United States v. Judge

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0219p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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-
-
No. 09-2624
v.
,
>
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Defendant-Appellant. -
MICHAEL JUDGE,
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Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 07-20625-015—Thomas L. Ludington, District Judge.
Argued: July 26, 2011
Decided and Filed: August 15, 2011
Before: BOGGS, GILMAN, and COOK, Circuit Judges.

_________________

COUNSEL
ARGUED: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Shane N. Waller,
ASSISTANT UNITED STATES ATTORNEY, Bay City, Michigan, for Appellee.
ON BRIEF: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Shane N.
Waller, ASSISTANT UNITED STATES ATTORNEY, Bay City, Michigan, for
Appellee.
_________________

OPINION
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BOGGS, Circuit Judge. Michael Judge pleaded guilty to conspiracy to distribute
the drug “ecstacy,” in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court
granted Judge a 24-month downward variance to account for his cooperation with the
government, and sentenced Judge to 71 months of imprisonment. Judge appeals his
sentence, arguing that the district court failed to consider what it should have—several

1
No. 09-2624 United States v. Judge Page 2

of his mitigating arguments—and, instead, considered what it should not have—the
possibility of future sentence relief under Rule 35 of the Federal Rules of Criminal
Procedure. For the reasons set forth below, we conclude that the record does not
demonstrate that the district court committed any error, and we therefore affirm Judge’s
sentence.

I

On December 12, 2007, Judge was indicted along with fourteen others for
conspiring to distribute and to possess with intent to distribute ecstacy,1 in violation of
21 U.S.C. §§ 841(a)(1) and 846. On August 20, 2008, Judge was charged in a
superseding indictment, which added four new defendants but no new charges.

On January 9, 2009, Judge entered into a plea agreement with the government.
Judge agreed to plead guilty to count one of the single-count indictment and stipulate to
the following:

From about 2005 to December 2007, defendant agreed with one or more
of his co-defendants to possess with intent to distribute and to distribute
quantities of ecstasy in the Eastern District of Michigan and elsewhere.
During this time frame, defendant participated directly and indirectly in
the purchase and distribution of 78,000 ecstasy tablets, which is
equivalent to approximately 8,970 kilograms of marijuana for purposes
of determining defendant’s offense level.

The parties agreed that the Guidelines range was 87–108 months in prison, and Judge
waived his right to appeal his “conviction” if the court sentenced him within that range.2

On March 15, 2009, the district court accepted Judge’s guilty plea. At the plea
hearing, Judge explained that he received the ecstasy from two individuals and then gave

1
Specifically, the indictment refers to “3,4-methylenedioxyamphetamine (MDA) and 3, 4-
methylenedioxymethamphetamine (MDMA), both substances commonly known as ecstasy.”
2
The government filed a motion to dismiss this appeal pursuant to the plea agreement. In
response, Judge argued that the plea agreement does not bar this appeal because he appeals only his
sentence, not his conviction, which is the term used in the agreement. The government has since conceded
that the plea agreement does not bar this appeal, and we need not address the issue any further. See United
States v. Phoenix, 414 F. App’x 755, 758 (6th Cir. 2011) (“Because the government has conceded that the
appeal waiver is invalid in the circumstances of this case, we deem the argument waived and consider the
merits of [the] appeal.”).
No. 09-2624 United States v. Judge Page 3

it to three others to distribute. Judge also confirmed that he was responsible for the
distribution of 78,000 ecstasy tablets.

Prior to sentencing, a United States Probation Officer prepared a Presentence
Report (“PSR”). The PSR calculated Judge’s base offense level to be 34, and then
subtracted two levels because Judge met the criteria for the Guidelines’ “safety-valve”
reduction, see USSG §5C1.2, and subtracted another three levels because Judge accepted
responsibility, see id. §3E1.1. The PSR noted that Judge had no criminal history and
accordingly placed him in criminal history category I. Based on Judge’s total offense
level of 29 and criminal history category of I, the PSR calculated his Guidelines range
to be 87 to 108 months in prison. Neither Judge nor the government filed any objections
to the PSR.

On September 22, 2009, Judge filed a motion for either a downward departure
or a variance. The motion argued that Judge’s was not a “heartland” case and pointed
out that he had no prior criminal record, had maintained steady employment, and
recognized the importance of education. The motion further noted that Judge had
remained drug-free while out on bond, has overall lived an exemplary life while on
bond, and posed no threat to public. The motion also indicated that Judge had provided
substantial assistance to the government, which would be detailed at the time of
sentencing, and that he was genuinely remorseful for his conduct. The motion did not
request a sentence of a particular length, but rather asked only generally for a downward
departure or variance.

In early December 2009, Judge obtained a new attorney, who continues to
represent him on appeal. On December 11, 2009, Judge filed a supplemental motion for
a variance, which included a half-page memorandum of law. Specifically, Judge sought
a variance based on the substantial assistance that he had provided to the government,
which he detailed in a supplemental filing, and he stated in the memorandum that the
court is required to consider his request pursuant to United States v. Blue, 557 F.3d 682,
686 (6th Cir. 2009), and United States v. Petrus, 588 F.3d 347, 356 (6th Cir. 2009).
No. 09-2624 United States v. Judge Page 4

Judge’s sentencing hearing was on December 17, 2009. Early in the proceeding,
the district court stated that it read Blue and Petrus to indicate that it had an obligation
to consider the evidence of Judge’s assistance to the government as part of the section
3553(a) sentencing factors, even though the government had not filed a motion under
USSG §5K1.1 based on substantial assistance. The parties discussed that legal issue at
length, as well as the scope of the assistance that Judge had provided. The government
explained that it had not filed a 5K1.1 motion because the relevant investigations and
Judge’s assistance were both still ongoing, and it therefore could not yet evaluate what
relief Judge would be entitled to. The government argued that, “[i]n theory, the
defendant could show up at a trial and completely change his story and the cases could
ultimately be dismissed which would negate any cooperation he has done.” The
government did, however, confirm that the information Judge had provided to the court
about his assistance was, at the time of the hearing, accurate.

Next, Judge made four distinct arguments in favor of a lower sentence. First,
Judge’s counsel discussed at length the fact that Judge terminated his criminal conduct
before he was caught by investigators. Second, counsel argued that Judge has a
significant employment history, is a successful businessman, and has tried to better
himself. Third, counsel noted that Judge previously had a substance-abuse problem, but
has had no positive drug tests since being charged. Finally, both counsel and, to a
greater extent, Judge himself argued that Judge fully accepted responsibility and was
truly sorry for his conduct.

Finally, the district court explained its sentence. The court noted that the fact that
Judge had stopped working to distribute drugs before being caught was a “significant”
mitigating factor. The court went on to explain that, “on the other hand,” Judge was
involved in a substantial drug conspiracy that involved large amounts of controlled
substances and was “involved not only in the distribution but also in the financing.” The
court further noted that, although Judge’s entrepreneurial skills were impressive, it was
how he employed those skills that got him into trouble to begin with. Next, the district
judge explained to Judge that, “you’ve got to correct your behavior if you ultimately
No. 09-2624 United States v. Judge Page 5

want to accomplish things in life that I do believe you wish to do.” The court explained
that, having considered both the Guidelines and separately considered the section
3553(a) sentencing factors—except for Judge’s cooperation, it would sentence Judge to
95 months in a prison that offers a comprehensive drug-treatment program. Finally, the
court considered Judge’s cooperation with the government. The court noted that Judge’s
cooperation was consistent with that in cases where it had given sentence reductions of
30 to 40 percent pursuant to 5K1.1 motions. However, the court explained that, “[i]n
this case, the assistance [Judge] may provide the government may not be complete and
certainly that is the point that’s been advanced by the government . . . . For that reason
that I agree with, I believe that a 25 percent reduction is warranted by reason of the
application of the 3553(a) factors . . . .”3 The court accordingly sentenced Judge to 71
months in prison.

After explaining the sentence, the district court asked counsel if he had “any
questions or objections to the sentence that has not been previously risen [sic]?”
Defense counsel responded that he had no objections, but asked the court to clarify
whether its analysis of the section 3553(a) factors included Judge’s cooperation. The
court responded that it did include Judge’s cooperation, and that it indeed had stated
precisely how much credit it had given Judge for his cooperation. After directing the
marshal to take Judge into custody that day, the court again asked defense counsel if he
had “anything further.” Counsel asked the court if it had indicated that it would
recommend a substance-abuse treatment program for Judge, and the court responded in
the affirmative. Counsel then asked the court if it would recommend that Judge be
placed at the prison closest to his parents’ home, and the court responded that it would
do so. Finally, the court again asked defense counsel if he had anything further, and
counsel responded that he did not.

3
At oral argument, Judge suggested that it is not clear whether the district court considered his
cooperation as part of the section 3553(a) factors. We cannot imagine how the district court could have
indicated that it was doing so, and to what extent, with any greater level of clarity.
No. 09-2624 United States v. Judge Page 6

Judge filed his timely notice of appeal on December 23, 2009. This court has
jurisdiction to review the final judgment of the district court pursuant to 28 U.S.C.
§ 1291.

II

A

Sentences are generally reviewed for an abuse of discretion, but where a
defendant asserts a procedural error on appeal that was not raised below when prompted
by the district court in accordance with United States v. Bostic, 371 F.3d 865, 872 (6th
Cir. 2004), our review is limited to determining whether the sentencing court committed
plain error. United States v. Lanning, 633 F.3d 469, 473 (6th Cir. 2011). The plain-error
standard of review requires that the defendant show “(1) error (2) that was obvious or
clear, (3) that affected the defendant’s substantial rights[,] and (4) that affected the
fairness, integrity, or public reputation of the proceedings.” United States v. Vonner, 516
F.3d 382, 386 (6th Cir. 2008) (en banc) (internal punctuation and citation omitted).

A district court must explain the sentence it has chosen, but it is well-settled that
it is not required to respond to every argument raised by the defendant. Id. at 387. For
example, a district court need not respond to straightforward or frivolous arguments,
particularly those that are legal—versus factual—in nature. United States v. Simmons,
587 F.3d 348, 361–62 (6th Cir. 2009). Further, within-Guidelines sentences need not
be explained with the same level of detail as non-Guidelines sentences. Vonner, 516
F.3d at 387. The level of detail required in the court’s explanation will vary from case
to case, and the underlying inquiry is “whether the record makes clear that the
sentencing judge listened to each argument, considered the supporting evidence, was
fully aware of the defendant’s circumstances[,] and took them into account in sentencing
him.” Ibid. (internal punctuation and citation omitted).
No. 09-2624 United States v. Judge Page 7

B

Because Judge did not raise his inadequate-explanation argument before the
district court, either in response to the court’s Bostic question or earlier in the
proceeding, we review the adequacy of the district court’s explanation of its sentence
under the plain-error standard of review. Judge asserts in his opening brief that his
procedural argument is preserved because the district court “was presented with all of
the reasons for a downward variance both before and during the sentencing proceeding.”
Appellant’s Br. at 15. But presenting the district court with substantive arguments is not
the same as making an objection to the district court’s explanation of its consideration
of those arguments. See Vonner, 516 F.3d at 386. It is thus clear that plain-error review
applies to Judge’s inadequate-explanation argument, and Judge conceded that much in
his reply brief and at oral argument.

Judge mistakenly relies on United States v. Wallace, 597 F.3d 794 (6th Cir.
2010), in which this court held that a sentencing judge committed plain error by failing
to respond to the defendant’s primary mitigating argument and imposing a sentence
inconsistent with that argument. See id. at 803–04. Judge’s primary argument at
sentencing was that he deserved a lower sentence because of the substantial assistance
he provided to the government. Judge filed a pre-hearing motion focused exclusively
on this factor, and both the sentencing court and the parties discussed it at great length
at the sentencing hearing. Indeed, Judge emphasized both in his reply brief and at oral
argument that his primary focus was on that particular argument. The record clearly
reflects that the district court thoroughly addressed the substantial-assistance argument,
and Judge was in fact successful on that point, receiving a 25% reduction in his term of
imprisonment. Therefore, Wallace does not reach this case.

Significantly, many of the arguments that Judge claims the district court ignored
are, in context, inseparable from those that the court clearly considered. For example,
at sentencing, Judge argued that he has a substantial employment history and has worked
to better himself as a businessman. The district court was not impressed by that
argument, explaining that it was Judge’s use of his skills as a businessman that caused
No. 09-2624 United States v. Judge Page 8

the trouble he was in to begin with. That explanation sufficiently discharged any
obligation of the district court to respond to the employment argument. See United
States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010) (holding that a district court
adequately responded to an argument by briefly stating why it was unpersuasive).

On appeal, however, Judge attempts to count each statement that he made in
support of his employment argument as an independent argument, and he argues that the
district court erred by failing to respond to those “arguments.” Of the six or seven4
arguments that Judge argues that the district court ignored, two were presented as
components of the employment argument that the district court clearly did consider: first,
that Judge “underst[ands] the importance of an education . . . [and] has used his
education to improve his employment opportunities,” and, second, that Judge has “made
every effort to turn his life around and . . . [has] an exciting business opportunity.”
Reply Br. at 4. The district court is required to consider each argument, not to carve out
and separately analyze each supporting statement. See Vonner, 516 F.3d at 387.
Accordingly, the district court sufficiently considered the employment argument,
including the two subarguments that Judge points to on appeal. Further, the question
here is whether the district court “plainly violated its duty to analyze the relevant
sentencing factors and [Judge’s] arguments for leniency,” id. at 388, and Judge’s
asserted error relies on a far-too-microscopic view of the mitigating arguments that he
made at sentencing to qualify as “plain.”

Similarly, three of the six allegedly unanswered arguments were part of Judge’s
argument that he remained clean while the charges were pending. Both in his motion
for a departure or variance and at the sentencing hearing, Judge noted, with no particular
emphasis, that he had been clean and crime-free while on bond. On appeal, he attempts
to parse that argument into three different arguments, at least one of which was not at
all made at sentencing, and he argues that the district court erred by failing to respond
to each of the three. Specifically, Judge faults the court for not responding to his

4
In his reply brief, Judge enumerates six arguments that the district court allegedly ignored, but
he also discusses a remorse argument, which was not clearly among those enumerated.
No. 09-2624 United States v. Judge Page 9

argument that, because two years is an unusually long time to be out on bond, his good
behavior while the charges were pending is somehow more indicative of his true
behavior than in an ordinary situation. Perhaps this argument could have some merit,
but fatal to it here is the simple fact that Judge never made it before the district court.
At the sentencing hearing, Judge noted that he had been clean for the “extended period
of time this case has been ongoing,” but made absolutely no argument as to the
significance of that fact. Judge also presents as two distinct arguments, first, that he
remained drug-free, and second, that he presents no risk to the public. However, the
second argument, which was included in passing in the first of Judge’s two pre-hearing
motions, was made in the exact same context as the first. In any case, the court
adequately acknowledged both by noting that Judge ended his criminal conduct on his
own, expressing its belief that Judge sincerely wants to be a successful, law-abiding
citizen, and requesting that Judge be sent to a facility with a substance-abuse program.
Under our limited standard of review, and accounting for the conceptual simplicity of
the argument at issue, that response was sufficient. See United States v. Greer, 359 F.
App’x 642, 646 (6th Cir. 2010).

Judge also argues that the district court failed to consider his argument that he
was remorseful, but the record reflects otherwise. However, the district court granted
Judge a three-point downward adjustment for his sincere acceptance of responsibility,
which indicates that the court did, in fact, consider the argument. See United States v.
Castillo-Garcia, 205 F.3d 887, 889 (6th Cir. 2000) (holding that remorse is a
consideration when determining whether a defendant merits an adjustment under USSG
§3E1.1). Accordingly, Judge cannot show plain error.

Finally, Judge contends that the district court failed to address his argument that
he had no criminal history. Notably, Judge did not make any such argument at the
sentencing hearing. Rather, he pulls the asserted argument from two sentences included
in his first motion for a downward departure or variance, in which he stated, “Defendant
has no prior criminal record whatsoever. This case represents Defendant’s first and only
criminal conviction.” This mere statement of fact, which is amply stated in the PSR and
No. 09-2624 United States v. Judge Page 10

in the Guidelines range considered by the district court, does not include any argument
for a departure or variance, or for any particular relief whatsoever. Because this court
has held that a sentencing court need not address “vague suggestion[s]” in favor of a
lower sentence, United States v. Dumas, 361 F. App’x 646, 650 (6th Cir. 2010), and
because Judge’s asserted argument does not rise to even that minimal level of argument,
the district court committed no error, let alone a plain error, by not responding in some
way to Judge’s fleeting reference to his lack of a criminal history.

Because the record reflects that the district court considered the core thrust of all
of the arguments that Judge actually presented, we hold that the district court’s
explanation of its sentence was adequate. To be sure, the court’s explanation could have
been fuller. The court could have, for example, more explicitly considered each section
3553(a) factor, although that is a shortcoming that Judge does not assert as an error on
appeal. In any case, the court’s explanation was sufficient and certainly not plain error.

III

A

Where a defendant has provided the government with substantial assistance in
the prosecution of others, the government may move the sentencing court to reduce the
defendant’s sentence, either under section 5K1.1 of the Sentencing Guidelines or, after
the defendant has been sentenced, under Rule 35(b) of the Federal Rules of Criminal
Procedure. In addition, decisions of this court have recently made clear that district
courts may, at a defendant’s request, grant variances at sentencing based on the
defendant’s substantial assistance to the government. Petrus, 588 F.3d at 356; Blue, 557
F.3d at 682.

Although a district court has in effect multiple opportunities, both during and
after sentencing, to reduce a defendant’s sentence for providing substantial assistance,
it is crucial that the court “maintain the temporal boundaries” of the various forms of
requested relief and not consider the prospect of future relief when deciding whether the
defendant currently merits relief. United States v. Recla, 560 F.3d 539, 545 (6th Cir.
No. 09-2624 United States v. Judge Page 11

2009). For example, when deciding a section 5K1.1 motion, a district court commits
error by considering the possibility of future relief under Rule 35(b). United States v.
Ridge, 329 F.3d 535, 542–43 (6th Cir. 2003). Although this court has not yet had the
opportunity to apply this principle to motions made by defendants pursuant to Petrus and
Blue, it follows from our existing case law that, when a district court considers a
defendant’s motion for relief in lieu of a section 5K1.1 motion from the government, it
must evaluate the value of the defendant’s assistance without regard to the possibility
of future motions based upon future assistance. However, the “mere mention of [a]
possible future” motion for sentencing relief “will not invalidate the district court’s
ruling.” Id. at 542. Rather, the relevant question is whether the court possibly gave
Judge a longer sentence than it otherwise would have because it anticipated an
opportunity to reduce his sentence in the future. See id. at 543; Recla, 560 F.3d at 546.

Whether a district court’s reliance on an impermissible factor is a procedural or
a substantive error remains a disputed question of law in this circuit. United States v.
Brown, 417 F. App’x 488, 492 (6th Cir. 2011); see Recla, 560 F.3d at 544–45. We do
not resolve the ambiguity today, however, because whether the impermissible-factor
argument is classified as substantive or procedural does not affect the result. Although
Judge made no relevant objection before the district court, his impermissible-factor
argument is without merit even if analyzed as a substantive argument under the abuse-of-
discretion standard of review. Moreover, the government, in its brief, treated Judge’s
argument as substantive and analyzed it under the abuse-of-discretion standard. We
therefore assume, without deciding, that Judge’s impermissible-factor argument is
substantive in nature and that, even though Judge made no objection below, the abuse-
of-discretion standard of review applies on appeal.

B

Although it is possible to interpret the district court’s comments in a way that
suggest that it based its sentence on the possibility of a future Rule 35(b) motion, the
better interpretation is that the district court properly sentenced Judge based on its
assessment of the cooperation he had provided as of the date of sentencing, without
No. 09-2624 United States v. Judge Page 12

regard for the possibility of future cooperation or motions. The issue is at its core one
of interpretation. Did the district court determine that Judge had provided assistance that
merits a 40% reduction, but only credited him 25% because it believed that the
government would move for a greater reduction in the future? That would have been
improper. Or, did the district court determine that Judge had commenced assistance that,
once completed, will merit a 40% reduction, but, at the time of sentencing, the
incomplete assistance merited only a 25% reduction? That would have been proper.
Our reading of the record suggests that it was the latter.

Significantly, the district court found that Judge’s cooperation was not yet
complete. Although the court stated that Judge’s assistance was “consistent” with that
of defendants who were granted a 30-to-40-percent sentence reduction, the court agreed
with the government that the investigations were ongoing, so the extent of Judge’s
assistance could not be valued as though the investigations were complete. Accordingly,
the court granted Judge a 25% reduction, which is best interpreted as the court’s estimate
of the value of the assistance that Judge had provided up to that point. This was a
reasonable assessment. The district court could have, for example, simply denied
Judge’s request altogether if it had completely agreed with the government and
concluded that it was too early to determine whether any of Judge’s assistance would
turn out to have value. See United States v. Rosenbaum, 585 F.3d 259, 265–66 (6th Cir.
2009).

To be sure, the district court would have erred had it given Judge a higher
sentence than he merited at the time of sentencing because of the possibility of future
cooperation and a future Rule 35(b) motion. But the record does not clearly reflect that
the district court committed such an error.5 The district court’s reference to the fact that
Judge’s assistance was incomplete was the reason that, while it was “consistent with”
assistance that merited greater reductions, it was not the same as the completed
assistance provided in those cases and therefore did not merit the same reduction.

5
Indeed, the district court never even mentioned the possibility of a Rule 35(b) motion, which
distinguishes this case from Recla, upon which Judge relies. See Recla, 560 F.3d at 546–47.
No. 09-2624 United States v. Judge Page 13

Perhaps Judge will continue to cooperate with the government, and once he is finished,
the government will file a Rule 35(b) motion to credit him for the post-sentencing
cooperation. Perhaps not. In any case, as we interpret the record, we conclude that the
district court did not take into account those future possibilities when determining
Judge’s sentence.

IV

For the foregoing reasons, we AFFIRM the sentence of the district court.