U.S. v. Presley

Decision Date24 November 2008
Docket NumberNo. 07-1147.,07-1147.
Citation547 F.3d 625
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Keith PRESLEY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Jennifer J. Sinclair, Assistant United States Attorney, Detroit, Michigan, for Appellant. James W. Amberg, Amberg & Amberg, Keego Harbor, Michigan, for Appellee. ON BRIEF: Jennifer J. Sinclair, Assistant United States Attorney, Detroit, Michigan, for Appellant. James W. Amberg, Amberg & Amberg, Keego Harbor, Michigan, for Appellee.

Before: MOORE, CLAY, and SUTTON, Circuit Judges.



Plaintiff-Appellant the United States of America appeals the district court's resentencing of Defendant-Appellee Keith Presley to 120 months of incarceration, a downward variance from his Guidelines range of 360 months to life. Presley and his co-defendant, Kevin Davis, were found guilty of various counts arising from a drug and money-laundering conspiracy, and both were sentenced to 360 months of incarceration. In United States v. Davis, 430 F.3d 345 (6th Cir.2005), we considered Presley's and Davis's appeals of their convictions and sentences. We affirmed Presley's conviction, but because certain evidence against Davis was obtained in violation of the Fourth Amendment, we reversed the district court's denial of Davis's motion to suppress and remanded for a determination of whether Davis's conviction should stand. We vacated both Presley's and Davis's sentences and remanded for resentencing in light of Booker. On remand, the district court made a downward variance based on the disparity between Presley's Guidelines sentence and the 96-month sentence that Davis received pursuant to an agreement with the government. In this appeal, the government argues that the district court erred in reducing Presley's sentence based on the sentencing disparity, because Presley and Davis were not similarly situated on remand. Because Presley's sentence is both procedurally and substantively reasonable, we AFFIRM.


The facts underlying Presley's convictions are set forth in our previous opinion. Davis, 430 F.3d at 349-50, 358-60. We summarized the procedural background as follows:

On August 9, 2001, Presley, Davis, and several other codefendants were indicted in the United States District Court for the Eastern District of Michigan. Both Davis and Presley were charged with conspiracy to distribute and possession with the intent to distribute more than five kilograms of cocaine ("Count One"), and conspiracy to launder monetary instruments ("Count Twelve"). Davis was also charged with money laundering ("Counts Thirteen and Fourteen") and aiding and abetting another codefendant in money laundering ("Count Fifteen"). Presley was additionally charged with the use of a communication facility in committing a drug offense ("Count Two"). The indictment alleged that the defendants were involved in a large-scale drug trafficking operation in which both defendants bought and sold large quantities of cocaine. The indictment further alleged that as part of this operation, Davis would take proceeds from drug sales and purchase or lease real estate and vehicles in the names of nominee owners in order "to conceal and disguise the true nature, location, source, ownership, and control of the proceeds." [Joint Appendix ("J.A.") at 73 (Superseding Indictment at 6)].

A jury trial was held, at the conclusion of which the jury found Presley guilty on Counts One, Two, and Twelve (the charges on which he was indicted) and found Davis guilty as to Counts One, Twelve, and Fifteen. Davis was sentenced to concurrent terms of 240 months' imprisonment as to Counts One and Twelve and a consecutive term of 120 months' imprisonment on Count Fifteen, for a total sentence of 360 months' imprisonment. Presley received concurrent sentences of imprisonment for 360 months, 48 months, and 240 months on each count respectively, for a total of 360 months' imprisonment.

Davis, 430 F.3d at 350-51. Both Presley and Davis were found responsible for over 150 kilograms of cocaine and were given a four-level enhancement for being a leader or organizer of the conspiracy. "Each scored the same under the guidelines as to Offense Level," but "Presley, because of prior convictions, ... scored Criminal History II, while Davis scored Criminal History

I." United States v. Presley, No. 00-80756, 2006 WL 3950257, at *1 (E.D.Mich. Dec.19, 2006).

Both Presley and Davis appealed their convictions and sentences. We affirmed Presley's conviction. Because we concluded, however, that Davis's vehicle had been searched in violation of the Fourth Amendment, we reversed the district court's denial of Davis's motion to suppress the evidence obtained during the vehicle search and remanded Davis's "case to the district court for a determination as to whether Davis's conviction still stands," directing the district court to consider whether evidence seized during subsequent searches was fruit of the poisonous tree or instead fell under an exception to the exclusionary rule. Davis, 430 F.3d at 358. Both Presley's and Davis's sentences were vacated and the cases remanded to the district court for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

On remand, Davis filed a motion for a new trial, arguing in part that evidence seized from the subsequent searches also should be suppressed. Facing the possibility of a retrial, the government and Davis reached a sentencing agreement in which Davis agreed to withdraw his pending motion for a new trial and forfeit over $1.2 million, and the government agreed to vacate the judgment on all counts except Count Twelve, the money-laundering conspiracy. The parties agreed to a sentencing range of 87 to 112 months on this remaining charge. On October 25, 2006, the district court resentenced Davis to 96 months in prison, three years of supervised release, and forfeiture of any interest he had in over $2 million seized by the government.

As to Presley, the government submitted a Booker resentencing memorandum on September 28, 2006, which discussed the drug quantity and the leadership-role enhancement, concluded that no applicable factors under 18 U.S.C. § 3553(a) took Presley's case out of the "heartland" of drug conspiracy cases, and requested that Presley be resentenced to 360 months of imprisonment. In response, Presley pointed out several § 3553(a) factors favorable to him, including his good behavior and efforts to better himself in prison and the disparity between the government's recommended sentence and that given to Davis and another codefendant, and asked for the mandatory-minimum sentence of 120 months. An initial sentencing hearing was cut short when the district court, expressing concern over the disparity between the treatment of Presley and that of Davis, instructed the government to file a supplemental memorandum on this issue. The government's supplemental memorandum identified seven factors that distinguished Presley's case from Davis's such that the sentencing disparity should not be considered in Presley's resentencing.

At a second sentencing hearing held the next month, the district court disagreed with the government and sentenced Presley to 120 months of incarceration. In a sentencing memorandum, the district court addressed each of the government's seven distinctions between Presley and Davis, finding each either non-existent or not so great as to prohibit consideration of Davis's sentence. The district court then discussed the § 3553(a) factors and the considerations required of the district court. The district court rejected most of Presley's arguments, finding ample evidence in the record to support the amounts of drugs attributed and the leadership enhancement, but did note Presley's efforts to rehabilitate himself in prison. The primary focus of the memorandum, however, was the need to address the disparity between the 360-month Guideline sentence and Davis's 96-month sentence: "The most important consideration, however, in regard to the sentence imposed on Presley is, however, the need to avoid an unwarranted disparity between his sentence and that imposed on Davis with the agreement of the government." Presley, 2006 WL 3950257, at *7. The district court went on to discuss cases finding that codefendant sentencing disparity, rather than national disparity, is a permissible factor to consider under 18 U.S.C. § 3553(a)(6). The district court found that these considerations warranted an overall sentence of 120 months, the mandatory-minimum sentence:

As discussed above, Presley and Davis were both involved in a large scale cocaine conspiracy involving hundreds of kilograms of cocaine and millions of dollars in cash. Both were tried and both were convicted by the same jury. By happenstance, a small portion of the evidence at their trial was found to be excludable as to Davis but not as to Presley. Accordingly, the Court on remand was to review the overall evidentiary basis for the conviction of Davis to see if that conviction could stand without the excluded evidence. The government had an obligation to see if that case could be made. For reasons known only to the government, it chose not to make the effort and entered into a compromise with Davis which resulted in a significantly lower sentence for him; a "windfall" in the words of the government.

As the Court of Appeals observed in [United States v.] Williams, [894 F.2d 208 (6th Cir.1990)], it would violate the spirit of the guidelines and be particularly inequitable for Davis to receive a 96 month sentence and Presley a 360 month sentence for the same conduct. Booker gives the Court discretion to impose a reasonable sentence sufficient, but no greater than necessary, to comply with the purpose set forth in § 3553(a)(2).

The Court is exercising that discretion in...

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