordingly, based upon my personal experience as well as following cases in this court since 1988, to the best of my personal knowledge, no individual who has pled guilty to involvement in an illegal gambling business, cooperated, and received a Motion for Downward Departure has ever been sentenced to a term of incarceration in the Northern Division of the Eastern District of Tennessee. This category of defendants, who have not been incarcerated, includes those who have been denominated as an organizer or leader under the guidelines.
Eldridge aff. ¶ 5, JA 128. The motion represented that the government "does not oppose this motion for reconsideration if the Court deems it appropriate to reconsider Mr. Houston's sentence." Motion ¶ 11, JA 125.
Three days later, without conducting a hearing, the district court issued a memorandum and order granting defendant's motion. JA 148. The court confirmed that it had previously considered defendant's history and personal characteristics raised in the motion for reconsideration. The court acknowledged, however, that it had not previously considered the sentencing disparities issue. After considering the "new information" presented by defense counsel and "independently researching" the matter, the court concluded that defense counsel was correct and that a term of incarceration was too harsh and greater than necessary to comply with the purposes of sentencing. Memorandum and Order pp. 2-3, JA 149-50. The court ordered that the judgment of sentence be amended by substituting a period of two years' probation for the original prison term of twelve months and a day. The judgment of sentence was entered on July 31, 2006.
On August 3, 2006, the government moved to strike the amended judgment for three reasons: (1) because the court lacked authority to amend defendant's sentence under Rule 35(a) of the Federal Rules of Criminal Procedure; (2) because defendant had misrepresented the government's position on the motion for reconsideration; and (3) because the factual basis for the sentence reduction was inaccurate. The district court granted the government's motion to strike the amended judgment on October 3, 2006. In a 10-page memorandum and order, the court explained that it had granted the motion for reconsideration and reduced defendant's sentence for two reasons. First, the court had been persuaded by defendant's new argument, as well as its own independent research, concerning the need to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a)(6). Memorandum and Order p. 3, JA 172. Second, despite being "acutely aware that it was on legal ground of questionable firmness when it granted defendant's motion for reconsideration," the court had relied on defendant's representation that the government had no objection to the motion. Id. at 9, JA 178.
When the government belatedly raised its objection through the motion to strike, explaining that the earlier, inaccurate representation of its position had been the product of a miscommunication, the court was constrained to acknowledge that it was without authority to correct the original sentence under Rule 35(a). Id. at 8-9, JA 177-78. The court nevertheless maintained that it had not fully considered the sentence disparities factor when it originally sentenced defendant. Id. at 9, JA 178. Further, the court acknowledged that the government's opposition to the reduced sentence demonstrated that the record remained incomplete and inadequate to enable fair comparison of similarly situated defendants. Hence, the record remained insufficiently developed to permit a determination whether defendant's twelve-months-and-a-day prison term constituted an unwarranted disparity under § 3553(a)(6). Yet, being without authority to alter the originally imposed sentence, the court was "compelled to reimpose the sentence originally announced on July 19, 2006." Id. at 10, JA 179. The amended judgment was entered on October 10, 2006 and this appeal followed.
The district court concluded that it did not have authority to correct the originally pronounced sentence and therefore granted the ...
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