United States v. MacKety

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0158p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 09-2148
v.
,
>
-
Defendant-Appellant. -
ALAN MACKETY,
-
N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 09-00092-001—Robert J. Jonker, District Judge.
Argued: April 27, 2011
Decided and Filed: June 17, 2011
Before: GIBBONS and WHITE, Circuit Judges; OLIVER, Chief District Judge*.

_________________

COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand
Rapids, Michigan, for Appellant. Jeff J. Davis, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson,
FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant.
Jeff J. Davis, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan,
for Appellee.
_________________

OPINION
_________________

HELENE N. WHITE, Circuit Judge. Defendant Alan Mackety challenges his
300-month sentence as procedurally and substantively unreasonable. We conclude that

*
The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District
of Ohio, sitting by designation.

1
No. 09-2148 United States v. Mackety Page 2

the district court’s blanket policy concerning the one-level point reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(b) affected the calculation of the
Guidelines range and usurped the Government’s discretion to move for a reduction under
§ 3E1.1(b), rendering Mackety’s sentence procedurally unreasonable. Accordingly, we
VACATE the sentence and REMAND for resentencing.

I.

Mackety was charged by a ten-count indictment with seven counts of sexual
abuse, 18 U.S.C. § 2242(1),1 and three counts of abusive sexual contact, 18 U.S.C.
§ 2244(a)(2), involving his minor step-daughter. Mackety pleaded guilty to three counts
of sexual abuse pursuant to a written plea agreement under which the Government
agreed to dismiss the remaining seven counts of the indictment.

In the plea agreement, the parties stipulated to the following facts:

Between September of 2008, and November 22, 2008, the
Defendant, who was a duly enrolled member of the Nottawaseppi Huron
Band of Potawatomi Indians at the time, lived at [address] . . . which is
on lands held in trust by the United States for the use and occupancy of
the Nottawaseppi Huron Band of Potawatomi Indians.[2] On one
occasion during this time period, the Defendant took M.B. into his
bedroom and took his clothes off, then proceeded to take her clothes off
and performed the following sexual acts: [] placed his mouth in . . .
M.B.’s vulva; [] had M.B. place her mouth on his penis; and [] penetrated
M.B.’s vagina with his penis. Prior to this, the Defendant had threatened
M.B. that if she told anyone about the sexual assaults, she would be taken
away from her mother, and she and her stepbrother would then be placed
in foster care. M.B. was thirteen years of age at the time of the incident.

1
Section 2242 prohibits sexual abuse on federal property, providing in pertinent part:
Whoever, in the . . . territorial jurisdiction of the United States . . . knowingly –
(1) causes another person to engage in a sexual act by threatening or
placing that other person in fear (other than by threatening or placing
that other person in fear that any person will be subjected to death,
serious bodily injury, or kidnapping) . . .
or attempts to do so, shall be fined under this title and imprisoned for any term of years
or for life.
2
The Reservation on which Mackety lived became federal trust land as of July 8, 2008.
No. 09-2148 United States v. Mackety Page 3

In February of 2009, during a phone call to his wife, the Defendant
admitted to sexually assaulting M.B.

The Government agreed in the plea agreement not to oppose Mackety’s request for a
two-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a).

The Presentence report (“PSR”) “reservedly recommend[ed]” that Mackety
receive a two-level reduction for acceptance of responsibility under § 3E1.1(a),
calculated a Guidelines range of 188 to 235 months, and recommended concurrent 235-
month sentences for each of the three counts.

After Mackety filed his sentencing memorandum but before the Government
filed its memorandum, the district court filed a Notice of Possible Sentencing Issues,
advising that it would consider 1) “whether any credit for acceptance of responsibility
is appropriate in this case,” 2) “whether the nature and circumstances of the offense
warrant an upward variance,” and 3) “whether the apparently limited rehabilitative
potential for [Mackety] warrants an upward variance.”

Consistent with the PSR, the Government’s sentencing memorandum requested
that the court sentence Mackety at the high end of the Guidelines range – to 235 months
if he received the two-level reduction for acceptance of responsibility. The
Government’s sentencing memorandum stated that “the United States does not believe
an upward variance in this case should be imposed.”

The district court granted a two-level reduction for acceptance of responsibility
under § 3E1.1(a), departed upward by one criminal-history category under U.S.S.G.
§ 4A1.3, and also varied upward from the 188- to 235- month advisory Guidelines
range, imposing a 300-month sentence.

II. PROCEDURAL UNREASONABLENESS

“[A]ppellate review of sentencing decisions is limited to determining whether
they are ‘reasonable’.” Gall v. United States, 552 U.S. 38, 46 (2007). Courts of appeals
must review all sentences, including those significantly outside the Guidelines range,
under a deferential abuse-of-discretion standard. Id. at 41; United States v. Grossman,
No. 09-2148 United States v. Mackety Page 4

513 F.3d 592, 595 (6th Cir. 2008). Procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines 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 . . .” Gall, 552 U.S. at 51.
This court reviews the district court’s legal interpretation of the Guidelines de novo, and
its factual findings for clear error. United States v. Brooks, 628 F.3d 791, 796 (6th Cir.
2011).

A.

Section 3E1.1 of the November 1, 2008 edition of the Guidelines provided:

§ 3E1.1 Acceptance of Responsibility

(a) If the defendant clearly demonstrates acceptance of responsibility for
his offense, decrease the offense level by 2 levels.
(b) 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 by 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.
....
Commentary
Application Notes:
....
6. [] The timeliness of the defendant’s acceptance of responsibility is a
consideration under both subsections, and is context specific. In general,
the conduct qualifying for a decrease in offense level under subsection
(b) will occur particularly early in the case. For example, to qualify
under subsection (b), the defendant must have notified authorities of his
intention to enter a plea of guilty at a sufficiently early point in the
process so that the government may avoid preparing for trial and the
court may schedule its calendar efficiently.
Because the Government is in the best position to determine
whether the defendant has assisted authorities in a manner that avoids
No. 09-2148 United States v. Mackety Page 5

preparing for trial, an adjustment under subsection (b) may only be
granted upon a formal motion by the Government at the time of
sentencing. . . . .
....
Section 401(g) of Public Law 108–21 directly amended
subsection (b), Application Note 6 (including adding the last paragraph
of that application note), and the Background Commentary, effective
April 30, 2003.

U.S. Sentencing Guidelines Manual § 3E1.1 & cmt. n.6 (2008) (some emphasis added).

B.

Mackety challenges the denial of the additional one-level reduction for
acceptance of responsibility under § 3E1.1(b) as procedurally unreasonable. Had
Mackety received this reduction, the Guidelines range would have dropped from 188 to
235 months to 168 to 210 months (total offense level 35 and criminal-history category
I).3 Mackety’s claim is rooted in the district court’s written policy, set forth in its April
28, 2009, Order Setting Final Pretrial and Trial dates:

A defendant who waits until the time set for the final pretrial
conference to plead guilty may not receive the one-level reduction in
offense level described in U.S.S.G. § 3E1.1(b), even if the government
is prepared to move for it.[4]

Mackety argues that this policy usurps the discretion given to the Government by
Congress and violates the fundamental policy favoring individualized consideration of
each defendant. He argues that, under the circumstances of this case, he was deprived
of a properly-calculated advisory Guidelines range because the Government interpreted
the district court’s policy as a categorical denial of a § 3E1.1(b) reduction for acceptance
of responsibility and thus did not move for it.

We conclude that the district court’s policy resulted in a failure to properly apply
the Guidelines and thus resulted in procedural error.

3
www.ussc.gov/Guidelines/2008_guidelines/Manual/GL2008.pdf, Sentencing Table, Ch. 5 Pt.
A.
4
R. 19 at 2, Order Setting Final Pretrial and Trial, 4/28/09.
No. 09-2148 United States v. Mackety Page 6

C.

We reject the Government’s argument that the district court’s policy is consistent
with controlling case law. In support, the Government cites only cases that preceded the
2003 amendment of § 3E1.1(b). The 2003 amendment specified that a § 3E1.1(b)
reduction for acceptance of responsibility must be in response to a motion by the
government. See, e.g., United States v. Deberry, 576 F.3d 708, 710 (7th Cir. 2009)
(noting that the 2003 amendment “turned subsection (b) into a license for prosecutorial
discretion”). In the Government’s cited cases, this court upheld denials of the § 3E1.1(b)
reduction because the defendants waited to notify the government of their intent to plead
guilty until days before trial or pleaded guilty on the eve of trial. United States v.
Bashara, 27 F.3d 1174, 1184-85 (6th Cir. 1994), superseded by statute on other grounds
as stated in United States v. Caseslorente, 220 F.3d 727 (6th Cir. 2000) (guilty plea
entered five days before trial); United States v. Smith, 245 F.3d 538, 547 (6th Cir. 2001)
(defendant notified government of intent to plead guilty on evening before trial); United
States v. Gonzalez, 7 F. App’x 529, 530 (6th Cir. 2001) (unpublished disposition)
(defendant notified government he would plead guilty on morning of trial); United States
v. McGruder, 168 F.3d 490 (6th Cir. 1998) (table disposition) (guilty plea entered four
days before trial); United States v. Thomas, 124 F.3d 201 (6th Cir. 1997) (table
disposition) (guilty plea entered on day of trial). Additionally, none of these cases
involved a blanket order or policy. Rather, in each case, the decision not to grant the
additional one-level reduction was based on the facts of the specific case.

We further reject the Government’s argument that any error is harmless because
the Government would not have moved for the § 3E1.1(b) reduction in any event. The
record supports the argument that the district court’s policy influenced the Government
not to move for a § 3E1.1(b) reduction and, in doing so, usurped the Government’s
discretion to move for the § 3E1.1(b) reduction. At the May 26, 2009, change-of-plea
hearing, the Government stated that it had not addressed the § 3E1.1(b) reduction in the
Plea Agreement because of the district court’s rule and that it would not oppose a third-
No. 09-2148 United States v. Mackety Page 7

level reduction.5 A similar understanding of the district court’s policy also affected the
Probation Officer’s calculation of the advisory Guidelines range. Specifically, the PSR
did not recommend a § 3E1.1(b) reduction because Mackety’s plea was “untimely”
under the district court’s policy:

88. [Mr. Mackety entered his guilty plea on the day scheduled for the
final pretrial conference. Notes taken at the change of plea
hearing suggest the Assistant U.S. Attorney will not object to the
additional one-level reduction. However, in U.S. District Judge
Robert J. Jonker’s Order Setting Final Pretrial and Trial dated
April 28, 2009, the Court advised the parties a defendant who
waits until the time set for the final pretrial conference to plead
guilty may not receive the one-level reduction in offense level
described in U.S.S.G. § 3E1.1(b), even if the government is
prepared to move for it. Therefore, the guilty plea is not
considered timely. Pursuant to U.S.S.G. § 3E1.1(b), the offense
level has not been reduced.

The PSR addendum addressed Mackety’s objection to the PSR’s failure to recommend
the additional one-level reduction and reiterated that the district court’s policy precluded
it:

5
The following exchange took place between the district court and Government counsel during
the change-of-plea hearing:
THE COURT: Okay. Is the government’s position that the plea is too late for the
government to move for the third point?
MR. DAVIS: Your Honor, this is sort of a strange case because of the defense
attorney’s loss of a nephew during this process, things were sort of delayed on – within
[sic?] our control.
With that said, we didn’t put information regarding the third point because of the
Court’s – this Court’s rule on --
THE COURT: All right.
MR. DAVIS: – a defendant pleading guilty, but we wouldn’t oppose that.
THE COURT: All right. So we can deal with that at the time of sentencing --
MR. DAVIS: Yes, Your Honor.
THE COURT: – but it’s in deference to the final pretrial time. And I appreciate that
and the background as well.
No. 09-2148 United States v. Mackety Page 8

OBJECTION
Paragraph No. 88 (by inference paragraph numbers 89, 91, and 142)
The defendant objects to the probation officer’s failure to recommended
[sic] the additional one level reduction for timely accepting responsibility
for his involvement in the offense. Defense counsel argues the defendant
did not plead guilty prior to the Final Pretrial Conference because
defense counsel was unavailable due to the untimely death of defense
counsel’s nephew.

RESPONSE
On April 28, 2009, the Court advised the parties a defendant who waits
to plead guilty until the time set for the final pretrial conference may not
receive the one-level reduction in offense level described in U.S.S.G.
§ 3E1.1(b), even if the government is prepared to move for it.

Finally, the Government’s sentencing memorandum stated it would not move for an
additional one-level reduction for acceptance of responsibility because of the district
court’s policy and the plea agreement:

The United States, consistent with the executed plea agreement in this
matter, and this Court’s scheduling order, will not move for an additional
1 point as contemplated by USSG § 3E1.1(b). See ¶ 88.

Thus, it was the understanding of the Government and Probation Officer that the policy
language “may not receive” meant that a defendant is not permitted to receive the
additional one-level reduction.

At sentencing, after discussion of the timing of defense counsel’s nephew’s death
and the impact of her consequent absence on the timing of Mackety’s guilty plea, the
Government advised that it would not move for the § 3E1.1(b) reduction. Thereafter,
the district court stated it was not granting the third-point reduction “Because I can’t.
It’s not before me on a government motion.” The court went on to explain that even if
the Government had filed such a motion, it would not grant it.

The court’s remarks at sentencing suggest that its policy was not mandatory, but
it is clear that both the Government and the Probation Officer believed (at least up to the
time of the sentencing hearing) that the policy was mandatory, i.e., that the district court
would not grant any motion for an additional one-point reduction for any defendant who
No. 09-2148 United States v. Mackety Page 9

did not plead before the final pretrial conference. The Government is correct that it
stated at sentencing that it would not move for the § 3E1.1(b) reduction, but its statement
followed an extensive discussion regarding whether Mackety’s plea was entered before
the final pretrial conference – a condition the district court set forth in its standing order,
which as implemented, contravenes § 3E1.1(b).

In sum, the Government’s prerogative and discretion to move for the § 3E1.1(b)
reduction was affected throughout the proceedings by the district court’s policy, a policy
that contravenes the Congressional finding expressly stated in § 3E1.1(b) that “the
Government is in the best position to determine whether the defendant has assisted
authorities in a manner that avoids preparing for trial.” This Guidelines commentary
was mandated by Congress in the Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act (“PROTECT Act”). U.S.S.G. § 3E1.1 & cmt. n.6
(2008) (quoting § 401(g)(2)(B) of Public Law 108-21 []); United States v. Smith, 429
F.3d 620, 628 (6th Cir. 2005) (“Congress made clear its purpose in amending § 3E1.1(b)
[a change effected by the PROTECT Act, effective April 30, 2003,] to require a
government motion: The government is in the best position to know whether it has
conserved resources.”) Because the record supports that the district court’s policy had
the effect of usurping the Government’s discretion in deciding whether to move for a
third-point reduction and affected the calculation of the Guidelines range, we must
remand for resentencing.

D.

At argument, counsel advised that the policy at issue here is commonplace in the
Western District of Michigan, and often set forth in standing orders, although not in the
Local Rules, www.miwd.uscourts.gov/rules_opinions.htm. A second Western District
of Michigan judge has posted on that court’s website a similar policy:

This Court cannot allocate its resources efficiently if it must open
court for a final pretrial conference. Therefore, if court is opened for a
final pretrial conference, even if a defendant pleads guilty at the time set
for the final pretrial conference, the defendant will not receive the one-
level reduction in offense level described in U.S.S.G. § 3E1.1(b). . . .
No. 09-2148 United States v. Mackety Page 10

We take this opportunity to advise that such policies should be discontinued immediately
because they are inconsistent with Congress’ intent that the Government make the
decision whether to move for the additional one-level reduction under § 3E1.1(b).

E.

Assuming, arguendo, that the district court had the authority to deny a § 3E1.1(b)
motion,6 we agree with Mackety that the court’s alternative ground for denying the
reduction was not independently sufficient to warrant the denial. At sentencing, the
district court stated that Mackety’s delay in pleading guilty prompted the Government

6
Authority on this issue is sparse – the only circuit court case cited that remarks on whether,
following the 2003 amendment, sentencing courts have the discretion to deny a Government § 3E1.1(b)
motion, Deberry, 576 F.3d 708, answers the question in the negative. The Seventh Circuit noted in
Deberry:
Subsection (b) confers an entitlement on the government: if it wants to give the
defendant additional credit for acceptance of responsibility, perhaps to induce additional
cooperation, and can satisfy the criteria in the subsection, it can file a motion and the
defendant will get the additional one-level reduction in his offense level, though again
this may not determine his actual sentence.
Until subsection (b) was amended in 2003 to specify that the relief granted
must be in response to a motion by the government, the defendant was entitled, just as
subsection (a) entitles defendants, to relief if the criteria were met. United States v.
Townsend, 73 F.3d 747, 755-56 (7th Cir. 1996). The amendment turned subsection (b)
into a license for prosecutorial discretion. A duty was converted to a power . . . .
[] [The government] may not base a refusal to file a motion under section 3E1.1(b) on
an invidious ground, or (and here is where the government’s discretion is less extensive
than it is with regard to charging decisions) on a ground unrelated to a legitimate
governmental objective. Wade v. United States, 504 U.S. 181, 185-86 [] (1992); United
States v. Richardson, 558 F.3d 680, 682 (7th Cir. 2009) [].
Deberry, 576 F.3d at 710-11 (certain citations omitted). The only pertinent scholarly commentary our
research yielded on the question is more equivocal. Federal Sentencing Law and Practice § 3E1.1, cmt.
n.13, states in pertinent part:
13. Additional reduction (subsection (b)) after April 30, 2003 amendment. . . .
....
Suppose the defendant qualifies for a decrease under subsection (a) . . . and the
government moves for a reduction based on timely notification of intent to plead guilty
but the court disagrees that the notification of intent to plead guilty was timely. Does
the court have discretion to reject the subsection (b) adjustment? The revised wording
of subsection (b) (“and upon motion of the government stating that the defendant . . . ,
decrease the offense level by one level,”) suggests that the court does not have
discretion to reject the adjustment, but the use of “may” rather than “shall” in revised
application note 6 (“an adjustment under subsection (b) may only be granted upon a
formal motion by the Government”) (emphasis added) might be read as suggesting that
the court retains discretion to reject the adjustment if it does not concur with the
government’s assessment of the timeliness of the defendant’s action.
(Emphasis added.) We need not decide this issue because it is not squarely presented in this appeal.
No. 09-2148 United States v. Mackety Page 11

to file motions in preparation for trial. The Government indeed did file several motions,
but, as Mackety argues, at the time of his plea, the Government stated that it would not
oppose his receiving the § 3E1.1(b) reduction and that it had not mentioned it in the plea
agreement because of the district court’s policy. When the Government so stated at the
plea hearing, it had already expended the effort referred to by the district court. In sum,
the district court’s alternative rationale for denying the § 3E1.1(b) relied on grounds the
Government apparently would not have raised itself and apparently did not believe
warranted denial of the § 3E1.1(b) reduction.

F.

Given our disposition, we need not address Mackety’s argument that the district
court’s upward departure in his criminal-history category rendered his sentence
procedurally unreasonable because the court failed to provide him notice of a potential
departure. Nor do we consider Mackety’s substantive unreasonableness claims. United
States v. Wilson, 614 F.3d 219, 226 (6th Cir. 2010) (stating that “an appellate court is
required to assess the substantive reasonableness of a sentence only if the sentence is
procedurally sound”) (citing Gall, 552 U.S. at 51).

For the reasons stated, we conclude that the district court’s policy foreclosing a
§ 3E1.1(b) reduction for acceptance of responsibility clearly affected the calculation of
the Guidelines range and usurped the Government’s discretion, rendering Mackety’s
sentence procedurally unreasonable. We VACATE the sentence and REMAND for
resentencing.