United States v. David PenningtonUnited States v. David Pennington
Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.
COUNSEL
ARGUED: Stephen Ross Johnson, RITCHIE, DAVIES, JOHNSON & STOVALL, P.C., Knoxville, Tennessee, for Appellant. John Patrick Grant, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF: Stephen Ross Johnson, Catalina L. C. Goodwin, RITCHIE, DAVIES, JOHNSON & STOVALL, P.C., Knoxville, Tennessee, for Appellant. John Patrick Grant, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
OPINION
KAREN NELSON MOORE, Circuit Judge. While facing charges for violating
I. BACKGROUND
A. CONSPIRACY TO ENGANGE IN HUMAN TRAFFICKING
On November 21, 2019, the grand jury indicted Defendant David Pennington, charging him with one count of violating
Whoever knowingly . . . in or affecting interstate or foreign commerce . . . recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person . . . knowing, or . . . in reckless disregard of the fact, that means of force, threats of force, fraud, coercion
described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act . . . shall be punished as provided in subsection (b).
“[I]f the offense was effected by means of force, threats of force, fraud, or coercion,”
According to the indictment, the conspiracy ran from around September 2015 through October 2019. R. 51 (First Superseding Indictment at 1–2) (Page ID #207–08). In essence, Logan Ray Towery and numerous other individuals ran overlapping human-trafficking and drug-distribution operations. R. 539 (PSR ¶ 7) (Page ID #2762). The government alleged that Pennington “knew his neighbor Logan Ray Towery to prostitute young women” and that Pennington “paid several young women for sexual acts.” R. 579 (Rearraignment Proceeding Hr’g Tr. at 31) (Page ID #3051).
B. WITNESSES TAMPERING
A magistrate judge granted Pennington pretrial release as he awaited trial for his
In light of this conduct, on September 22, 2021, the government charged Pennington with witness tampering, in violation of
C. SENTENCING
Ahead of Pennington’s sentencing hearing for his witness-tampering conviction, the U.S. Probation Office filed a presentence investigation report (“PSR“). R. 539 (PSR) (Page ID #2759–88). The PSR identified a base-offense level of twenty-eight. Id. ¶ 79 (Page ID #2774). As elaborated upon below, the PSR arrived at twenty-eight by cross-referencing among multiple guidelines to reach U.S.S.G. § 2G1.1, the guideline that applies to certain types of human trafficking. Id. The PSR applied the higher of U.S.S.G. § 2G1.1(a)’s two alternative base-offense levels. See id. Guideline § 2G1.1(a)’s higher base-offense level of thirty-four is to be used “if the offense of conviction is
Pennington filed comments and requests for corrections to the PSR. R. 539 (PSR at 25–30) (Page ID #2783–88). According to the addendum to the PSR, Pennington’s counsel “advised there are no objections to the presentence report that impact the guidelines calculation.” Id. at 25 (Page ID #2783). His counsel conveyed to the probation officer that Pennington “emphasized and maintains his position that he was not criminally involved with Towery’s human trafficking organization,” and that he “fully acknowledges having sex with Towery’s victims but denies any criminal responsibility for human trafficking.” Id. Counsel filed a correction addressing this point. Id. at 29–30 (Page ID #2787–88). In response to the request for correction, the two addenda to the PSR stated that the “report does not hold Pennington responsible for being convicted of human trafficking.” Id. at 25, 27 (Page ID #2783, 2785).
At sentencing, the district court used the same Guidelines calculation and range contained in the PSR. R. 571 (Sentencing Hr’g Tr. at 9) (Page ID #2954). The district court explained that it “beg[a]n at a base offense level of a 28, and that’s under [§] 2[G1].1(a)(1),2 which is the human trafficking offense less six points,” and then subtracted three for acceptance of responsibility, to arrive at a total-offense level of twenty-five. Id. It explained that this placed Pennington within a Guidelines range of fifty-seven to seventy-one months of imprisonment. Id. at 10 (Page ID #2955). The district court then asked Pennington’s counsel if they had “any objections
The district court sentenced Pennington to twenty-nine months of incarceration with credit for the eighteen months that Pennington had already spent incarcerated, and a two-year term of supervised release. See id. at 36–37, 42–43 (Page ID #2981–82, 2987–88). After announcing the sentence, pursuant to United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), the district court asked defendant’s counsel whether “there [were] any objections to the sentence that [it] just announced or the special conditions imposed that have not been previously raised“; Pennington’s counsel responded “No.” Id. at 45 (Page ID #2990). The district court then entered judgment. R. 534 (Judgment) (Page ID #2736–42). Pennington completed his incarceration term in September 2022 and is currently serving his two-year term of supervised release. Appellant Br. at 2.
Pennington now appeals his sentence as procedurally and substantively unreasonable. Pennington argues that his sentence is procedurally unreasonable because the district court improperly applied U.S.S.G. § 2G1.1(a)(1)—a subsection of a guideline that expressly requires a conviction under
II. JURISDICTION
We have jurisdiction over this appeal despite the fact that Pennington has completed his custodial sentence. “[A] completed custodial sentence may be appealed so long as the district court would retain the discretion to reduce the sentence of supervised release on remand.” United States v. Albaadani, 863 F.3d 496, 502–03 (6th Cir. 2017) (quoting United States v. Solano-Rosales, 781 F.3d 345, 355 (6th Cir. 2015)). As the government acknowledges, Gov’t Br. at 12–13 n.3; Oral Arg. at 11:32–11:41, 12:10-12:33, because Pennington faced no minimum term of supervised release, the district court would have discretion to reduce Pennington’s sentence. See Albaadani, 863 F.3d at 502–03; Solano-Rosales, 781 F.3d at 355 (finding no mootness where “there is no minimum supervised release term [thus allowing] . . . the district court [to] retain the discretion to reduce or eliminate Defendant’s supervised release term“). Therefore, Pennington’s subsequent release from prison in September 2022 does not moot this appeal because his supervised-release term is ongoing.
III. PROCEDURAL REASONABLENESS
Our appellate review of a defendant’s sentence considers “a district
Pennington also brings a substantive-reasonableness challenge. “[W]e typically first address the procedural reasonableness of a sentence and do not analyze its substantive reasonableness unless the sentence is ‘procedurally sound.’” United States v. Adams, 873 F.3d 512, 520 (6th Cir. 2017) (quoting Bolds, 511 F.3d at 581). Because Pennington’s sentence is procedurally unreasonable, we do not address his substantive-reasonableness claim.
A. STANDARD OF REVIEW
Generally, we conduct our reasonableness review for both the substantive and procedural components using the abuse-of-discretion standard. Gall, 552 U.S. at 51; United States v. Nunley, 29 F.4th 824, 830 (6th Cir. 2022). Although substantive-reasonableness claims do not need to be raised before the district court to be preserved, we do not apply an abuse-of-discretion review to unpreserved procedural-reasonableness claims. United States v. Penson, 526 F.3d 331, 337 (6th Cir. 2008). We instead review unpreserved procedural-reasonableness claims for plain error. Id. “A plain error is an error that is clear or obvious, and if it affects substantial rights, it may be noticed by an appellate court.” United States v. Hatcher, 947 F.3d 383, 389 (6th Cir. 2020) (internal quotation marks omitted) (quoting United States v. Barajas–Nunez, 91 F.3d 826, 830 (6th Cir. 1996)). For a defendant to prevail under plain-error review, they “must show an error that was ‘obvious or clear,’ that affected his substantial rights and that this adverse impact seriously ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’” United States v. Fuller-Ragland, 931 F.3d 456, 459 (6th Cir. 2019) (quoting United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)).
The parties vigorously dispute whether Pennington objected to the district court’s Guidelines calculation and therefore dispute the proper standard of review. Appellant Br. at 22–23; Gov’t Br. at 8. Fortunately, we need not resolve this
Second, Pennington would prevail under either an abuse-of-discretion or plain-error standard. That is because, “[g]enerally, a district court plainly errs when it miscalculates the Guidelines range.” United States v. Honeysucker, No. 21-2614, 2023 WL 142265, at *8 (6th Cir. Jan. 10, 2023); United States v. McCloud, 730 F.3d 600, 603 (6th Cir. 2013). This is true even when a district court sentences someone below an erroneously calculated Guidelines range and within the properly calculated Guidelines range. United States v. Nicolescu, 17 F.4th 706, 730–31, 731 n.9 (6th Cir. 2021), cert. denied, 142 S. Ct. 1458 (2022), and cert. denied sub nom. Miclaus v. United States, 143 S. Ct. 523 (2022). As Nicolescu explained, “‘the Guidelines range is the starting point for the district court’s analysis[,]’ and absent some indication that the district court would have imposed the same sentence regardless of the error, it is for the district court to ‘decide whether, starting from the correct Guidelines range, a downward variance remains appropriate.’” Id. at 731 (alteration in original) (quoting United States v. Montgomery, 998 F.3d 693, 700 (6th Cir. 2021)). Therefore, such an error is not harmless and “even under plain-error review, [a defendant] is entitled to resentencing under a correctly calculated Guidelines range because the error [is] clear, it affect[s their] substantial rights, and it affect[s] the fairness of the proceedings below.” Id. at 731 n.9.
B. USING U.S.S.G § 2G1.1(A)(1)’S BASE-OFFENSE LEVEL WITHOUT A CONVICTION UNDER 18 U.S.C. § 1591(B)(1)
“In construing the Guidelines, we employ the traditional tools of statutory interpretation, beginning with the text’s plain meaning.” United States v. Hollon, 948 F.3d 753, 757 (6th Cir. 2020) (quoting United States v. Babcock, 753 F.3d 587, 591 (6th Cir. 2014)). We must therefore “follow the clear, unambiguous language if there is no manifestation of a contrary intent.” United States v. Oliver, 919 F.3d 393, 400 (6th Cir. 2019) (quoting United States v. Hayter Oil Co., 51 F.3d 1265, 1272 (6th Cir. 1995)). The Guideline’s plain meaning is conclusive “except in the rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” Id. (internal quotation marks omitted) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989)). The Guideline’s commentary “serves only to interpret the Guidelines’ text, not to replace or modify it.” United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam).
We begin with the relevant guidelines. Pennington was convicted of witness tampering, in violation of
Next, based on the circumstances of this case and following U.S.S.G. § 2J1.2(c)(1), our step two requires applying U.S.S.G. § 2X3.1. Guideline § 2X3.1 supplies a base-offense level of “6 levels lower than the offense level for the underlying offense,” subject to minimum and maximum base-offense levels. U.S.S.G. § 2X3.1(a)(1) (emphasis added); see also id. § 2X3.1(a)(2)–(3). We must therefore determine which offense Pennington obstructed, find the appropriate guideline for that offense, use that guideline’s base-offense level, and then subtract six. Id. § 2X3.1(a)(1). Here, because Pennington tampered with witnesses in relation to his
Neither step one nor step two is contested. Our caselaw is clear that the district court properly followed U.S.S.G. § 2J1.2(c)(1)’s instruction to apply U.S.S.G. § 2X3.1 (Accessory After the Fact)’s cross-reference to determine Pennington’s base-offense level—regardless of whether he had been convicted of human trafficking in violation of
Guideline § 2G1.1(a) offers two very different possible base-offense levels depending on the existence of a specific criterion:
- 34, if the offense of conviction is
18 U.S.C. § 1591(b)(1) ; or - 14, otherwise.
We must therefore decide whether the district court correctly used subsection (a)(1)’s base-offense level of thirty-four given that this subsection expressly references a conviction under
We find the answer to be apparent from the text and structure of the Guidelines. Some “guideline[s] (in the base offense level or in a specific offense characteristic) may expressly direct that a particular factor be applied only if the defendant was convicted of a particular statute.” U.S.S.G. § 1B1.3 cmt. 7 (emphasis added). Other guidelines do not. See id. The latter instead provide a specific base-offense level using language such as, “if the offense involved conduct described in” a particular statute. See id. (emphasis added) (quoting U.S.S.G. § 2A3.4(a)(2)). Guideline § 1B1.3’s comment seven tells us how to approach these two different types of guidelines. “Unless such an express direction is included, conviction under the statute is not required. Thus, use of a statutory reference to describe a particular set of circumstances does not require a conviction under the referenced statute.” Id. The comment provides examples: U.S.S.G. § 2A3.4(a)(2), which provides a certain base-offense level “‘if the offense involved conduct described in
Guideline § 2G1.1(a)(1)’s express direction to use a base-offense level of “34, if the offense of conviction is
We are not the first panel to recognize this plain reading of the Guidelines. See Nicolescu, 17 F.4th at 730; cf. United States v. Nedelcu, 46 F.4th 446, 450 (6th Cir. 2022). Nicolescu found that the district court erred when it applied a guideline enhancement that required a conviction under
The two guidelines that could permit us to treat Pennington as if he were convicted of violating
For example, § 2S1.1(b)(2)(B) (which is applicable only if the defendant is convicted under
18 U.S.C. § 1956 ) would be applied in determining the offense level under § 2X3.1 (Accessory After the Fact) in a case in which the defendant was convicted of accessory after the fact to a violation of18 U.S.C. § 1956 . . . .
U.S.S.G. § 1B1.3 cmt. 7. Pennington has cited a few cases in which courts have considered applying U.S.S.G. § 2G1.1(a)(1) when a defendant has been convicted of conspiring to violate
Second, when faced with a similar situation in which a district court sentenced a defendant under a guideline that required a conviction for violating a specific statute that the defendant had not been convicted under, we found that U.S.S.G. § 1B1.2(c)
We reasoned that U.S.S.G. § 1B1.2(c) required us to treat Nedelcu as if he had been convicted of violating
The government, however, has never argued that U.S.S.G. § 1B1.2(c) applies here. It declined to engage in argument on this point even though Pennington argued in his opening brief that U.S.S.G. § 1B1.2(c) did not apply. Appellant Br. at 27–28; see generally Gov’t Br. In fact, the government even acknowledged in its brief that “Pennington challenges his base offense level because he did not agree in the plea agreement that he committed human trafficking“—yet it never refuted Pennington’s claim or argued that the facts in Pennington’s plea agreement sufficiently supported each element of
Even so, Pennington’s plea agreement fails to address all of the requisite elements of
We of course acknowledge that the obstruction guideline anticipates a series of cross-references that may hold a defendant accountable for conduct that did not result in a conviction. See U.S.S.G. § 2J1.2(c)(1) (instructing courts to cross reference when a defendant has obstructed a criminal investigation or prosecution); id. at background cmt.; Kimble, 305 F.3d at 485–86. Our plain reading of the Guidelines is consistent with § 2J1.2(c)(1)’s context. We abide by § 2J1.2(c)(1)’s instruction and context by deriving Pennington’s base-offense level from a human-trafficking guideline, § 2G1.1—despite the fact that he was not convicted of any sort of human-trafficking offense. It is at this point, however, that we encounter a textual condition that the present circumstances cannot satisfy. And nothing in § 2J1.2 affords us permission to ignore an express requirement contained in the text of the specific guideline that we are ultimately applying. Additionally, speaking directly to the conduct–conviction distinction, U.S.S.G. § 1B1.3’s comment seven lists which types of convictions we can treat as a conviction for the substantive offense when a guideline contains “an express direction to apply a particular factor only if the defendant was convicted of a particular statute.” U.S.S.G. § 1B1.3 cmt. 7. It lists the following types of convictions: “convict[ions] of conspiracy, attempt, solicitation, aiding or abetting, accessory after the fact, or misprision of felony in respect to that particular statute.” Id. Excluded from this list is an instruction to treat a conviction for witness tampering or obstruction as a conviction of the offense that the defendant tampered with or obstructed.
Ultimately, a straightforward application of statutory interpretation answers the question before us. We hold that because Pennington has not been convicted of violating
We further hold that the district court plainly erred by misinterpreting and miscalculating the Guidelines. See Nicolescu, 17 F.4th at 730–31, 731 n.9 (holding that the district court plainly erred when it applied an enhancement incorrectly even though the district court sentenced the
Finally, the fact that what remains of Pennington’s sentence is only his term of supervised release does not bar a finding of plain error. See United States v. Inman, 666 F.3d 1001, 1006–07 (6th Cir. 2012) (per curiam). The government argues that reducing Pennington’s sentence “would provide him no benefit” and would not correct a miscarriage of justice, Gov’t Br. at 13, because Pennington has “completed his imprisonment term,” id. at 12. But this argument fails for the same reason the case is not moot. On resentencing, the district court retains discretion to reduce his sentence of supervised release if it finds that Pennington served more prison time than necessary. The Guidelines’ miscalculation constitutes plain error.
IV. CONCLUSION
For the foregoing reasons, we VACATE Pennington’s sentence and REMAND for resentencing. As Pennington has served the full term of his incarceration sentence, the district court should employ the new Guidelines’ calculation mandated by this opinion with an eye toward determining Pennington’s term of supervised release.