United States v. Massey, 2011 U.S. App. LEXIS 24870

Massey pleaded guilty to conspiracy to manufacture, possess and distribute 500g+ of methamphetamine; district court imposed 324 months' imprisonment with 10 years' supervised release and restitution.
Fire at Massey-linked meth lab in a Kalamazoo basement; Massey and co-conspirators allegedly cooked meth and caused two fires.
Indictment on three counts; Count One charged conspiracy with Homan, Jones, Parrish, and Branch; Counts Two and Three charged attempts to manufacture 50g+.
Plea agreement reserved government’s potential 5K1.1 or Rule 35 motions for cooperation; probation calculated guidelines range at 324–405 months.
Sentencing hearing held; government stated no current 5K1.1 motion but possible future Rule 35; Massey sought variance for cooperation; court denied variance without government motion.
Appeal follows challenging procedural and substantive reasonableness of the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court procedurally erred by not departing based on Massey’s cooperation without a 5K1.1 motion.	Massey relied on cooperation; government had not filed 5K1.1.	Court could consider cooperation as a §3553(a) factor even without a 5K1.1 motion.	Procedural reasonableness affirmed; court did not err in considering cooperation without a 5K1.1 motion.
Whether the sentence is procedurally and substantively reasonable under the guidelines and 3553(a).	Sentence within Guidelines; argues recency points inflate criminal history.	Disagrees with recency points and potential for policy disagreement with guidelines.	Sentence substantively reasonable; recency points properly applied; within-guidelines sentence presumed reasonable.
Whether the application of recency points under § 4A1.1(e) should be retroactively applied or prospectively considered.	2010 amendment removes recency points; argues different history calculation.	Goes to policy, not retroactivity; sentencing uses guidelines in effect at sentencing.	No retroactive application; proper under the law in effect at sentencing.

Gall v. United States, 552 U.S. 38 (U.S. 2007) (standard for procedural and substantive review of sentences)
United States v. Blue, 557 F.3d 682 (6th Cir. 2009) (procedural reasonableness and factors under 18 U.S.C. § 3553(a))
United States v. Rosenbaum, 585 F.3d 259 (6th Cir. 2009) (abuse-of-discretion review and 5K1.1/variance distinctions)
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (forfeiture rule applying plain error review to sentencing discretion)
United States v. McIntosh, 484 F.3d 832 (6th Cir. 2007) (departure below minimum requires government motion; 3553(a) limits)