United States v. Antoine Owens
437 F. App'x 436
6th Cir.
2011
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UNITED STATES оf America, Plaintiff-Appellee, v. Antoine OWENS, Defendant-Appellant.

No. 09-5381.

United States Court of Appeals, Sixth Circuit.

Sept. 1, 2011.

government‘s counsel argued this point at the Sentencing Hearing. The government argued that Gasaway‘s two prior fеlony convictions, one of which resulted in a guilty plea, was an indication of his experience with the criminal justice system. (R. 78 at 12.) In his Brief, Gasaway maintains that his only prior experienсe with entering guilty pleas was in state circuit court—he had no previous involvement with the federal system. (Appellant‘s Br., 15-16.)

This is a distinction without a difference. Appellant has pointed tо no cases that distinguish between state-court and federal-court experience. However, there are cases that stand for the opposite proposition—that there is no distinction between experience in state and federal courts. See, e.g.,

(considering state-court experience with the criminal-justice system);
(considering “extensive experience with pleading in state courts“). Gasaway‘s experience ‍‌‌‌‌​​‌‌‌‌​​‌​​​​‌‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌‌​​‌​​​​​‌‍with the criminal-justice system weighs against his motion to withdraw his guilty plea. See id.

7. Prejudice to the Government

The final factor—potential prejudicе to the government if the motion to withdraw is granted—was not discussed by the district court at Gasaway‘s Hearing. The government briefly mentioned it as a factor to be considered, but it did not state hоw it could be prejudiced. (R. 78 at 13.) Gasaway now argues that there was no prejudice to the government because, “it is difficult to conceive of any such prejudice to the rеscheduling of a case for trial when that case involved only a single incident of alleged drug trafficking and a handful of police officers as witnesses.” (Appellant‘s Br., 16.) This may be true, but it dоes not establish a fair and just reason for allowing the withdrawal. “The government is not required to establish prejudice that would result from a plea withdrawal, unless and until the defendant advances and establishes a fair and just reason for allowing the withdrawal.”

(internal quotations omitted) (quoting
). Here, because all the preceding factors either weigh against Gasaway, or are neutral at best, the government is not required to show that it would be prejudiced by withdrawal of the plea. See id.

8. Summary

Because all factors are either neutral or weigh against Gasaway, the district court did not abusе its discretion in denying Gasaway‘s motion to withdraw his guilty plea. Gasaway failed to show a fair and just reason why the district court should have granted his motion.

CONCLUSION

For the aforementioned reasons, we AFFIRM the judgment of the district court.

Before: COLE, ROGERS, and GRIFFIN, Circuit Judges.

OPINION

COLE, Circuit Judge.

Defendant-Appellant Antoine Owens appeals his 63-month sentence imposed by the district court following his guilty plea to one count of conspiracy to violate civil rights under 18 U.S.C. § 241. On appeal, Owens contends that the district court‘s determination that Owens played more than a minor role in ‍‌‌‌‌​​‌‌‌‌​​‌​​​​‌‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌‌​​‌​​​​​‌‍the offense was clearly erroneous and that the district court erred by failing to make factual findings under Federal Rule of Criminal Procedure 32. Because the district court did not err in either respect, we AFFIRM.

I.

In October or November of 2004, Arthur Sease, a Memphis police officer, called and asked Antoine Owens, a fellow officer, to stop a black truck containing drugs and money in a Walgreens parking lot. Sease offered Owens money in exchange for the stop and Owens agreed. Once at the Wаlgreens, Owens called Sease and asked him to meet him there. After Sease and a third officer, Alexander Johnson, arrived, Owens pulled over the truck. Next, the officers removed thrеe males from the truck and searched them. Owens confiscated between $600 and $700 from one of the individuals. Owens put the three men and the money in his squad car. After searching the truck, Sease confiscated one half of a kilogram of cocaine he found in another vehicle in the parking lot. Sease instructed Owens to take one of the men to a neаrby car wash, where Sease was to meet Owens and ask the man some questions. Afterwards, Owens, Sease, and Johnson met at a baseball field where Sease paid Owens $500 for his assistanсe and Owens split the cash he had confiscated between the three officers.

Owens pleaded guilty to one count of conspiracy to violate civil rights in violation of 18 U.S.C. § 241. The district court calculated Owens‘s total adjusted offense level at 29 and found him to be in criminal history category I, resulting in a United States Sentencing Guidelines (“U.S.S.G.” or “guidelines“) range of 87 to 108 months. Owens moved for a two-level minor-participant adjustment, which would have reduced his guidelines range to 70 to 87 months. The district court denied Owens‘s motion, stating that ‍‌‌‌‌​​‌‌‌‌​​‌​​​​‌‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌‌​​‌​​​​​‌‍Owens was a “regular participant in this activity ... not minimal or minor.” (Sentencing Hr‘g Tr., Dist. Ct. Docket No. 468, at 18.) However, the district court did grant the government‘s motion for a departure under § 5K1.1 for substantial assistance to authorities. Deрarting 24 months below the bottom of the guidelines range, the district court sentenced Owens to 63 months of imprisonment. Owens appealed.

II.

Owens‘s primary argument on appeal is that the district court erred in denying his motion for a mitigating role adjustment. Section 3B1.2(b) of the guidelines directs courts to reduce a defendant‘s offense level by two levels if the defendant “was a minor рarticipant in any criminal activity.” We have explained that “[t]he ‘minor participant’ reduction is available only to a party who is ‘less culpable than most other partiсipants’ and ‘substantially less culpable than the average participant.‘”

(quoting U.S.S.G § 3B1.2, cmt. n. 3). We review “‘a district court‘s denial of a mitigating role adjustment to a defendant‘s offense levеl for clear error.‘”
(quoting
).

Owens argues that “[n]othing in the record suggests that [he] was part of a long term scheme to violate civil rights ... [and that] he had a relatively minor role to play in the over all [sic] offense encompassed by the 50 count superseding indictment.” (Owens‘s Br. 20.) In cases of conspiracy, however, defendants are not entitled to a minor participаnt reduction simply because they were “minor participants ... in the conspiracy as a whole“; rather, the “salient issue is the role the defendant played in ... the activity for which the court held him or her accountable.”

(internal citations and quotation marks omitted). In this case, Owens may have been a minor participant in the larger conspiracy as а whole, but he did not play a minor role in the robbery at the Walgreens parking lot for which the district court held him accountable.

Owens contends that his actions required no “speciаl skills” and that he was an expendable part of the operation. That the actions performed by Owens were not particularly difficult is irrelevant. Owens stopped the black truck, searched the victims, confiscated hundreds of dollars in cash from the victims, put the victims in his squad car, transported ‍‌‌‌‌​​‌‌‌‌​​‌​​​​‌‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌‌​​‌​​​​​‌‍one of the them to a car wash, and subsequently divided the money he sеized with his co-conspirators. Although Sease may have been able to recruit another person to perform these acts or to even perform them himself, it was Owens who аctually carried them out. Thus, it cannot be said that Owens was “less culpable” than the other two officers. See

. Accordingly, the district court did not clearly err in denying Owens‘s motion for a minor rolе adjustment.

Next, Owens argues that Federal Rule of Criminal Procedure 32(i)(3) required the district court to make factual findings in support of its denial of Owens‘s § 3B1.2 motion, and that the district court failed to do so. “We review the district court‘s compliance with Federal Rule of Criminal Procedure 32(i) de novo.”

. Rule 32 provides, in relevant part, that:

At sentencing, the court:

(A) may accept any undisputed portion of the presentence report as a finding of fact;

(B) must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentеncing, or because the court will not consider the matter in sentencing; and

(C) must append a copy of the court‘s determinations under this rule to any ‍‌‌‌‌​​‌‌‌‌​​‌​​​​‌‌​‌‌​​​‌​‌‌‌​‌​‌‌​‌‌‌​​‌​​​​​‌‍copy of the presentence report made available to the Bureau of Prisons.

Fed.R.Crim.P. 32(i)(3). Owens claims that accepting the facts provided in the presentence report is insufficient because the report only provided a conclusory statement regarding Owens‘s role in the offense. But this argument ignores the more detailed description of the Walgreens robbery contained in the report. The district court read this portion of the report aloud at the sentencing hearing and confirmed with both the government and defense counsel that this was the relevant offense conduct. Furthermore, Owens agreed that the details contained in the report concerning his actions during the Walgreens robbery were accurate. As we have previously explained, “[w]e can find no reason to require a district court to make independent findings outside the PSR when the facts are undisputed.”

; see also
. Because there were no faсtual disputes related to the adjustment for the district court to resolve, the district court was free to “accept [the] undisputed portion of the presentence report as a finding of fact.” Fed.R.Crim.P. 32(i)(3)(A).

III.

For the reasons stated above, we AFFIRM Owens‘s sentence.

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