United States v. Massey

Decision Date16 December 2011
Docket NumberNo. 10–1335.,10–1335.
Citation663 F.3d 852
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Randy Louis MASSEY, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ON BRIEF: Gary W. Lanker, Law Office of Gary W. Lanker, Memphis, Tennessee, for Appellant. Mark V. Courtade, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.Before: MARTIN and GRIFFIN, Circuit Judges; ANDERSON, District Judge.*

OPINION

S. THOMAS ANDERSON, District Judge.

Randy Louis Massey entered a plea of guilty to one count of conspiracy to manufacture, possess and distribute 500 grams or more of methamphetamine. He was sentenced to a term of imprisonment of 324 months. Massey argues on appeal that the sentence was procedurally and substantively unreasonable. Because the district court's sentence was reasonable, we AFFIRM the judgment of the district court.

I. BACKGROUND
A. Factual background

On March 1, 2009, at 1:30 A.M., the fire departments of Comstock and Kalamazoo Township, Michigan responded to a fire in the basement of a residence on Steger Avenue in Kalamazoo. The occupants of the home were the homeowner Debra Homan (“Homan”) and her boyfriend. Upon extinguishing the fire, the firefighters discovered a meth lab in the basement. According to Homan, Randy Louis Massey had offered her $100 for the use of her basement, which she assumed was related to meth production. Around midnight on February 28, 2009, Massey arrived at Homan's residence with Matthew Jones (“Jones”), and the two men immediately went to the basement. Having earlier observed Jones cutting up batteries in the basement, Homan later heard a loud yell and discovered a large fire in her basement. Jones's pants and the back of his arms were on fire. When Homan called 911, Massey and Jones fled the residence. Massey and Jones were picked up by another accomplice, Phillip Parrish (“Parrish”), and taken to separate hotels in the Kalamazoo area.

Massey rejoined Jones, Parrish and another accomplice, Ashley Branch (“Branch”), later on March 1, 2009, at the Days Inn in Battle Creek, Michigan, to continue “cooking” meth. Massey was smoking a cigarette during the “filtering” process, which caused an explosion and fire in the motel room. Massey, Parrish and Branch caught fire and fled the motel with Branch sustaining severe burns. At approximately 11:20 P.M., firefighters responded to the fire in Room 215 of the Days Inn.

B. Procedural Background

On April 15, 2009, Massey was indicted on three counts relating to the manufacture or attempted manufacture of methamphetamine. Count One charged Massey with conspiring with Homan, Jones, Parrish, and Branch to manufacture, possess and distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(viii). Counts Two and Three charged Massey and the others with attempting to manufacture 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B)(viii). Massey entered into a plea agreement, and on October 26, 2009, the district court accepted Massey's guilty plea as to Count One. As part of the agreement, the government stated that it would “decide whether to file a motion for departure pursuant to U.S. S.G. § 5K1.1 and/or Rule 35(b) of the Federal Rules of Criminal Procedure.”

In advance of Massey's sentencing, the probation officer prepared a presentence report, calculating Massey's total offense level as 36 and his criminal history category as VI. In arriving at Massey's criminal history category, the presentence report added two “recency points” pursuant to U.S.S.G. § 4A1.1(e), due to the fact that Massey's offense occurred less than two years after his release from confinement on a counted sentence. The applicable Guidelines range was 324 to 405 months' imprisonment. The presentence report noted the plea agreement's provision that the government would “make a good faith evaluation of Mr. Massey's cooperation in determining whether to file a motion for reduction of sentence,” whether as a 5K1.1 motion or a Rule 35 motion. Before the sentencing hearing, Massey filed a sentencing memorandum with the district court, requesting that the court consider the substantial assistance he had provided the government. Massey's memorandum stated that he expected the government to file a 5K1.1 motion for a departure from the guidelines and added that he had cooperated “with the hope that the government will move for a release of the mandatory minimum and sentence him to no more than 15 years in prison.”

On March 1, 2010, the district court conducted Massey's sentencing hearing. During its allocution, the government reported to the court that while Massey had cooperated, the government was not filing a 5K1.1 motion presently but anticipated filing a Rule 35 motion “at some time in the future.” (Sentencing Hr'g Tr. 5:18–6:4, Mar. 1, 2010) At the outset of his allocution, counsel for Massey added that since the filing of the sentencing memorandum, Massey had testified before the grand jury. Counsel went on to explain that [t]here is [sic] some timing issues there, and I don't believe that the committee met in sufficient time to allow [the Assistant United States Attorney] to file a motion for substantial assistance, but he does anticipate filing a Rule 35.” (Sentencing Hr'g Tr. 6:7–13) Nevertheless, counsel for Massey requested that the district court “consider departing from the guidelines, or actually using the advisory guidelines only as a guide” in recognition of the fact that Massey had “tried to make amends by his cooperation.” (Sentencing Hr'g Tr. 8:9–12)

During the hearing Massey himself also had the opportunity to address the district court. In the course of his remarks, Massey affirmed that he had worked with the government and that he intended to continue providing assistance. (Sentencing Hr'g Tr. 11:14–17) When the district court asked Massey what led him to cooperate with the government (Sentencing Hr'g Tr. 19:17–18), Massey responded that he testified before the grand jury because he made a commitment to be released from his incarceration by the time his one-year old son completed high school. (Sentencing Hr'g Tr. 22:9–16) To that end Massey requested that the district court impose a sentence of fifteen years. (Sentencing Hr'g Tr. 23:1–6) The court clarified to Massey that the mandatory minimum sentence for his offense was twenty years and that the court could not depart below the minimum without a motion from the government. (Sentencing Hr'g Tr. 23:17–24:1)

The parties having agreed to the presentence report's Guidelines calculation, the district court sentenced Massey to 324 months' confinement, ten years of supervised release, restitution in the total amount of $51,640.37, and a special assessment of $100. The district court set out the reasons for the sentence it had decided to impose, stating that it “fully recognized” its discretion in arriving at an appropriate sentence. (Sentencing Hr'g Tr. 25:5–11) The court explained that it had “considered all of the arguments in support of the defendant's request for a lower sentence” and “thoroughly read the defendant's sentencing memorandum, its attachments and the request for a variance from the advisory guideline range, which is included in the motion.” (Sentencing Hr'g Tr. 25:12–26:3) During its analysis, the district court called attention to Massey's cooperation with the government. The court then stated, [t]here is no 5K motion before me today, so therefore, as far as a departure from the sentencing guidelines, I do not have that authority from the government” and added that it could not consider the possibility of a future Rule 35 motion in arriving at the sentence. (Sentencing Hr'g Tr. 31:5–9) After reviewing “the other aspects of the defendant's motion for a variance,” the court denied the request. (Sentencing Hr'g Tr. 31:21–23) Just before pronouncing its sentence, the district court stated, “I look forward if there is a Rule 35 motion, I look forward to receiving it. And certainly at that point, I can't give it any consideration now, but certainly at that point, the Court will give every consideration to Mr. Massey's cooperation with the government.” (Sentencing Hr'g Tr. 32:6–12) Massey now appeals the judgment, arguing that the district court's sentence was procedurally and substantively unreasonable.

II. ANALYSIS
A. Standard of Review

As a general matter, we review sentences for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Blue, 557 F.3d 682, 684 (6th Cir.2009). The trial court abuses its discretion if it imposes a sentence that is procedurally or substantively unreasonable. United States v. Rosenbaum, 585 F.3d 259, 266 (6th Cir.2009) (citing Gall, 128 S.Ct. at 597). With respect to the procedural reasonableness of the sentence, the court is limited to plain error review if the trial court invited the defendant's objections to the sentence pursuant to United States v. Bostic, 371 F.3d 865, 871–72 (6th Cir.2004), and defendant failed to raise the issue at that time. United States v. Lanning, 633 F.3d 469, 473 (6th Cir.2011) (quoting United States v. Penson, 526 F.3d 331, 337 (6th Cir.2008)). Examples of procedural errors include the district court's “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines range as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Blue, 557 F.3d at 684 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Under the plain error standard of review, the defendant must show (1) there is error; (2) the error was “clear or obvious rather than subject to reasonable dispute”; (3) it affected the defendant's substantial rights, which in the...

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