United States v. Haggerty

• Decision Date: 24 September 2013
• Docket Number: No. 13–1093.,13–1093.
• Citation: 731 F.3d 1094
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tyre S. HAGGERTY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

731 F.3d 1094

UNITED STATES of America, Plaintiff–Appellee,

v.Tyre S. HAGGERTY, Defendant–Appellant.

No. 13–1093.

United States Court of Appeals, Tenth Circuit.

Sept. 24, 2013.

John F. Walsh, United States Attorney, and J. Bishop Grewell, Assistant United States Attorney, Denver, CO, for Plaintiff–Appellee.

Robert G. Levitt, Denver, CO, for Defendant–Appellant.

Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Appellant Tyre S. Haggerty pled guilty to one count of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii), and one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). He now appeals his seventy-two-month sentence, claiming it is procedurally unreasonable because the district court failed to consider the criteria in United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) § 3E1.1(b) for a one-level reduction for acceptance of responsibility. The government supports the appeal on similar grounds. Both parties seek reversal and remand of the judgment, with directions for the district court to grant or deny the § 3E1.1(b) reduction based on its consideration of § 3E1.1(b) and its commentary. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and reverse and remand to the district court for resentencing.¹

I. Factual and Procedural Background

Mr. Haggerty's tumultuous criminal history as a teenager culminated in a felony drug conviction at the age of nineteen and a felony conviction for being a felon in possession of a firearm at the age of twenty-one, for which he spent most of 2003 to 2008 incarcerated.

On May 16, 2012, a fight erupted outside Mr. Haggerty's home, in which eight individuals got out of their vehicles and started an altercation with his relatives, including a young female and her newborn baby. In response to her screams, Mr. Haggerty ran to his car, grabbed a pistol, and waved it around. As the instigators drove away, Mr. Haggerty gave chase. After law enforcement arrived on the scene and contacted Mr. Haggerty, they searched his vehicle, finding 15.3 grams of methamphetamine he admitted to possessing but which he claimed he picked up off the ground after one of the individuals he chased dropped it and that he took it for his own personal use, believing it was cocaine. Later, Mr. Haggerty again admitted to authorities he possessed the methamphetamine and that the amount he possessed constituted a distribution amount. He also admitted to purchasing and possessing the pistol involved in the incident.

On July 9, 2012, a two-count indictment issued, charging Mr. Haggerty with possession with intent to distribute a controlled substance and possession of a firearm by a previously convicted felon. On November 27, 2012, pursuant to a plea agreement, Mr. Haggerty pled guilty to both counts and admitted possessing the methamphetamine with the intent to distribute it. In exchange for his guilty plea, the government agreed to move for a one-level reduction under U.S.S.G. § 3E1.1(b) in calculating his sentence.

Following Mr. Haggerty's guilty plea, a probation officer prepared a presentence report using the 2012 Guidelines. In calculating his sentence, the probation officer noted the government's stipulation that it would move for a one-level reduction under § 3E1.1(b) and, accordingly, applied the two-level and one-level offense reductions under U.S.S.G. § 3E1.1(a) and (b) for his acceptance of responsibility, which resulted in a total offense level of 24. Mr. Haggerty's total offense level of 24, together with his criminal history category of III, resulted in a Guidelines range of sixty-three to seventy-eight months imprisonment. As promised in the plea agreement, the government filed a motion for a one-level decrease in the offense level under § 3E1.1(b) on grounds Mr. Haggerty's timely notice and agreement to plead guilty allowed it to avoid preparing for trial and permitted both it and the court to allocate resources more efficiently.

At the sentencing hearing, the district court informed the parties it would apply a two-level reduction for acceptance of responsibility under § 3E1.1(a) but denied the motion for a one-level reduction under U.S.S.G. § 3E1.1(b). As grounds for denying the reduction, it explained:

I believe that what the Sentencing Commission had in mind for acceptance of responsibility was a true and sincere acceptance of responsibility, not simply the fact that a defendant is willing to plead guilty.

... [T]he motion to grant the additional one-level decrease is based entirely on the fact that the defendant agreed to plead guilty, permitting the Government to avoid preparing for trial and permitting [it] and the court to allocate resources more efficiently.

I will never agree that avoidance of trial is a more efficient or appropriate allocation of resources. On the contrary, I think trials are the way that our system wants us to resolve these cases and that they are a good thing, not a bad thing. I do not think that saving the Government the task of preparing for trial is a benefit that's entitled to any weight, nor do I think that saving the Court the trouble of presiding over a trial is a positive that is entitled to any credit at all.

It also stated its belief Mr. Haggerty did not take responsibility because he told the officers he picked up the methamphetamine off the ground, thereby pointing the finger of blame at others. Mr. Haggerty's counsel made a contemporaneous objection which the district court denied. After the district court granted a one-level reduction pursuant to U.S.S.G. § 2K2.1, it calculated the Guidelines range at sixty-three to seventy-eight months and sentenced Mr. Haggerty to seventy-two months imprisonment.

II. Discussion

Mr. Haggerty now appeals his sentence, claiming it is procedurally unreasonable because the district court failed to consider the criteria under U.S.S.G. § 3E1.1(b) for a one-level reduction in the calculation of his total offense level. In making this argument, he contends the district court gave reasons for the denial which are factually incorrect and legally inconsistent with Guidelines § 3E1.1(b) and its commentary, including its determination Mr. Haggerty's plea lacked sufficient contrition and its own personal belief that guilty pleas should not result in lesser sentences. He points out a one-level reduction would result in a total offense level of 23 and a Guidelines range of fifty-seven to seventy-one months incarceration, which is below the seventy-two-month sentence he received. He also submits his sentence is substantively unreasonable due to this procedural error.

The government supports the defendant's appeal on similar grounds, agreeing the district court relied on impermissible reasons to deny the one-level reduction. Both parties seek reversal and remand of the judgment, with directions for the district court to grant or deny the § 3E1.1(b) reduction based on a determination as to whether Mr. Haggerty's plea was sufficiently timely to save the court and the government resources. In asking for reversal and remand, the government acknowledges a split exists in circuit courts over whether a district court must grant a one-level reduction if certain conditions in Guidelines § 3E1.1(b) are met. However, it points out that even in circuits which have held the decision is discretionary, the district court's discretion is limited to deciding if the timeliness of the plea allows the court and government to save resources.

We review a sentence for reasonableness, giving deference to the district court under an abuse of discretion standard. See United States v. Smart, 518 F.3d 800, 802–03, 805 (10th Cir.2008). “Our appellate review for reasonableness includes both a procedural component ... as well as a substantive component, which relates to the length of the resulting sentence.” Id. at 803. “Procedural reasonableness addresses whether the district court incorrectly calculated ... the Guidelines sentence, treated the Guidelines as mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately explain the sentence.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir.2008).

The issue in this appeal is whether denial of the one-level reduction under § 3E1.1(b), which affected calculation of the Guidelines range, resulted in a procedurally unreasonable sentence. Subsection 3E1.1(a) allows a two-level decrease if “the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). In turn, § 3E1.1(b), on which both parties rely, states:

If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

U.S.S.G. § 3E1.1(b) (emphasis added). As the government points out, this subsection outlines three conditions for granting a one-level reduction, which it claims Mr. Haggerty met, including: (1) he qualified for acceptance of responsibility under § 3E1.1(a) as determined by the district court; (2) he had an offense level, before the acceptance of responsibility reduction, of 16 or higher; and (3) the government filed a motion certifying he assisted authorities by timely notifying it of his intention to plead guilty. With respect to the issue of the timeliness of his plea, Application Note 6 to § 3E1.1 states:

The timeliness of the defendant's acceptance of...