U.S. v. Judge

Decision Date15 August 2011
Docket NumberNo. 09–2624.,09–2624.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Michael JUDGE, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit


ARGUED: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Shane N. Waller, Assistant United States Attorney, Bay City, Michigan, for Appellee. ON BRIEF: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Shane N. Waller, Assistant United States Attorney, Bay City, Michigan, for Appellee.Before: BOGGS, GILMAN, and COOK, Circuit Judges.


BOGGS, Circuit Judge.

Michael Judge pleaded guilty to conspiracy to distribute the drug “ecstacy,” in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court granted Judge a 24–month downward variance to account for his cooperation with the government, and sentenced Judge to 71 months of imprisonment. Judge appeals his sentence, arguing that the district court failed to consider what it should have—several of his mitigating arguments—and, instead, considered what it should not have—the possibility of future sentence relief under Rule 35 of the Federal Rules of Criminal Procedure. For the reasons set forth below, we conclude that the record does not demonstrate that the district court committed any error, and we therefore affirm Judge's sentence.


On December 12, 2007, Judge was indicted along with fourteen others for conspiring to distribute and to possess with intent to distribute ecstacy, 1 in violation of 21 U.S.C. §§ 841(a)(1) and 846. On August 20, 2008, Judge was charged in a superseding indictment, which added four new defendants but no new charges.

On January 9, 2009, Judge entered into a plea agreement with the government. Judge agreed to plead guilty to count one of the single-count indictment and stipulate to the following:

From about 2005 to December 2007, defendant agreed with one or more of his co-defendants to possess with intent to distribute and to distribute quantities of ecstasy in the Eastern District of Michigan and elsewhere. During this time frame, defendant participated directly and indirectly in the purchase and distribution of 78,000 ecstasy tablets, which is equivalent to approximately 8,970 kilograms of marijuana for purposes of determining defendant's offense level.

The parties agreed that the Guidelines range was 87–108 months in prison, and Judge waived his right to appeal his “conviction” if the court sentenced him within that range.2

On March 15, 2009, the district court accepted Judge's guilty plea. At the plea hearing, Judge explained that he received the ecstasy from two individuals and then gave it to three others to distribute. Judge also confirmed that he was responsible for the distribution of 78,000 ecstasy tablets.

Prior to sentencing, a United States Probation Officer prepared a Presentence Report (“PSR”). The PSR calculated Judge's base offense level to be 34, and then subtracted two levels because Judge met the criteria for the Guidelines' “safety-valve” reduction, see USSG § 5C1.2, and subtracted another three levels because Judge accepted responsibility, see id. § 3E1.1. The PSR noted that Judge had no criminal history and accordingly placed him in criminal history category I. Based on Judge's total offense level of 29 and criminal history category of I, the PSR calculated his Guidelines range to be 87 to 108 months in prison. Neither Judge nor the government filed any objections to the PSR.

On September 22, 2009, Judge filed a motion for either a downward departure or a variance. The motion argued that Judge's was not a “heartland” case and pointed out that he had no prior criminal record, had maintained steady employment, and recognized the importance of education. The motion further noted that Judge had remained drug-free while out on bond, has overall lived an exemplary life while on bond, and posed no threat to public. The motion also indicated that Judge had provided substantial assistance to the government, which would be detailed at the time of sentencing, and that he was genuinely remorseful for his conduct. The motion did not request a sentence of a particular length, but rather asked only generally for a downward departure or variance.

In early December 2009, Judge obtained a new attorney, who continues to represent him on appeal. On December 11, 2009, Judge filed a supplemental motion for a variance, which included a half-page memorandum of law. Specifically, Judge sought a variance based on the substantial assistance that he had provided to the government, which he detailed in a supplemental filing, and he stated in the memorandum that the court is required to consider his request pursuant to United States v. Blue, 557 F.3d 682, 686 (6th Cir.2009), and United States v. Petrus, 588 F.3d 347, 356 (6th Cir.2009).

Judge's sentencing hearing was on December 17, 2009. Early in the proceeding, the district court stated that it read Blue and Petrus to indicate that it had an obligation to consider the evidence of Judge's assistance to the government as part of the section 3553(a) sentencing factors, even though the government had not filed a motion under USSG § 5K1.1 based on substantial assistance. The parties discussed that legal issue at length, as well as the scope of the assistance that Judge had provided. The government explained that it had not filed a 5K1.1 motion because the relevant investigations and Judge's assistance were both still ongoing, and it therefore could not yet evaluate what relief Judge would be entitled to. The government argued that, [i]n theory, the defendant could show up at a trial and completely change his story and the cases could ultimately be dismissed which would negate any cooperation he has done.” The government did, however, confirm that the information Judge had provided to the court about his assistance was, at the time of the hearing, accurate.

Next, Judge made four distinct arguments in favor of a lower sentence. First, Judge's counsel discussed at length the fact that Judge terminated his criminal conduct before he was caught by investigators. Second, counsel argued that Judge has a significant employment history, is a successful businessman, and has tried to better himself. Third, counsel noted that Judge previously had a substance-abuse problem, but has had no positive drug tests since being charged. Finally, both counsel and, to a greater extent, Judge himself argued that Judge fully accepted responsibility and was truly sorry for his conduct.

Finally, the district court explained its sentence. The court noted that the fact that Judge had stopped working to distribute drugs before being caught was a “significant” mitigating factor. The court went on to explain that, “on the other hand,” Judge was involved in a substantial drug conspiracy that involved large amounts of controlled substances and was “involved not only in the distribution but also in the financing.” The court further noted that, although Judge's entrepreneurial skills were impressive, it was how he employed those skills that got him into trouble to begin with. Next, the district judge explained to Judge that, “you've got to correct your behavior if you ultimately want to accomplish things in life that I do believe you wish to do.” The court explained that, having considered both the Guidelines and separately considered the section 3553(a) sentencing factors—except for Judge's cooperation, it would sentence Judge to 95 months in a prison that offers a comprehensive drug-treatment program. Finally, the court considered Judge's cooperation with the government. The court noted that Judge's cooperation was consistent with that in cases where it had given sentence reductions of 30 to 40 percent pursuant to 5K1.1 motions. However, the court explained that, [i]n this case, the assistance [Judge] may provide the government may not be complete and certainly that is the point that's been advanced by the government.... For that reason that I agree with, I believe that a 25 percent reduction is warranted by reason of the application of the 3553(a) factors....” 3 The court accordingly sentenced Judge to 71 months in prison.

After explaining the sentence, the district court asked counsel if he had “any questions or objections to the sentence that has not been previously risen [sic]?” Defense counsel responded that he had no objections, but asked the court to clarify whether its analysis of the section 3553(a) factors included Judge's cooperation. The court responded that it did include Judge's cooperation, and that it indeed had stated precisely how much credit it had given Judge for his cooperation. After directing the marshal to take Judge into custody that day, the court again asked defense counsel if he had “anything further.” Counsel asked the court if it had indicated that it would recommend a substance-abuse treatment program for Judge, and the court responded in the affirmative. Counsel then asked the court if it would recommend that Judge be placed at the prison closest to his parents' home, and the court responded that it would do so. Finally, the court again asked defense counsel if he had anything further, and counsel responded that he did not.

Judge filed his timely notice of appeal on December 23, 2009. This court has jurisdiction to review the final judgment of the district court pursuant to 28 U.S.C. § 1291.


Sentences are generally reviewed for an abuse of discretion, but where a defendant asserts a procedural error on appeal that was not raised below when prompted by the district court in accordance with United States v. Bostic, 371 F.3d 865, 872 (6th Cir.2004), our review is limited to determining whether the sentencing court committed plain error. United States v. Lanning, 633 F.3d 469, 473 (6th Cir.2011). The plain-error standard of review requires that the defendant show (1) error (2) that was obvious or clear, (3) that affected the defendant's...

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