United States v. Gordon

• Decision Date: 29 September 2016
• Docket Number: No. 15-41510,15-41510
• Citation: 838 F.3d 597
• Parties: United States of America, Plaintiff–Appellee v. Melvin Stanford Gordon, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

838 F.3d 597

United States of America, Plaintiff–Appellee

v.Melvin Stanford Gordon, Defendant–Appellant

No. 15-41510

United States Court of Appeals, Fifth Circuit.

FILED September 29, 2016

Andrew R. Gould, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Scott Andrew Martin, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant–Appellant.

Before STEWART, Chief Judge, and CLEMENT and HAYNES, Circuit Judges.

CARL E. STEWART

, Chief Judge:

Defendant–Appellant Melvin Stanford Gordon pleaded guilty as charged to two counts of transportation of an undocumented alien and one count of possession with intent to distribute less than 50 kilograms (kgs) of marijuana. The district court sentenced Gordon to 41 months' imprisonment followed by a 3-year term of supervised release which included a special condition that he participate in a mental health program as deemed necessary and approved by the probation officer. For the following reasons we AFFIRM the district court's judgment imposing 41 months' imprisonment followed by a 3-year term of supervised release. We VACATE the special condition that Gordon participate in a mental health program and REMAND for further proceedings.

I. Facts & Procedural Background

According to the Presentence Investigation Report (“PSR”), on December 15, 2014, Gordon was driving a Toyota Tercel when he was stopped at a U.S. Border Patrol checkpoint located near Falfurrias, Texas. A service canine alerted to the trunk of Gordon's vehicle and he consented to a search of the trunk. When the trunk was opened, agents discovered two subjects inside, a minor male¹ and an adult female, who were Mexican citizens illegally present in the United States. The aliens, who were siblings, were covered with clothes and duffle bags, and their faces were red and sweaty. The female required assistance to get out of the trunk because her legs were numb from having ridden in the confined space for so long. Both aliens stated that they were thirsty and agents observed that there was no way for them to exit the trunk independently; it could only be opened from the outside. The service canine then alerted to the backseat of Gordon's vehicle where agents removed two rear quarter panels and discovered four wrapped bundles totaling 1.13 kgs of marijuana. Gordon was arrested and declined to provide a statement or answer any questions without an attorney present.

In January 2015, a federal grand jury returned a three-count indictment against Gordon charging him with two counts of transportation of an undocumented alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),(B)(ii)

and one count of possession with intent to distribute less than 50 kgs of marijuana in violation of 21 U.S.C. § 841(a)(1),(b)(1)(D). In March 2015, without a plea agreement, Gordon pleaded guilty to all three counts in the indictment.

In calculating Gordon's recommended sentence, the PSR applied the Sentencing Guidelines' grouping rules, wherein counts involving substantially the same harm are combined into a single group. U.S.S.G. §§ 3D1.2(d)

, 1B1.3. Under these rules, the total combined adjusted offense level was determined to be 18.²

Next, the PSR recommended application of the “career offender” enhancement pursuant to U.S.S.G. § 4B1.1

, because Gordon was at least 18 years old when convicted of the instant felony controlled substance offense and he had at least two prior felony convictions for controlled substance offenses. The offense level for a career offender is 17, but because Gordon's combined adjusted offense level was greater than 17, i.e. , 18, the higher offense level was used. Gordon's offense level was then reduced by 3 for acceptance of responsibility. U.S.S.G. § 3E1.1(a),(b). Thus, Gordon's total recommended offense level was 15.

The PSR determined that Gordon's criminal history score was 9, which established a criminal history category of IV. However, in light of Gordon's designation as a “career offender” under U.S.S.G. § 4B1.1(a)

, his criminal history category was increased to VI. U.S.S.G. § 4B1.1(b).

With a total offense level of 15 and a criminal history category of VI, the recommended Guidelines range was 41–51 months' imprisonment. U.S.S.G. Sentencing Table, Ch. 5, pt. A. Paragraph 57 of the PSR states that “[t]he defendant reported no history of mental or emotional health related problems and this investigation has revealed no information to indicate otherwise.”³

Gordon's sentencing hearing was held in October 2015. During the hearing Gordon objected, arguing that because the PSR applied the higher adjusted offense level of 18, rather than the career offender offense level of 17 under Section 4B1.1(b)

, he should not have been assigned the career offender criminal history category of VI under that subsection. The district court overruled Gordon's objection and accepted the PSR's recommended offense level of 15, criminal history category of VI, and sentencing range of 41–51 months' imprisonment. The district court sentenced Gordon to 41 months' imprisonment for each of the three counts, to run concurrently. The district court then imposed a 3-year term of supervised release. With respect to the supervised release term, the district court specified as follows:

Based on the information in the report, I'm going to order drug and/or alcohol treatment as deemed necessary and approved by the probation officer, as well as require you to participate in anger management counseling as deemed necessary and approved by the probation officer, as well as require you to participate in a mental health program as deemed necessary and approved by the probation officer. The Court will not impose a fine. The Court has considered the advisory guideline sentencing factors set forth in 3553. The Court finds that the sentence imposed is sufficient but not greater than necessary to impose an appropriate sentence. The Court finds the sentence promotes respect for the law and provides just punishment.

Gordon did not object at the sentencing hearing to the mental health program special condition and in November 2015, timely filed this appeal.

II. Discussion

A. Application of the Sentencing Guidelines

Gordon first argues on appeal that the district court erred in determining that he qualified as a career offender with a criminal history category designation of VI under subsection (b) of Section 4B1.1

when it did not also apply the offense level from the table in that subsection.

We review a sentencing decision for reasonableness. Gall v. United States , 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)

. We first “determine[ ] whether the district court committed any significant procedural error.” United States v. Groce , 784 F.3d 291, 294 (5th Cir. 2015). In this step, the district court's interpretation or application of the Sentencing Guidelines is reviewed de novo and its factual findings are reviewed for clear error. Id . (citation omitted). Next, “[i]f there is no procedural error or the error is harmless, this court then reviews the substantive reasonableness of the sentence imposed for an abuse of discretion.” Id .

Section 4B1.1 of the Guidelines provides in part:

(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

(b) Except as provided in subsection (c), if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply. A career offender's criminal history category in every case under this subsection shall be Category VI.

Offense Statutory Maximum Offense Level

...

(6) 5 years or more, but less than 10 years 17

...

(c) If the defendant is convicted of 18 U.S.C. § 924(c)

or § 929(a), and the defendant is determined to be a career offender under subsection (a), the applicable guideline range shall be determined as follows....

U.S.S.G. § 4B1.1(a)–(c)

.

The issue of whether a case “arises under” subsection (b) of Section 4B1.1 of the career offender guideline when the district court does not also apply the offense level from the table in that subsection is res nova in this circuit. The Eleventh Circuit was the first to expressly address the issue in United States v. Marseille , 377 F.3d 1249 (11th Cir. 2004)

. In that case, the defendant, like Gordon, argued that “his case does not, in the final analysis, come under subsection (b) because the district court did not apply the offense level table in that subsection to determine [the defendant's] offense level.” Marseille , 377 F.3d at 1256. There, rather than applying the offense level from the table under subsection (b), the district court applied the offense level under the armed criminal career guideline because it was greater. Id . In rejecting the defendant's argument, the Eleventh Circuit explained:

[The defendant] mistakenly concludes from the fact that § 4B1.1(b)

did not produce the offense level the district court ultimately applied, that the career offender guideline was not applicable at all. In fact, the district court applied both the career offender and armed career criminal guidelines, but followed the direction of both guidelines by holding that a greater offense level overrides a lesser offense level.

...

We hold that a case arises under subsection (b) of the career offender guideline in every case in which the defendant qualifies as a career offender under subsection (a). The sole exception to this rule is the one...