NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0194n.06
No. 08-2524
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Mar 30, 2011
UNITED STATES OF AMERICA, ) LEONARD GREEN, Clerk
)
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Western
LINDELL BROWN, ) District of Michigan
)
Defendant-Appellant. )
Before: BOGGS, SUHRHEINRICH, and STRANCH, Circuit Judges.
BOGGS, Circuit Judge.
Defendant Lindell Brown appeals his sentence for conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841. He
argues that the district court erred by assessing a leadership enhancement, by improperly considering
whether the government would make a motion under Federal Rule of Criminal Procedure 35(b) after
sentencing, and by not reducing his sentence to account for time served on a state sentence. Finding
these arguments to be without merit, we affirm the district court’s sentence.
I
Brown was involved in a large cocaine distribution ring called Ahh Dee Ahh (ADA),
centered in Lansing, Michigan. ADA’s mastermind was Jamokenteyatte Hampton, but Brown was
a major cocaine supplier. The cocaine came from California, and found its way into the Michigan-
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United States v. Brown
based drug ring through a number of people. On occasion, Brown sold directly to Hampton. On
other occasions, Brown would sell the cocaine to co-conspirator Felicia Blake, who would then resell
it to Hampton. At other times, he supplied small amounts to co-conspirator Damon Bean. Bean’s
primary source, however, was Blake (whose source, in turn, was Brown). Bean told officers that
Blake supplied him with over 200 kilograms of cocaine in a period of roughly two years. During
some of these transactions, he would pay Blake but pick up the cocaine from Brown.
Brown and Blake had a close relationship. During an interview following her arrest, Blake
said that Brown first recruited her for cocaine sales in 1991. Thereafter, Brown began bringing
moderate amounts of cocaine (1 to 2 kilograms) from Los Angeles to Detroit, but he was quickly
arrested. A few months after his release in 2001, he and Blake began planning to transport much
larger quantities during the holidays. Blake had a number of friends with their own customers, but
Brown worked with these women insofar as he transported and guarded the drugs. He also often
turned over the cocaine to customers after the women had been paid. He also rented Blake’s house
for storing the drugs, and changed all the locks so that only he and his California supplier had access.
The law soon caught up with Brown. On June 12, 2005, he was stopped for speeding in
Detroit. During the stop, officers observed a quantity of United States currency in a plastic bag next
to a duffel bag. Upon examination, the duffel bag contained more than 6 kilograms of cocaine. He
was convicted and sentenced in state court for the cocaine found in his possession at the time of his
arrest. On February 14, 2008, a superseding indictment was filed in federal court, which added
Brown as a defendant to the ADA prosecution. On June 4, 2008, Brown pled guilty to the charges
in the indictment, and the district court ordered a presentence report (PSR). The PSR calculated
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Brown’s base offense level as 38, and added four levels, pursuant to U.S.S.G. § 3B1.1(a), because
he had a leadership role. His adjusted offense level, therefore, was 42. The PSR deducted three
levels for acceptance of responsibility, leading to a total offense level of 39. His criminal history
category was calculated as III, which would lead to a Guidelines sentence of 324-405 months.
Luckily for Brown, he received a number of generous departures. The government filed a
motion under U.S.S.G. § 5K1.1, recommending a departure of 3-4 levels, and the court departed 4
levels. The district court also reduced Brown’s criminal history category from III to II. Brown
objected to the leadership enhancement under U.S.S.G. § 3B1.1(a), claiming he was never a leader.
The government conceded that he was not as much of a leader as Hampton, and agreed that he
should only receive an enhancement of 3 levels, as opposed to 4. The district court was reluctant
on this point, saying: “Okay. I find it’s at least a three-point, probably a four, but I’ll give Mr.
Brown the benefit of the doubt . . . a three-point leadership, clearly.” With these changes, Brown’s
total offense level was 34 with a criminal history category of II, giving him a Guidelines range of
168-210 months.
The court sentenced Brown to a within-Guidelines term of 204 months in prison, to run
concurrently with his state sentence on a related state drug conviction. The court, however, declined
to adjust the sentence downward to account for time served on the related state sentence pursuant
to U.S.S.G. § 5G1.3(b). Brown timely filed a motion to correct his sentence, reiterating the
argument that his sentence should be adjusted for time served in state custody. The court again
declined, noting that giving credit for time served while awaiting sentence was within the province
of the Bureau of Prisons. Brown filed this timely appeal.
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II
1. Leadership Enhancement
In this circuit, the standard of review governing the imposition of a U.S.S.G. § 3B1.1
enhancement remains unclear. United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009). We will
normally review a district court’s legal conclusions de novo, and its factual determinations for clear
error. In this case, there is no dispute as to the facts. However, the Supreme Court has held under
similar circumstances that a legal decision with regard to an application of the Sentencing Guidelines
was “fact-bound,” and therefore entitled to “deferential” review. Buford v. United States, 532 U.S.
59, 66 (2001). Many of our decisions analyzing § 3B1.1 have cited Buford, but failed to articulate
its precise impact. See, e.g., United States v. Lalonde, 509 F.3d 750, 764 (6th Cir. 2007). Others,
however, have stated that clear error is the correct standard. See, e.g., United States v. Jeross, 521
F.3d 562, 579 (6th Cir. 2008). We need not decide the issue because even under a de novo standard,
the managerial enhancement was proper.
The only controversy on this point is whether Brown managed another person, or if he was
merely managing drugs and selling them to his co-conspirators. Our precedent makes clear that a
defendant cannot be assessed a managerial role enhancement merely for selling drugs to others. See
United States v. Swanberg, 370 F.3d 622, 629 (6th Cir. 2004) (“[T]he record at most demonstrates
only that [the defendant] sold drugs to multiple individuals. He had no control over what they did
with the drugs after the purchases. This does not meet the degree of control required by [our case
law].”). Rather, in assessing whether a defendant acts as a manager, we have looked to factors such
as:
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United States v. Brown
the exercise of decision-making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of participation in planning or
organizing the offense, the nature and scope of the illegal activity, and the degree of
control and authority exercised over others.
Jeross, 521 F.3d at 579 (using these factors to assess a three-level managerial role enhancement
under § 3B1.1(b)).1 We have also made clear that control over other participants need not be
extensive. In Jeross, for example, we upheld the imposition of a 3-level enhancement where a
defendant’s house was used as the drug distribution base, and where she repackaged and distributed
the drugs as well as collected the profits to give to someone higher up. Id. at 580.
In this case, the district court did not commit reversible error in imposing the three-level
sentence enhancement. The record shows that Brown exercised a great deal of authority within the
conspiracy—he determined when and how the drugs would be transported from California to
Michigan, and claimed a large share of the fruits of the crime. Critically, Brown also recruited Blake
to sell drugs and served as a point person for delivering cocaine once buyers had paid Blake and her
friends. Thus, the facts of this case show that Brown exercised sufficient control over Blake to make
him a manager with regard to her. The enhancement was appropriate.
1
Because the court agreed that Brown acted as a manager rather than a leader, he was only
assessed three points, in accordance with § 3B1.1(b) instead of four, in accordance with § 3B1.1(a).
The cited factors are contained in U.S.S.G. § 3B1.1, comment. (n.4), as distinguishing a leader from
a mere manager. However, we have followed Jeross in weighing them to determine whether a §
3B1.1(b) enhancement is warranted. See United States v. Walker, 399 F. App’x 75, 84-85 (6th Cir.
2010); United States v. Alepin, 296 F. App’x 509, 513-14 (6th Cir. 2008).
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2. The court’s mention of Rule 35(b)
We generally review all sentences for reasonableness under the deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). However, when a party fails to
object to a procedural defect in sentencing despite being given an opportunity to do so, we review
the claim of procedural unreasonableness for plain error. United States v. Vonner, 516 F.3d 382,
385-86 (6th Cir. 2008) (en banc). Because Brown alleges that the district court considered an
improper factor in determining his sentence, his challenge could be framed as attacking either the
substantive or procedural reasonableness of his sentence. See United States v. Recla, 560 F.3d 539,
544-545 (6th Cir. 2009). Thus, to the extent Brown challenges the procedural reasonableness of his
sentence, we review for plain error because he failed to object. However, to the extent his challenge
is to substantive reasonableness, we review for abuse of discretion. Under either standard, however,
his challenge fails.
During the sentencing hearing, the government moved for a downward departure, stating that
Brown provided substantial assistance to its investigation and prosecution of a narcotics officer and
his own high-level cocaine suppliers. See U.S.S.G. § 5K1.1. The court responded to the
prosecutor’s glowing remarks by asking, “And you anticipate that should this matter continue, you
will be writting [sic] Mr. Brown back for potential trial and you will be asking the Court for a 35(b)
motion if in fact you need to do that?” The prosecutor responded that he was “very confident” that
a Rule 35(b) motion would be filed at a later time. The court responded only with, “[o]kay. Thank
you.” The court then granted a four-level downward departure.
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On appeal, Brown argues that the court’s consideration of a possible Rule 35(b) motion
renders his sentence unreasonable. In support, he cites our decision in United States v. Recla, 560
F.3d 539 (6th Cir. 2009). In that decision—which came down after Brown’s November 14, 2008
sentencing—we reversed the same judge under somewhat similar facts. The defendant was
providing substantial assistance to the authorities, and there had been some discussion that the
government was considering a Rule 35(b) motion. The district court then stated: “It will be the
sentence of this Court . . . that a 70-month sentence in the Federal Bureau of Prisons will be imposed
with the understanding that there probably will be subsequent motions filed.” 560 F.3d at 544
(emphasis added). We noted that “sentencing courts cannot consider the potential for a future
sentence reduction in imposing sentence.” Id. at 545. The danger, of course, is that the sentencing
court will “impos[e] a higher sentence than it would have in the absence of the government’s stated
intention.” Id. at 546. Based on the court’s language and the fact that the sentence was at the high
end of the Guidelines range, we determined that the record was “ambiguous” as to whether the
district court had improperly considered the possibility of a Rule 35(b) motion, and remanded for
resentencing. Id. at 546-47.
However, Brown’s case is distinguishable from Recla. The district court’s inquiry creates
a serious issue for appeal, particularly because Brown’s sentencing judge was the same court we
reversed in Recla, and Brown’s sentence was also toward the upper end of the Guidelines range.
However, a mere reference to Rule 35(b) is not sufficient to imply that the district court considered
an impermissible factor if it appears that the possibility of such a motion did not influence the court’s
decision. See United States v. Rosenbaum, 585 F.3d 259, 266 (6th Cir. 2009) (“We are convinced
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that the result would have been the same even if there had never been any mention of a Rule 35
motion.”). In this case, the discussion of a Rule 35(b) motion came not while the court was weighing
the ultimate sentence, but rather in a discussion regarding a downward departure. Indeed, in
Brown’s case, the district court actually granted a four-level departure for substantial assistance—the
maximum requested by the government. Further, the district court did not raise the prospect of a
Rule 35(b) motion when explaining its reasons for choosing the 204-month sentence. This
difference in timing is an important distinction from Recla, where Rule 35 was mentioned in the
same breath the court used to pronounce the sentence. Therefore, we do not expand Recla’s holding
to these facts.
3. Failure to grant an adjustment
Brown argues that the district court committed reversible error by failing to adjust his
sentence pursuant to U.S.S.G. § 5G1.3(b). The Bureau of Prisons has noted that this area of law is
“probably the single most confusing and least understood federal sentencing issue.” By way of
background: awarding credit for time served is the exclusive responsibility of the Bureau of Prisons
(BOP) under 18 U.S.C. § 3585(b). United States v. Wilson, 503 U.S. 329, 333-34 (1992). However,
courts are not powerless in this arena. Section 5G1.3(b) of the United States Sentencing Guidelines
not only authorizes a sentencing court to reduce a defendant’s sentence for time served on related
charges, but actually uses mandatory language. A sentence reduction under § 5G1.3(b) is called an
adjustment. Federal courts have noted the confusion created by conflating the terms. See, e.g.,
Ruggiano v. Reish, 307 F.3d 121, 133 (3d Cir. 2002), abrogated by regulation (“[W]e encourage
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sentencing courts in the future to avoid using the term ‘credit’ to refer to § 5G1.3 adjustments so as
not to engender any unnecessary confusion.”).
Brown argued at sentencing and again in his motion to correct sentence that the district court
should adjust his sentence downward to account for the 41 months he served in state custody after
his conviction for possession of six kilograms of cocaine. He made this argument because he
believed, based on the PSR, that the conduct was “relevant” to his federal conviction. See U.S.S.G.
§ 5G1.3(b). However, the PSR in this case seems to have been relying on language from the 2002
version of the United States Sentencing Guidelines. In 2003, § 5G1.3(b) was amended to mandate
adjustments only where the “relevant conduct” was “the basis for an increase in the offense level for
the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments)”
(emphasis added).
Brown is not eligible for relief under § 5G1.3(b). Brown’s base offense level of 38 was
calculated based on his responsibility for more than 150 kilograms of cocaine, but he was held
responsible for 1,260 kilograms of cocaine in total. Therefore, even if the six kilograms from his
state conviction were deducted, he would have the same offense level. See United States v. Merrill,
332 F. App’x 791, 793 (3d Cir. 2009) (holding that a prior conviction would not meet the
requirements of § 5G1.3(b) because it was not used to calculate the offense level); cf. U.S.S.G. §
5G1.3, comment. (n.2(D)) (providing an example of the application of § 5G1.3(b), in which a prior
conviction for 15 grams of cocaine raises the overall quantity from 40 grams to 55 grams, and the
base offense level from 14 to 16). Thus, Brown was ineligible for an adjustment under § 5G1.3(b)
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because the conduct that led to his state sentence was not the basis for an increase in his offense
level.
III
For all these reasons, we AFFIRM the sentence of the district court.
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