U.S. v. Lindsey

• Decision Date: 20 February 2009
• Docket Number: No. 008-7728.,No. 08-7715.,08-7715.,008-7728.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Donnell LINDSEY, a/k/a Donnell, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lonnie Dewayne Robinson, a/k/a Black Lonnie, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

556 F.3d 238

UNITED STATES of America, Plaintiff-Appellee, v. Larry Donnell LINDSEY, a/k/a Donnell, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Lonnie Dewayne Robinson, a/k/a Black Lonnie, Defendant-Appellant.

No. 08-7715.

No. 008-7728.

United States Court of Appeals, Fourth Circuit.

Argued: December 2, 2008.

Decided: February 20, 2009.

ARGUED:

Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellants. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina; Cecilia Oseguera, Steven Slawinski, Charlotte, North Carolina, for Appellants. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILLIAMS, Chief Judge, and NIEMEYER and MOTZ, Circuit Judges.

No. 08-7715 affirmed; No. 08-7728 vacated and remanded by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge WILLIAMS and Judge MOTZ joined.

OPINION

NIEMEYER, Circuit Judge:

In light of Amendment 706 to the Sentencing Guidelines, which retroactively reduced the offense levels for crack cocaine offenses, Larry Donnell Lindsey and Lonnie DeWayne Robinson filed motions in the district court to reduce their sentences, relying on 18 U.S.C. § 3582(c)(2), which authorizes a district court to reduce a sentence where "a defendant ... has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." (Emphasis added). Both defendants' sentences were based on sentencing ranges determined under U.S.S.G. § 2D1.1, which Amendment 706 amended, and both defendants' sentences were reduced by the district court under U.S.S.G. § 5K1.1 for their substantial assistance to the government. But, even though Amendment 706 reduced these defendants' offense levels, it did not lower their sentencing ranges of 360 months' to life imprisonment. Yet, Lindsey and Robinson contend that because the district court departed downward nine offense levels under § 5K1.1, their sentencing ranges should be modified to correspond to an offense level first reduced two levels under Amendment 706 and then reduced by the nine levels for substantial assistance. The district court rejected this approach and denied the defendants' motions.

As to Lindsey, we affirm. Amendment 706, when applied to Lindsey in accordance with U.S.S.G. § 1B1.10(b)(1), does not lower his "sentencing range" or "applicable guideline range," as required by 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10(a)(2)(B). The district court's departure from the "applicable guideline range" to impose a lower sentence under U.S.S.G. § 5K1.1, based on Lindsey's substantial assistance to the government, has no legal effect on this analysis.

As to Robinson, we vacate and remand to a different district judge on the ground that the sentencing judge operated unwittingly under a conflict of interest that disqualified him under 28 U.S.C. § 455(b)(3).

I Larry Donnell Lindsey

Lindsey pleaded guilty, pursuant to a written plea agreement, to one count of conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In the plea agreement, Lindsey stipulated that he was responsible for in excess of 1.5 kilograms of crack cocaine.

The presentence report recommended a sentence within the Guidelines range of 360 months' to life imprisonment. The report began with a base offense level of 38 under U.S.S.G. § 2D1.1 for an offense involving 1.5 or more kilograms of cocaine base. The probation officer then recommended a two-level increase because a dangerous weapon was possessed, a four-level increase because Lindsey led the drug organization, and a three-level reduction for acceptance of responsibility, yielding a final offense level of 41. With Lindsey's criminal history category of IV, the resulting Guidelines range was 360 months' to life imprisonment.

At sentencing, after the district court adopted the presentence report, the government made a motion under U.S.S.G. § 5K1.1 for a downward departure based on Lindsey's substantial assistance to the government. The government stated that Lindsey "was debriefed [and] provided truthful information. He was the leader of the conspiracy and his cooperation, which occurred roughly halfway through the process, led to, I think, the conclusion of the conspiracy. Furthermore, he testified at trial some three to four weeks ago against one of his co-defendants." Based on this assistance, the government recommended a downward departure "to offense level 32, criminal history category IV, which is a range of 168 to 210 months," and it recommended a sentence at "the low end of that range." The district court granted the government's motion, noting that it

[found] that the defendant ha[d] rendered substantial assistance; that it justifie[d] a departure to level 32, category IV. The court would sentence at the low end of that range with the hope that the defendant will be rehabilitated when he comes out of prison.

The court then sentenced Lindsey to 168 months' imprisonment, entering judgment on April 23, 1999.

Three years later, in April 2002, the government filed a motion under Federal Rule of Criminal Procedure 35(b) to reduce further Lindsey's 168-month sentence based on his additional substantial assistance rendered after his sentence had been imposed. The district court granted the motion and reduced Lindsey's sentence to a term of 150 months' imprisonment.

In June 2008, because of Amendment 706 to the Sentencing Guidelines, which retroactively lowered the base offense levels applicable to crack cocaine offenses under U.S.S.G. § 2D 1.1 by two levels, Lindsey filed a motion under 18 U.S.C. § 3582(c)(2) for a further reduction of his sentence. In his motion, Lindsey maintained that after the sentencing court's departure under U.S.S.G. § 5K1.1 and its subsequent reduction of his sentence under Rule 35(b), his 150-month sentence was based on a sentencing range for offense level 32, not on the range for offense level 41 reflected in his pre-sentence report. Arguing that Amendment 706 lowered his sentencing range to the range that corresponds to offense level 30, Lindsey claimed that he was eligible for a revised sentencing range of 135 to 168 months' imprisonment. Specifically, he requested a revised sentence of 120 months' imprisonment, reflecting a reduction proportionate to the original sentence after the district court had granted the government's Rule 35 motion.

The probation officer submitted a supplemental presentence report providing that under Amendment 706, Lindsey's offense level was lowered from level 41 to level 39. With Lindsey's criminal history category of IV, his Guidelines range for imprisonment, after application of Amendment 706, remained 360 months' to life imprisonment. The probation officer concluded that "[t]here was no change in the guideline range, therefore, no reduction is recommended."

The district court denied Lindsey's § 3582(c)(2) motion, stating:

After giving defendant the benefit of Amendment 706's two-level reduction, his revised offense level (prior to any downward departures for substantial assistance) is 39 with a criminal history category IV, corresponding to a guideline range of 360 months to life imprisonment. Since this defendant's guideline range is not lowered by application of the amendment, he is not eligible for a sentence reduction.... The fact that this defendant was originally given a sentence below the applicable guideline range on account of the government's 5K1.1 and Rule 35 motions has no impact on this conclusion....

From the district court's order of August 22, 2008, denying Lindsey's § 3582(c)(2) motion, Lindsey now appeals.

Lonnie De Wayne Robinson

Robinson pleaded guilty, pursuant to a written plea agreement to one count of conspiracy to possess with intent to distribute crack cocaine near a protected location, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 860. In his plea agreement, Robinson stipulated that he was responsible for in excess of 1.5 kilograms of crack cocaine.

The presentence report recommended a Guidelines sentence in the range of 360 months' to life imprisonment. The report began with a base offense level of 40 under U.S.S.G. § § 2D 1.1 and 2D1.2 for an offense involving at least 1.5 kilograms of crack cocaine (for which § 2D1.1 assigns a base level of 38) where the violation occurred near a protected location (for which § 2D1.2 assigns a base level of 2). The probation officer recommended a two-level increase for possession of a dangerous weapon and a three-level reduction for acceptance of responsibility, yielding a final offense level of 39. The probation officer also found Robinson to be a career offender within the meaning of U.S.S.G. § 4B1.1 on account of his prior North Carolina state convictions, but the calculations under § 4B1.1 left his offense level at 39. With Robinson's offense level of 39 and criminal history category of VI, the resulting Guidelines range was 360 months' to life imprisonment.

At sentencing, the district court began by adopting the pre-sentence report, finding that it accurately calculated Robinson's Guidelines sentencing range. The government then made a motion under U.S.S.G. § 5K1.1 for a downward departure based on Robinson's substantial assistance to the government. The government stated:

Mr. Robinson was one of the earliest cooperators and the second person in this 12-person indictment to enter a plea.... [H]e provided significant information about the Greer Heights drug trade and about Jamaican Harry.... Significant information he provided was actually used to indict Jamaican Harry. The Government contemplates a possible Rule 35 motion in the future if he...