RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0103P (6th Cir.)
File Name: 00a0103p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 98-4087/4369
v.
>
BRETT L. HENDERSON
(98-4087), DAVID NELMS
Defendants-Appellants.
(98-4369),
1
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00098—George C. Smith, District Judge.
Submitted: March 8, 2000
Decided and Filed: March 23, 2000
Before: WELLFORD, SILER, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ON BRIEF: Brian E. Goldberg, DANA & PARISER,
Columbus, Ohio, William K. Fulmer, II, Erlanger, Kentucky,
1
2 United States v. Henderson, et al. Nos. 98-4087/4369
for Appellants. Robyn R. Jones, ASSISTANT UNITED
STATES ATTORNEY, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Brett Henderson
and David Nelms pled guilty to conspiring to import cocaine
in violation of 21 U.S.C. § 963. Both are appealing their
sentences, claiming that their criminal history categories
overstate the seriousness of their past conduct. Because of
this, they argue that the district court erred when it denied
their motions for a downward departure from the United
States Sentencing Guidelines. Henderson also argues that the
district court erred when it assessed him with three criminal
history points, pursuant to U.S.S.G. § 4A1.1(a), for serving a
sentence in excess of one year and one month for a past
robbery conviction. The district court rejected Henderson’s
and Nelms’s arguments and found that their criminal history
categories adequately reflected their numerous past
convictions. For the reasons set forth below, we AFFIRM
the judgment of the district court.
I. BACKGROUND
In the summer of 1996, two brothers, Mark and Gary
Seawell, developed an organization to import cocaine from
Belize and Mexico into Columbus, Ohio for distribution.
From the summer of 1996 through the summer of 1997, the
Seawells hired other individuals, including Brett Henderson,
to recruit couriers for them. A courier would travel to
Chetamul, Mexico and receive a pair of tennis shoes with a
half kilogram of cocaine concealed in the sole of each shoe.
Upon receiving the shoes, a courier would place them on his
feet and wear them back to Columbus. Henderson and the
other recruiters would pick up the cocaine from their
respective couriers and deliver it to Gary Seawell for
distribution.
10 United States v. Henderson, et al. Nos. 98-4087/4369 Nos. 98-4087/4369 United States v. Henderson, et al. 3
category that Henderson received with nine points. Thus, Nelms was involved in a cocaine shipment for the Seawells
even if Henderson’s argument had merit, the applicable in August of 1997. Instead of having couriers bring the drugs
guideline sentencing range would have remained the same. back in their tennis shoes, this particular shipment was sent by
mail from Belize to Columbus. The United States Customs
III. CONCLUSION Service, however, intercepted this shipment and made a
controlled delivery to one of Nelms’s co-conspirators. Gary
For all of the reasons set forth above, we AFFIRM the Seawell then instructed this co-conspirator to give the cocaine
judgment of the district court. to another co-conspirator named Richard Meighan. When
Meighan arrived to pick up the package of cocaine, Nelms
was with him. Upon being approached by the police, Nelms
fled. Nelms was ultimately arrested. The box in which the
cocaine had been shipped was recovered from the location
where Nelms had attempted to hide it during the chase.
Subsequent investigation further revealed that Nelms had
distributed cocaine for the Seawells in the past and was
expecting to receive a portion of the cocaine delivered in the
August shipment.
Shortly thereafter, Henderson and Nelms were indicted on
numerous drug charges. On December 24, 1997, pursuant to
separate plea agreements, they each pled guilty to conspiring
to import cocaine in violation of 21 U.S.C. § 963. Prior to
sentencing, the government filed motions, pursuant to
U.S.S.G. 5K1.1, seeking downward departures for both
Henderson and Nelms based on their assistance in the
investigation of their co-conspirators. Because Henderson
had provided more assistance than Nelms, the government
recommended that the district court depart four offense levels
for Henderson and three offense levels for Nelms. The
district court granted the government’s motion and departed
accordingly.
In determining Henderson’s sentence, the district court
pointed out that he had twelve convictions as an adult. All of
them were not included in Henderson’s criminal history
computation due to the length of time that had passed since
some of them had occurred. Those that were utilized for
purposes of the computation included a conviction for
operating a motor vehicle while under the influence (OMVI)
in 1987, a robbery conviction in 1990, OMVI convictions in
4 United States v. Henderson, et al. Nos. 98-4087/4369 Nos. 98-4087/4369 United States v. Henderson, et al. 9
1993 and 1995, a conviction for driving under a suspended Now, according to 4A1.1(a), three points are added for
license in 1995, disorderly conduct convictions in 1996 and each prior sentence of imprisonment exceeding one year
1997, and a negligent assault conviction in 1997. Henderson and one month. On May 30th of 1990, the defendant was
received a total of nine criminal history points that resulted in sentenced to 3-15 years of imprisonment for robbery. On
a criminal history category of IV for purposes of sentencing. November 27th of 1991, the defendant received shock
These nine points were derived by assessing Henderson three probation. This term of imprisonment clearly fulfills the
criminal history points for the 1990 robbery conviction, see criteria for a three-point enhancement under 4A1.1(a).
U.S.S.G. § 4Al.1(a), four points for the other numerous Therefore, the Court finds that the defendant is deserving
convictions that he had, see U.S.S.G. § 4A1.1(c), and two of the three criminal history points pursuant to that
points for committing the instant offense while on probation, section.
see U.S.S.G. § 4A1.1(d).
As pointed out by the district court, three points are added for
Henderson made several objections to his criminal history each prior sentence of imprisonment exceeding one year and
calculation. One of his primary contentions was that his one month. See U.S.S.G. § 4A1.1(a). Henderson admits that
criminal history category overstates the seriousness of his past he served a sentence of one year and approximately six
conduct. In other words, because his past criminal history months for his 1990 robbery conviction. Consequently,
consists of a number of “minor” violations, Henderson argued § 4A1.1(a) is clearly applicable.
that his criminal history category exaggerates the significance
of his past conduct. His other main argument was that he Henderson, however, attempts to avoid the application of
should not receive the three point assessment for his 1990 § 4A1.1(a) by arguing that his sentence on the robbery
robbery conviction because of his unsupported contention that conviction would have been less than one year and one month
he was supposed to get “shock probation” after he had served had his defense lawyer in 1990 filed for “shock probation” in
only six months in prison. Shock probation is a term of art a more timely fashion. This argument, however, is unavailing
for early release that may be granted in the discretion of the because this circuit has held that “the federal sentencing
Ohio trial court. See Ohio v. Bistarkey, No. 90-CR-290, 1994 forum [is] not the proper forum for a constitutional challenge
WL 456473, *2 (Ohio Ct. App. Aug. 19, 1994); O.R.C. § to a prior conviction used to enhance a sentence.” Turner v.
2947.061. Because defendants are able to get out of prison United States, 183 F.3d 474 (6th Cir. 1999) (citing Custis v.
much sooner than under normal conditions, many state United States, 511 U.S. 485 (1994)).
defendants file motions for shock probation in Ohio.
Finally, even if the district court had accepted Henderson’s
The district court, however, concluded that Henderson’s argument and found that he should have served only six
criminal history category was not overstated and pointed out months for his robbery conviction instead of a year and six
that the plain language of § 4A1.1 mandated that the court months, such a finding would not have changed his overall
add three points for the robbery conviction. It then departed criminal history category. Under § 4A1.1(b), two points
downward four offense levels because of Henderson’s would have been assessed for the 1990 robbery conviction
assistance to the government, which was a 70-month because Henderson’s sentence would have exceeded sixty
reduction, and sentenced Henderson to 140 months of days. If two points are used instead of three, then
imprisonment, followed by a 5-year period of supervised Henderson’s total criminal history points would have been
release, and a $100 special assessment. Henderson timely eight instead of nine. Eight criminal history points, however,
filed a notice of appeal. still result in a criminal history category of IV, the same
8 United States v. Henderson, et al. Nos. 98-4087/4369 Nos. 98-4087/4369 United States v. Henderson, et al. 5
convictions. The Court finds that these convictions do With respect to Nelms’s sentence, his record includes
not produce a criminal history category which juvenile convictions for receiving stolen property and
significantly over represents the defendant’s criminal attempted drug abuse, neither of which were used in
history and are an accurate prediction of the defendant’s calculating his criminal history. As an adult, Nelms has a
likelihood to commit further crimes. So, therefore, no conviction for aggravated trafficking in drugs in 1991, four
downward departure is warranted. drug convictions between the span of 1992 to 1993, and a
drug abuse conviction in 1995. Nelms’s six drug convictions
In addressing a similar argument from Nelms, the district resulted in a criminal history score of thirteen under the
court further acknowledged its authority to depart downward: guidelines. He is also a “career offender” because, as an
adult, he had been convicted of two felony drug crimes prior
[I]f reliable information indicates that the defendant’s to his felony plea on the cocaine importation charge. See
criminal history category does not adequately reflect the U.S.S.G. 4B1.1. A total criminal history score of thirteen
seriousness of the defendant’s past criminal conduct or combined with his career offender status resulted in a criminal
the likelihood that the defendant will commit other history category of VI.
crimes, the Court may consider imposing a sentence and
departing from the otherwise applicable guideline range. At Nelms’s sentencing hearing, he argued that the offenses
The example might be two misdemeanors close to a 10- that made him a career offender were committed when he was
year prior instant offense. . . . The Court finds that a eighteen and nineteen years old and involved only a small
departure in this case is unwarranted and due to the amount of drugs. Thus, according to Nelms, his “prior history
constant violations and convictions that the defendant has [did] not accurately reflect the gravity of the career offender
had, that the departure is not applicable under 4A1.3 or status.” The district court, however, found that Nelms’s
any other paragraph of that report. criminal history category adequately reflected his past
conduct, especially considering the amount of violations that
Because the district court was clearly aware of its discretion he had committed. On the other hand, it did depart downward
to depart downward in both Henderson’s and Nelms’s cases, three levels on account of Nelms’s assistance to the
its informed decision not to depart is unreviewable. See government. This departure resulted in a thirteen month
United States v. Brown, 66 F.3d 124, 128 (6th Cir. 1995) reduction from the low end of Nelms’s original guideline
(“[A] lower court’s informed decision not to depart from a range and a sixty month reduction from the maximum
valid guideline range is not reviewable.”). possible sentence that he could have received. After the
departure, Nelms’s offense level was twenty-eight and his
C. The district court properly assessed three criminal criminal history category was VI, which resulted in a
history points for the sentence that Henderson sentencing range of 140 to 175 months. Nelms was sentenced
received relating to his robbery conviction to 175 months of imprisonment, followed by a 4-year period
of supervised release, and a $100 special assessment.
Henderson also argues that he should not have been Because Nelms ran from the arresting officers, attempted to
assessed three criminal history points for serving over one conceal evidence, and had a lengthy criminal history, he was
year and one month in prison for his robbery conviction. See sentenced at the high end of the guideline range. Nelms filed
U.S.S.G. § 4A1.1(a). In addressing that argument, the district a timely notice of appeal.
court concluded as follows:
6 United States v. Henderson, et al. Nos. 98-4087/4369 Nos. 98-4087/4369 United States v. Henderson, et al. 7
II. ANALYSIS “[u]nless a district court mistakenly believes that it lacks the
legal authority to depart below the guidelines range, this court
A. Standard of review may not review a district court’s decision not to depart.”);
United States v. Pruitt, 156 F.3d 638, 650 (6th Cir. 1998) (“A
Both Henderson and Nelms argue that the district court district court’s discretionary refusal to depart downward is
abused its discretion when it denied their motions for a generally not appealable, unless the district court mistakenly
downward departure. The government counters by arguing believed it did not have legal authority to depart downward.”).
that the district court did not abuse its discretion because it Consequently, the primary issue in the case before us is
was aware that it had the authority to depart downward. All whether the district court believed that it had the legal
of the parties cite Koon v.United States, 518 U.S. 81 (1996), authority to depart downward if it were to find that
for the proposition that we review a district court’s decision Henderson’s and Nelms’s criminal history categories
not to depart for an abuse of discretion. Koon, however, dealt overstated the seriousness of their past conduct.
with a district court’s affirmative decision to depart
downward, which is inapplicable to a district court’s decision Henderson also argues that the district court erred when it
not to depart from the sentencing guidelines. See United assessed him with three criminal history points for his 1990
States v. Brown, 98 F.3d 690 (2d Cir. 1996). robbery conviction. With respect to sentencing
determinations, we review a district court’s factual findings
In Brown, the Second Circuit addressed Koon’s under the “clearly erroneous” standard, and review its legal
applicability to a decision not to depart from the sentencing conclusions under the de novo standard. See United States v.
guidelines and held the following: Waldon, __ F.3d __, 2000 WL 178107, at * 9 (6th Cir. Feb.
17, 2000).
[I]t is well established in this Circuit that a court’s
decision not to depart from the Guidelines is not B. The district court made an informed decision not to
normally appealable. On appeal, however, Brown urges depart downward in both Henderson’s and Nelms’s
that the Supreme Court’s recent decision in Koon . . . cases, making those decisions unreviewable
requires that we apply an “abuse of discretion standard”
to a judge’s decision not to depart from a prescribed At Henderson’s sentencing hearing, the district court
Guidelines range. The Koon case, however, concerned commented as follows regarding Henderson’s argument that
the appropriate standard for reviewing a judge’s decision his criminal history category was overstated:
to depart. Because Koon did not involve a judge’s
decision not to depart, it does not affect the law of this Regarding the criminal history being overstated and
Circuit barring appeal where a district court decides not asking for a downward departure under 4A1.3, as you
to depart. have argued here and in your paperwork, in that it
consists of minor violations. Section 4A1.3 states that if
Id. at 692 (citations and parentheticals omitted). the defendant’s criminal history category significantly
over represents the seriousness of the defendant’s
We agree with the Second Circuit’s reasoning in Brown and criminal history or the likelihood that the defendant will
find that Koon does not alter this court’s precedent that commit future crimes, a downward departure may be
generally precludes appeals from decisions not to depart from appropriate. In the instant case, the defendant between
the guideline range. See United States v. Rudolph, 190 F.3d 1986 and 1997 had 12 convictions, some of which were
720, 722 (6th Cir. 1999) (holding, in a post-Koon case, that of a violent nature. They also included three OMVI