United States v. Lewis Powell, II
798 F.3d 431
| 6th Cir. | 2015Background
- Powell pleaded guilty in 2014 to federal conspiracy to distribute heroin and crack (Count 1) and to being an unlicensed firearms dealer (Count 8) under a written plea agreement that waived most appeals but preserved (1) challenges to sentences above the properly calculated Guidelines range, (2) punishments above statutory maximums, and (3) challenges to the district court’s Criminal History Category.
- The plea agreement left Powell’s Criminal History Category and Guidelines calculation to the district court.
- At sentencing the district court designated Powell a career offender, placed him in Criminal History Category VI, set a base offense level of 34 (reduced to 29 after adjustments), and sentenced him to 155 months on Count 1 (concurrent 60 months on Count 8).
- Powell appealed, preserving only issues not covered by his appellate waiver; the Sixth Circuit first determined which claims the waiver allowed him to raise.
- The court held (1) Powell’s appellate waiver was valid and enforceable but ambiguous enough to permit challenge to the career-offender designation because that designation affects Criminal History Category, (2) the district court erred by treating an intervening summons/citation as an “intervening arrest” under U.S.S.G. § 4A1.2(a)(2), and (3) that error affected Powell’s offense level because the career-offender label eliminated eligibility for the DOJ “Drugs Minus Two” reduction, producing a higher Guidelines range.
- Because correcting the career-offender error reduces Powell’s offense level by three (not one) levels and yields a Guidelines range (120–150 months) that does not include the imposed 155-month sentence, the Court vacated the sentence and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Powell validly reserved right to challenge career-offender designation despite appellate waiver | Powell: waiver preserved right to challenge Criminal History Category and thus career-offender finding that affects it | Government: waiver did not preserve challenge to career-offender designation; Powell waived that issue | Court: waiver ambiguous; construed against government — Powell may challenge career-offender designation |
| Whether a summons/citation qualifies as an "intervening arrest" under U.S.S.G. § 4A1.2(a)(2) so prior sentences count separately | Powell: summons/citation is not an intervening arrest; related sentences should be counted as one | Government: summons/citation functions like an arrest; sentences properly counted separately | Court: adopts Ninth Circuit approach — "arrest" means formal arrest; summons is not an intervening arrest; district court erred |
| Whether the district-court error was harmless because Powell still had 13+ criminal-history points (Category VI) | Powell: PSR’s point total depended on same counting error; correct count reduces points and affects sentencing | Government: even without career-offender label, Powell’s points place him in Category VI, so error harmless | Court: corrected criminal-history score remains Category VI (15 points), so not outcome-determinative on category, but error affected offense level and eligibility for DOJ reduction, so not harmless |
| Whether remand for resentencing is required because career-offender error changed Guidelines range and sentence | Powell: career-offender error eliminated eligibility for Amendment 782/"Drugs Minus Two," increasing offense level; resentencing required | Government: sentence still within natural Guidelines; error harmless | Court: error reduced offense level by three when corrected; proper range (120–150) excludes the imposed 155-month sentence — vacated and remanded |
Key Cases Cited
- United States v. Smith, 344 F.3d 479 (6th Cir. 2003) (standards for reviewing validity of appellate waivers)
- United States v. McIntosh, 484 F.3d 832 (6th Cir. 2007) (ambiguities in plea agreements construed against government)
- United States v. Hazelwood, 398 F.3d 792 (6th Cir. 2005) (harmless error principles at sentencing)
- United States v. Morgan, 354 F.3d 621 (7th Cir. 2003) (treating citation as functional equivalent of arrest for Guidelines calculation)
- United States v. Leal-Felix, 665 F.3d 1037 (9th Cir. 2011) (en banc) (narrow "arrest" to formal arrests; citation/summons not an intervening arrest)
- United States v. Charles, 581 F.3d 927 (9th Cir. 2009) (preserving right to challenge criminal-history category can preserve career-offender challenges)