United States v. Powell

Filed: December 22, 2008

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4812
(5:06-cr-00299-FL)

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEORGE EUGENE POWELL, JR.,

Defendant - Appellant.

O R D E R

The court amends its opinion filed December 16, 2008, as

follows:

On page 4, the footnote number is changed from “*” to “1,” and

the citation in that footnote, line 4, is corrected to read “466

F.3d.”

On page 8, footnote 2 is added.

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4812

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEORGE EUGENE POWELL, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:06-cr-00299-FL)

Argued: October 30, 2008 Decided: December 16, 2008

Before WILKINSON, Circuit Judge, Samuel G. WILSON, United States
District Judge for the Western District of Virginia, sitting by
designation, and Henry E. HUDSON, United States District Judge
for the Eastern District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: James B. Craven, III, Durham, North Carolina, for
Appellant. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
George E. B. Holding, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

This case presents the narrow question of whether the U.S.

Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) permit a

sentencing court to award a third-level reduction for acceptance

of responsibility when a defendant’s offense level qualifies for

such reduction only after an upward departure. Although this

appears to be the first time this issue has been formally

addressed by a reviewing court, we are of the opinion that

Section 1B1.1 of the Guidelines clearly delineates the

methodology for computing a defendant’s advisory guidelines, and

specifies that eligibility for a third-level reduction for

acceptance of responsibility turns on whether a defendant’s

offense level exceeds 16 prior to departure or variance.

Pursuant to a written plea agreement, George Eugene Powell,

Jr. (“Powell”) entered a plea of guilty to a single count of

bank larceny. The underlying plea agreement specifically

provided that a three-level sentencing reduction was warranted

pursuant to U.S.S.G. Manual Section 3E1.1 for acceptance of

responsibility. Following acceptance of Powell’s plea, a U.S.

Probation Officer prepared a pre-sentence investigation report.

Relying on U.S.S.G. § 2B1.1(a)(2), pertaining to burglaries of

nonresidential structures, the probation officer calculated

Powell’s base offense level at 12. Despite the language of the

plea agreement, Powell received only a two-level reduction for
2
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a),

because his base offense level was less than 16. The resulting

total offense level was 10. Powell’s criminal history category

was VI, which yielded a guidelines range of 24 to 30 months of

imprisonment.

Based on Powell’s numerous uncounted prior convictions,

some of a similar nature to the charge of conviction, and

contending that Powell’s criminal history category inadequately

represented his criminal history and likelihood that he would

commit other crimes, the government moved for an upward

departure. Powell opposed the motion.

At the sentencing hearing, the court adopted the probation

officer’s calculation of Powell’s guidelines, finding a base

offense level of 12, with a two-point reduction for acceptance

of responsibility, and a total offense level of 10. Powell

offered no objection to the court’s preliminary findings.

The court next considered the government’s motion for an

upward departure, and ultimately departed upward by eight

offense levels to a final offense level of 18. This resulted in

a guidelines range of 57 to 71 months of imprisonment. The

court imposed a 71-month sentence. Powell does not challenge

the upward departure on appeal.

Following the upward departure, Powell urged the court to

revisit his entitlement to an additional reduction in his
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offense level for acceptance of responsibility pursuant to the

plea agreement. The government, however, declined the court’s

invitation to seek an additional level for acceptance of

responsibility. The government articulated two grounds for

opposing a third-level reduction. First, under the methodology

set forth in the Guidelines, the calculation of acceptance of

responsibility precedes the court’s consideration of any

departure motions. And second, the additional reduction was not

appropriate under the facts of this case. 1

Powell’s counsel stressed to the court that the plea

agreement clearly contemplated a third-level reduction.

Following the government’s refusal to move for such reduction,

the court imposed a 71-month sentence without further comment.

At no time did Powell seek specific enforcement of the plea

agreement or request leave of court to withdraw his plea of

guilty. This appeal followed.

Powell frames the issue on appeal as a single issue:

“[w]as the District Court in error in not allowing an additional

one level reduction for acceptance of responsibility under

1
Although neither side raised the issue, we note that a
third-level adjustment for acceptance of responsibility can only
be granted upon formal motion by the government at the time of
sentencing. United States v. Chase, 466 F.3d 310, 315 (4th Cir.
2006).

4
Section 3E1.1(b), Federal Sentencing Guidelines?” Candidly

conceding an absence of authority supporting his position,

Powell argues that the district court erred in failing to award

his requested third-level reduction for acceptance of

responsibility following the upward departure. He contends that

even though his initially calculated adjusted offense level was

less than 16, his total offense level exceeded 16 following the

upward departure. At that point, in his view, the court should

have reduced his offense level by a third point for acceptance

of responsibility, as dictated by the plea agreement. The

methodology urged by Powell is contrary to the Guidelines and

all interpretive cases.

Section 1B1.1 of the Guidelines specifically directs the

order in which its provisions are to be applied. Application of

the appropriate adjustment for acceptance of responsibility

occurs prior to any consideration of departures. U.S.S.G. §

1B1.1(e)(i). Under the prescribed order of calculation, the

sentencing guidelines range, including application of offense

level adjustments under U.S.S.G. § 1B1.1(b),(c), and (d), should

be completed before the determination of whether an upward

departure is appropriate. Because Powell’s offense level was

not 16 or more at that juncture, he did not meet the requirement

for a third-level reduction under U.S.S.G. § 3E1.1(b).

5
 Powell draws the Court’s attention to an unpublished

decision of this Court, United States v. Schellenberger, 246

Fed. Appx. 830 (4th Cir. 2007). Powell’s reliance on

Schellenberger, however, is misplaced. The court in

Schellenberger did not address the sequence of guidelines

calculations. Powell simply points out the computational

process employed by the sentencing court in Schellenberger. “A

presentence investigation report (“PSR”) established

Schellenberger’s base offense level at 17, and added 29 levels

to account for various sentencing factors. Three points were

then subtracted for acceptance of responsibility. This yielded

a total offense level of 43.” Id. at 832. The trial court in

Schellenberger appropriately enhanced the defendant’s base

offense level for specific offense characteristics outlined in

Chapter 2 of the Guidelines and adjustments related to victim,

role, and obstruction of justice from parts A, B, and C of

Chapter 3, before deducting three levels for acceptance of

responsibility. This faithfully tracks the general application

principles delineated in § 1B1.1 of the Guidelines. The product

of the trial court’s calculation in Schellenberger is

appropriately referred to as an adjusted offense level, which

precedes any determination of whether a departure is warranted.

This Court has repeatedly counseled trial courts in

sentencing a defendant to first properly calculate the
6
sentencing range recommended by the Guidelines, next to

determine whether an upward or downward departure is

appropriate, and lastly, to decide whether a sentence within

that range, and within statutory limits, serves the factors set

forth in 18 U.S.C. § 3553(a). See United States v. Moreland,

437 F.3d 424, 432 (4th Cir. 2006). That procedure was

meticulously followed by the trial court in the immediate case

at hand.

Although he neither framed it as a separate issue for

appeal nor raised it in the district court, Powell argues that

the government breached the plea agreement by failing to move

for the additional level of reduction for acceptance of

responsibility. On close examination, the plea agreement does

not obligate the government to move for a three-level reduction

for acceptance of responsibility. The plea agreement stated

that “[a] downward adjustment of 3 levels for acceptance of

responsibility is warranted under U.S.S.G. §3E1.1.” (J.A., at

20.) Agreement notwithstanding, the court was powerless to

award the third level under U.S.S.G. § 3E1.1(b) when the base

offense level was 12. Therefore, even if the United States had

moved for a third-level reduction, the trial court lacked the

power to grant the request. Consequently, this element of the

plea agreement was unenforceable. In any event, Powell did not

seek in the district court, and does not seek here, to withdraw
7
his guilty plea, but instead requests that we vacate the

judgment and remand to the district court for resentencing “with

an applicable advisory Guideline range of 51–63 months.” We are

not at liberty to direct the district court to sentence within

an inapplicable guideline range. 2

Finding no error in calculating the sentencing guidelines,

the district court’s judgment is, therefore,

AFFIRMED.

2
Even if we were to determine that Powell has properly
raised the issue that the government breached its plea agreement
by declining to move the district court for an additional
reduction for acceptance of responsibility, our review would be
for plain error because he failed to raise this issue in the
district court. United States v. McQueen, 108 F.3d 64, 65-66
(4th Cir. 1997).

8