United States v. Grant

GIBBONS, Circuit Judges.

MERRITT, J., delivered the opinion of court, KEITH, J., joined. which GIBBONS, 784-87), (pp. J. delivered a separate dissenting opinion.

OPINION

MERRITT, Judge. Circuit

This ques- raises the tion of what factors a district deciding consider when a motion to reduce pursuant a sentence to Federal Rule of Criminal Procedure which allows the sentencing judge to reduce a sentence for substantial assistance to the by the defendant. Defendant Kevin Grant pleaded guilty to several crimes related trafficking, heroin and was sentenced to 25 years’ imprisonment, manda- acceptance of re- statutory mandatory tracting points three tory minimum. A permit a sen- combining minimum does not sponsibility resultant all of the tencing judge fully Offense Level with a Criminal Histo- Total just for a normally V, ry Category Report concluded 3553(a). § Thus tence under U.S.C. range under the the recommended a has received sentence Grant never advisory was 324 to 405 months Guidelines required for a all of the factors considers continuing for the criminal and 3553(a), a including § just sentence under counts, money laundering to be followed un- greater necessary” “not than sentence by 60 months for the firearms count. (rehabilitation). 3553(a)(2)(D) § Sub- der a government pur- The then filed motion provided substantial assis- sequently, he § to suant to U.S.S.G. 5K1.1 reduce government in several other tance to provided because he had Grant’s sentence In filed a response, cases. It substantial assistance. recommended pursu- to reduce Grant’s sentence motion statutory minimum that Grant receive the ant to Rule and the District Court move, years, sentence of 25 but declined to years to 16 lowered his sentence from 3553(e), § for a sen- pursuant doing, In the court concluded years. so statutory minimum. tence below the The that the factor it could consider was that it government expected noted Grant substantial assis- degree of Grant’s provide post- to continue to substantial tance. hold that a district court is We assistance, that, so, if he conviction and did nor- permitted to consider other factors it would file a Rule motion to reduce just a mally required for sentence 3553(a), minimum, statutory § his sentence below the and therefore reverse and re- proceedings. years. mand for further Once the adopted to 16 The District Court mandatory minimum grip of the sentence this recommendation and sentenced Grant broken, judge may con- sentencing years’ imprisonment. appealed to 25 He (2)(D) 3553(a), including sider subsection sentence, argued his conviction and and on rehabilitation. that he had received ineffective assistance affirmed, holding of counsel. We that his Background I. supported by conviction was sufficient evi- 2004, government investigators In dis- dence, any alleged errors in his covered that Kevin Grant was involved in a harmless, Guidelines calculation were since Columbus, in heroin-trafficking operation minimum, he had received the 6, 2005, April pleaded Ohio. On Grant insufficiently and that the record was de- guilty running continuing a criminal en- veloped adjudicate his ineffective-assis- 848; terprise, in violation of Grant, tance claim. See States v. United in a engaging conspiracy money to commit Fed.Appx. laundering, violation of 18 U.S.C. 17, 2007, April government On filed 1956(h); a possessing firearm 35(b) motion, noting that most of offense, drug-trafficking furtherance of a cooperation, which it described as Grant’s 924(c)(l)(A)(i). in violation of 18 U.S.C. excellent, completed. In addi- had been stipulated to various government tion to the assistance that the Pre- plea agreement, facts contemplated had at the time of Grant’s Adjusted Report calculated his guilty plea, provided he had also substan- at represented Offense Level which tial in an unrelated state homi- assistance Base Offense Level of 38 under U.S.S.G. 2D1.5, testifying against cide case defendant plus money for laun- points two 2S1.1(b)(2)(B). prison. dering under After sub- who had confessed to Grant requested 9-year [continuing enterprise] reduc- tion, years. to 16 family background, defendant’s going is, all----All I’m say I am not response government’s going any arguments, to listen to now or 35(b) motion, Grant filed memorandum ever, regard with to sentences that have larger for a reduction than the argued been agreed upon and which have been requested. gave government had He six imposed. (1) further departure: reasons he provided more substantial assistance Transcript Proceedings 6-7, than had been contemplated the initial Grant, (S.D. States v. No. CR-2-04-161 deal; plea his firearm conviction could 2007). April Ohio After prosecu- two-point sentencing have been a enhance- tion clarified that Grant had never actually ment, separate charge rather than a with a agreed 9-year reduction and had five-year mandatory sentence; minimum always right maintained his to argue for a (3) the breadth of scope continuing his reduction, greater the court modified its enterprise criminal was less extensive than position slightly, but still reiterated its (4) enterprises; most such his criminal complete rejection of five of Grant’s six history category overrepresented his actu- arguments: (5) history; money al criminal launder- you’re The issues that referring to are ing conviction should have been subsumed 3553(a) guideline issues and Section is- continuing within his criminal enterprise sues that the Court entertains at the conviction; and the mother of two of time of sentencing, initially, not at the died, recently his children depriving Now, time of a Rule 35 you motion. if parent them of natural while he is incar- want to argue your assistance has sum, cerated. he offered one reason been over and above what everyone de- directly related to substantial assistance being fined as outset, substantial at the and five reasons related to the “nature and that, you argue then can and that’s a circumstances of the offense and the histo- argument, relevant I’m more than ry and characteristics of the defendant.” willing to listen to that.... But with 3553(a)(1). See 18 U.S.C. regard any guideline argument At the hearing, District Court re- of the other brought issues that were up jected out all of hand but the first of these memorandum, in the I will not listen to. arguments, saying that it would be im- Id. 10-11. proper even to consider them: After considering Grant’s substantial-as- today

The Court is not here talk in argument, sistance the District Court resentencing terms of and bringing up granted the government’s motion and two-point issues of the enhancement in- adopted recommendation, its reducing stead of a five-year charge. consecutive Grant’s sentence to 16 years. appeal This today The Court is not here to deter- followed. mine scope and breadth of the ... continuing —that II. Jurisdiction

not many as extensive as enter- [such The contends that and, therefore, prises] a lesser sentence court lacks to review Grant’s is warranted. The Court is not here to appeal. reduction of a sentence pur talk about or listen to whether the de- suant to Rule is “a history fendant’s criminal sentence” within was overre- 3742(a), presented money meaning laun- whether the such dering jurisdictional count should be subsumed within that limitations of that 780 adopts. which the dissent position, v. Mor- merit’s States apply.

statute See United F.3d Chapman, v. 532 790, See United States an, Un- 792 325 F.3d Cir.2008) (7th that an (explaining interpretation traditional der our “methodological alleg- error assertion of a 3742(a), jurisdiction to consider we lack subject jurisdic- our an erxor of law es only to a refusal goes 3742(a)”) (quotations tion under section to the extent of downward or depart Doe, omitted); v. 351 F.3d United States departure, downward court’s district (9th Cir.2003) that an (holding error, methodological such as no where court has appellate pres- failure to consider a district to determine whether 791; v. United States ent. See id. than court can consider factors other sub- (6th Cir.2008).1 Parker, 790, 792 543 F.3d resolving when stantial assistance Here, however, contesting Grant is Manella, motion); United States departure, extent of downward (11th Cir.1996) (same); F.3d methodology by which the Dis- rather the cf. Santillana, Specifically, at it. he trict Court arrived (6th Cir.2008) (noting that this court misappre- argues that the District Court jurisdiction to review a decision where has permitted it was hended the factors its discre- 35(b) a district court misunderstood determining the Rule to consider law).3 of tion as matter undoubtedly Although motion.2 Grant reduction, his hopes larger to receive a III. Discussion goes legal on to the argument used, The District Court’s statements methodology the court not 35(b) decision, that the hearing therefore is the Rule make clear merits of its jurisdiction only thought it it could consider was subject our issue 3742(a)(1). degree § the of substantial assistance that All of the case law on all govern- provided, and that other jurisdictional point against is the higher post- jurisdiction "starting point,” and hence a 1. That we lack to review the ex- departure we reduction sentence than what he would have of a does not mean that tent legal We jurisdiction imposed received absent error. conclude lack to review sentences 35(b) range was calculated cor- pursuant to a Rule motion. To be law- that his Guidelines ful, rectly, though, rendering ques- thus moot the a sentence must be reasonable. See Gall States, alleged any U.S. 128 S.Ct. tion of whether such error could v. United Thus, (2007). appel- be the reversal. 169 L.Ed.2d 445 if an basis for imposed lant contends unreasonable, dissent, 35(b) jurisdic- According to the we lack a Rule motion is we 3. argument it under tion because is not "color- would have to review Grant's 3742(a)(1), argument bound § it be an able ... because the district court was since would twenty- imposed minimum sentence of that the sentence was in violation of McBride, years except five to the extent warranted law. United States v. Cf. (6th Cir.2006) argument (explaining cooperation.” that a Grant’s This com- 474-77 begging (by stating departure pursuant that Grant downward to U.S.S.G. bines unreviewable, argue refusal itself but the resul- cannot that the District Court’s 5K1.1 is legal was tant sentence can still be reviewed for reason- consider however, not, ableness). argued error because the District Court could not Grant has factors) those with a conflation of that his sentence is unreasonable. (by jurisdictional question and the merits suggesting argues prosecution that we lack to decide 2. Grant also that the legal sought challenge Court's meth- Court to reduce his sen- District District odology challenge, equal original if that while an issue of tence to a number to half of his impression, ultimately range, not "color- Guidelines but that errors in the initial first able”). sentencing higher calculation resulted in factors, including those listed 18 U.S.C. Other circuits that have addressed this 3553(a), disregarded. it issue had to be have tended to conclude that thinking the task of further about factors can avoided be considered in 35(b) case, motions, justice requires in this a task Rule only what but for purposes has never undertaken of reducing due size of a depar downward ture, minimum. ar- mandatory prosecution increasing never for it. In United note, Chavarria-Herrara, gues position appeal. for this on We States v. the Eleventh that, though, prosecution’s memoran- Circuit held in reducing a sentence 35(b) support dum in of its Rule motion under Rule “may a district court not specifically emphasized rely that the reduction on factors other than the substantial it “into account all recommended took assistance of the defendant.” 15 F.3d 1033 sentencing the relevant factors outlined in holding prem This was 3553(a), as entirely well as the defen- ised on plain language “[t]he 35(b)[, ... cooperation great- dant’s not [and was] which] indicates the re necessary to comply pur- er than duction shall reflect the assistance of the defendant; poses outlined it does mention other 3553(a).” Thus, may factor that be considered.” Id. at it fully Manella, itself claims that took into account 1037. In United States v. justice seeking rule, of the sentence while to Eleventh Circuit modified this hold deny authority the same to the District that it ing permissible for a district Court. court to consider factors besides substan tial deciding assistance when What factors district consid- motion, for the purposes of reduc ruling on a Rule er when motion is ing the extent of the departure. downward circuit, impression first in issue of this is, at 86 F.3d 204-05. That a “district in an though unpublished we have stated may court consider the in 35(b) opinion evaluating that a “[i]n Rule 35(b) grant order to refuse to a Rule mo reduction, motion for a district court can grant tion or to a smaller reduction than array a consider broad of factors.” See requested by However, the government. 1232, Dandy, States v. 156 F.3d reduction, in deciding grant a the dis (6th Cir.1998) (ta- 1998 WL 399460 *5 trict may any court not consider factor ble). depar- We have held downward may militate in favor of the reduction pursuant tures made to U.S.S.G. 5K1.1 other than the defendant’s substantial as may beyond not reflect considerations Ross, sistance.” United States v. 280 Fed. degree of the defendant’s substantial 896, (11th Cir.2008) (citation Appx. 897-98 Bullard, assistance. See United States v. omitted). This rule adopted by has been 413, 417 F.3d But the Circuit, Doe, the Ninth see F.3d controlling, Bullard line of cases is not approvingly and cited by dicta the Sev despite the functional similarity between enth, Poole, see United States v. 35(b), § 5K1.1 and Rule because the for- (7th Cir.2008). explicitly mer lists the factors that should properly be considered when ruling on the Its value as persuasive authority, howev merits, er, is, while the latter completely by does not. That undercut the fact that 35(b) may accomplish plain 5K1.1 and Rule language of Rule on which roughly things, they the same entirely predicated, are the Manella rule is markedly language different their con- changed. has since been At the time of Manella, cerning methodology resolving Chavarria-Herrara Rule 35(b) court, them. stated that on motion of “[t]he government useful to the until year one af become made within the Government sentence, may year sentencing; of the more than one after imposition ter the a defendant’s a sentence to reduce (C) information the usefulness of reflect assistance.” See subsequent, substantial reasonably which could not have been Chavarria-Herrara, 15 F.3d at 1035 n. until anticipated the defendant more of Rule the then-current version (quoting year after than one added). 35(b)) court la (emphasis As the promptly provided gov- which was Marietta, the default as explained ter ernment after its usefulness was reason- may court con sumption is that a district ably apparent to the defendant. array making of factors in a sider a wide language While the old version of 35(b); discretionary decision under Rule 35(b) may suggested Rule have however, that the reduc requirement degree reduction reflect “to reflect” a defendant’s tion be made assistance, defendant’s substantial the new partially abrogated assistance substantial suggestion. version does not contain that hence, degree of sub assumption; Instead, up it sets the defendant’s substan- must set the outer stantial assistance prece- tial a condition simply assistance reduction, bound of the which can then be If a dent to reduction. defendant has of other pared back the consideration provided substantial assistance and the Manella, 86 F.3d at 204-05. factors. See 35(b) motion, makes the use of the words “to reflect” may “the court reduce a sentence.” The the old version of Rule was determi- provide any particular limita- text does not contrast, By native. the version of Rule may tions on what factors reduction April, in effect in when Grant may not reflect. See United States v. sentenced, stated: Park, (S.D.N.Y. F.Supp.2d 476-78 Upon govern- General. 2008) (concluding that “substantial assis- year within ment’s motion made one merely precedent tance” is a condition may sentencing, reduce 35(b) reduction, granting rather if: tence than a limitation of the factors (A) defendant, sentencing, in determining the extent of that assistance in inves- provided substantial reduction). tigating prosecuting person; another plain language With the alteration to the 35(b) mind, of Rule in it is difficult to see (B) reducing the sentence accords adopting how the Manella rule would Sentencing guide- commission’s logical practical make sense. The no policy lines and statements. may only tion that a court consider factors Upon govern- Motion. Later that in a militate favor of smaller reduction year motion made more than one

ment’s question: a prompts obvious how does sentencing, reduce a judge way know which a factor points be if the defendant’s substantial Assume, then, fore he considers it? assistance involved: judge may what is meant is that a

(A) information not known to the de- factors, all may only base his decision year fendant until one or more after in militating on the factors favor of a sentencing; But smaller reduction. how would this

(B) If, provided by practice? example, information the de- work in for factors suggesting larger departure roughly within one a are fendant in year sentencing, equipoise suggesting but which did not with factors permissible it be departure, provi- smaller would Booker the Court held that judge to conclude that factors sions the federal statute cancel each other out—or would he have to that makes mandatory, the Guidelines departure though reduce the the factors 3553(b)(1), 18 U.S.C. violates the Sixth in militating larger favor of reduction did jury right Amendment trial. With imagine not exist? Or case which provision excised, severed and a criminal conspiracy several members of held, Court the Sentencing Reform Act provide post-conviction substantial assis effectively “makes the Guidelines adviso- conspiracy’s tance ry,” “requires a sentencing court to leaders. If the last-sentenced defendant’s ranges, consider Guidelines see 18 post-departure sentence creates an “un 3553(a)(4) (Supp.2004), but it sentencing disparit[y] warranted among permits the court to tailor the sentence with defendants similar records who have in light of other concerns as conduct,” guilty been found of similar see 3553(a) well, (Supp.2004).” see Id. 3553(a)(6), would a district 245-46, 125 S.Ct. 738. Subdivision precluded reducing court be from the sen (b)(1)(B) has been deleted it because disparity? tence further to avoid this guidelines treats the as mandatory. accept Even if plain we lan- advisory committee Fed.R.Crim.P. guage operated of Rule once to turn suggests notes. This that the Rules’ draft- one-way factors into a ratch- expected court, ers that a district at least et, why we cannot see this unusual limita- post-Booker, would be able to consider the judicial persist tion on discretion should resolving factors when plain now that the language of the Rule no 35(b) motion. longer commands it. It stands to reason hold, therefore, We that it was le that a defendant’s substantial assistance gal error for the District Court to conclude predominant will be the factor a district it was forbidden to consider other pur- court’s decision to reduce a sentence beyond factors substantial assistance when 35(b). suant to Rule But that does not evaluating the Rule motion. A court precluded mean that a district court may rely on other to in those considering from other factors at the same crease, decrease, or in place leave whatev time, ultimately whether those factors mili- er sentence it grant reduction would have smaller, a larger, tate favor of or identi- ed based on substantial assistance alone. cal sentence to the one it would have im- posed on the basis of substantial assistance day We reserve for another alone. of whether a district court is consider these other factors. We offer the

Bolstering this conclusion is fact 35(b)(1) following thoughts, though, for the sake of Rule again, shortly was amended If, Moran, completeness. as we held in hearing, striking Grant’s subsec- 35(b) (B), imposed pursuant sentence to a Rule any tion which said motion is “a sentence” within the meaning reduction must with the “accord[] Sen- 3742(a), tencing guidelines § of 18 it policy commission’s is difficult to see Advisory why statements.” As the Committee it is not “a also sentence” within the explain: Notes 3553(a), § meaning of 18 U.S.C. in which 35(b)(1) case a district court “shall consider” an The amendment conforms Rule array imposing of factors before Supreme in Court’s decision Unit- “sufficient, Booker, greater ed States v. tence but not than nec- U.S. (2005). essary, S.Ct. 160 L.Ed.2d 621 In comply” purposes. with their GIBBONS, noted, “a SMITH Circuit recently JULIA As the Seventh Circuit Judge, dissenting. adherence to the pragmatic faithful and 3553(a) § counsels mandate of 18 U.S.C. jurisdiction lack over Kevin Because we any [Rule that the nature and extent appeal, respectfully I dissent. Grant’s light in be determined ] reduction in the I. sentencing factors set forth all the cooperation cannot be statute. Post-arrest appeals from the district court’s Grant in a such co- assessed vacuum. Whether grant government’s of the Rule mo at- represents opportunistic operation requested government tion. The or a a sentence reduction tempt to obtain twenty-five from reduction sentence life genuine alteration the defendant’s years. joined govern in the sixteen Grant by as- perspective can best be determined motion, requested but he that his ment’s light of earlier sessing cooperation be further reduced below sixteen history criminal and the nature of the ar years. The district court entertained presently crime for which the defendant is extent of assis guments about the Grant’s being Chapman, 532 F.3d at sentenced.” co-conspira tance in the of his 629.4 separate and his role in a state death tors case, large in order to assess how penalty 3553(a) of the factors Consideration Ultimately, the a reduction was warranted. in a particularly would seem warranted agreed district one, case like this where Grant was sen- nine-year and awarded Grant reduction. tenced to the minimum. The 780), majority (Maj. Op. er a district court is to reevaluate the did so here.” 532 F.3d at 631. We need not and, sentencing section because the District more resolve this particularly, potential that it could not consider the to consider the for sen- Court concluded factors, concluding tencing granting opposed § to disparities when a sentence as However, 35(b). declining to reduction under Rule we that it could consider them but need decide the do so not issue this time. nonetheless. four, to cooperation. pled guilty a narrow circum- Grant’s Grant

review sentence may appeal an continuing defendant operating “[A] stances. a final sentence’ if the sentence ‘otherwise possession of a firearm in furtherance (2) (1) law; was imposed was violation crime, him drug trafficking subjecting of a applica- as a result of an incorrect imposed mandatory a minimum to sentence of (3) sentencing guidelines; is tion of the 848; § See twenty-five years. specified than the sentence the greater 924(e)(l)(A)(i).1 Where, § 18 U.S.C. im- range; or was applicable guideline here, authority the district court’s to de no posed for an offense for which there is statutory minimum part below the is based plainly unreasonable.” guideline and is solely cooperation, on the defendant’s sub Moran, (quoting 325 F.3d stantial assistance is the factor that 3742(a)). argues first the may the court below departing incorrectly calculated his to- district court mandatory minimum. This rule is level, giving tal rise to offense well-settled in the of a context motion majori- category. the second As the 3553(e). Unit brought under 18 U.S.C. however, the court ty recognizes, district Bullard, ed States v. 416-17 correctly range. calculated the Guidelines (6th Cir.2004) (collecting cases from the 2.) (Maj. Op. at 780 n. First, Fourth, Seventh, Ninth, Tenth, and Circuits). Eleventh previously We have was argues Grant next his sentence 3553(e) noted that “[a] motion under is imposed giving in violation of rise to law— 35(b) pre-sentence equivalent of a Rule first category under the —be- Monus, motion.” States Fed. cause the district court refused to recon- Appx. 512 n. 1 Al factors at the Rule sider the we though ques have never addressed this 35(b) a color- hearing. Grant fails to raise 35(b) motion, tion in the context of Rule score, however, on that be- argument able because there is no relevant distinction by court was bound cause district two,2 I twenty-five between the would extend the rea minimum sentence of years except soning present to the extent warranted case. 35(b) (amended 2002) (em- pled guilty conspiracy

1. Grant also to com- Fed. R.Crim. P money laundering, mit a conviction did 2002, however, added). phasis the rule impact mandatory minimum he faced. part: amended to read in relevant 1956(h). See 18 U.S.C. ..., Upon government's motion may court reduce a sentence if the defen- 3553(e) provides part: 2. Section in relevant dant's substantial involved: [list- assistance Government, Upon motion of the ing criteria]. authority impose shall have 35(b)(2). Fed.R.Crim.P. while Rule tence below a level established statute as a minimum sentence so as to longer no contains the "to reflect” lan- reflect defen- in the dant’s substantial assistance investi- guage, advisory a review of the committee gation person of another change notes reveals that the was made for who has committed offense. wholly reasons unrelated to the issue in this 3553(e) added). (emphasis Prior language case: new allows a nearly contained identical grant court to relief to defendants who would language: have been denied relief under the rule old If Government so moves within one year" requirement. because of the "one See year imposed, after the sentence advisory Fed.R.Crim.P. note committee's reduce a sentence to reflect Consequently, to 2002 the re- amendments. subsequent substantial assis- defendant’s tance in import cent amendments to the rule lack the investigating prosecuting anoth- person.... placed upon by majority. er them the however, one sentencing the cru the time of whose as- majority, ignores The man subject yet complete. that to a The cial fact Grant was sistance is not former datory dismissing minimum in the Bullard subject mandatory minimum sen- is framing question the line of cases tence, except to the extent warranted as “what factors a district presented case, In cooperation. the latter howev- deciding when a motion to may consider er, court must the district now reconsider to Federal pursuant a sentence reduce 3553(a) regard factors without the 35(b).” (Maj. Rule of Procedure Criminal Yet, mandatory minimum. whether a de- 777,) lack Op. at But we complete at cooperation fendant’s is posed by majority decide the fac- sentencing depends time of often on above, because, Grant failed as discussed beyond tors the defendant’s control—for a colorable claim his sentence to raise example, whether his codefendants have in violation of law. See Mor imposed was tried, indicted, already been sentenced. an, majority’s F.3d at 794. The insis mandatory of a min- applicability that “all of the case law on this tence imum will turn on factors unrelated to (Maj. jurisdictional point” contrary Op. is within particular whether a defendant falls 780) fact completely at undercut persons Congress category majority cannot find direct subject mandatory minimum made support in this circuit. the rule Whatever hardly keeping sentence. This result is Seventh, Ninth, may be in the and Elev scheme and is inconsis- Circuits, enth Moran is the rule logical sentencing system. tent with a importantly, More none of Sixth Circuit. holding permit- that a district court is sub the cases cited involved defendant required ted —but not reconsider the —to ject mandatory minimum sentence. 3553(a) 35(b) motion, factors on a Rule Chapman, v. See United States majority layers has created new (7th Doe, Cir.2008); v. United States definition, pointless process. By (9th Cir.2003); 351 F.3d 929 brought only motion is after the de- Manella, 86 F.3d 201 already fendant has been sentenced. At Therefore, reasoning persua their is not course, original sentencing, a district By ignoring sive here. the fact that Grant court is to consider the subject mandatory to a minimum sen majority factors. The now invites the dis- tence, majority procedural finds error trict court to redo the time of the Rule none, where there is the Mor circumvents 35(b) motion it already what has done at rule, ques an and turns an unreviewable the time of not. It is un- tion into a renewable one. Because I —or accept clear how often district courts will here, precludes believe that Moran review invitation, given they already I would dismiss this lack of tence, average, per on 117 defendants jurisdiction. States, year. Gall United U.S. II. n. S.Ct. 169 L.Ed.2d 445 I Although pre- (2007). believe that Moran Nevertheless, if a district court here, nonetheless, cludes review even if we declines to reconsider the fac- to review the district tors, presumably give explana- it must court’s I methodology, pro- would find no may provide tion for this refusal so that we cedural error. meaningful appellate review of that deci- Consequently, majority’s ap- sion. majority’s holding creates an un- proach principled disparity require will district courts either to between a defendant entirely whose complete repeat substantial assistance is what was done at sentenc- why they have declined to ing explain We, turn, review— must then

do so. time, in this for a second as perhaps court’s reconsideration case—the district factors or its refusal to do of the so. from all of

It is unclear who will benefit majority recognizes, “Grant this. As the undoubtedly hopes larger re- receive (Maj. Op. in his at

duction” sentence. 780.) unlikely. to be appears But already nine received

years mandatory minimum—a below the prosecution requested that the

reduction court granted and that the district with reluctance.3 WULIGER, Plaintiff-Appellee,

William

v. LIFE MANUFACTURERS INSUR- (USA), De- ANCE COMPANY fendant-Appellant.

No. 08-3342. Appeals, United States Court of Sixth Circuit. 22, Argued: Jan. 2009. May and Filed: 2009. Decided 35(b) hearing, biggest 3. At the Rule the court noted: criminal [the court] ha[s] you you drug "But as much I have to tell ever seen when it comes to Grant, type guy, got enterprise.” Transcript Proceedings are a likeable Mr. I've Grant, you to tell this is more than I No. CR-2-04-161 [of reduction] States (S.D.Ohio 2005). probably granted you.” would have Tran Oct. reconsidera 21-22, script Proceedings unlikely tion of the factors is Grant, court, (S.D.Ohio 3553(a)(1) ("The Apr. No. CR-2-04 — 161 benefit Grant. See understandable, 2007). giv determining particular This reluctance is sentence to be consider-(l) imposed, en the court’s observation at shall the nature and ”). ring ”[wa]s Grant's heroin distribution circumstances offense.... notes we As initial sentence from which the court was have no to review the extent of departing necessarily downward did not departure. this States downward any reflect factors because (6th Cir.2003) Moran, precluded the court was at the time from (downward 35(b) mo departure on Rule sentencing1 any lower. With the Jones, tion); F.3d cf. removed, statutory minimum a consider- (6th Cir.2005) (downward depar accurately ation of whether his sentence motion). ture on 5K1.1 Ac U.S.S.G. reflected, example, scope size and cordingly, we cannot consider whether continuing of his or his beyond years further reduction nine history particular and characteristics warranted. might well be warranted. Grant, however, attempts bring purview reframing case within our IY. Conclusion 3742. Al- terms reasons, though For these we reverse and re- we not review the extent of a proceedings. departure, mand for further downward 3742 allows us to Chapman, ultimately 4. Circuit Whether or the district court was Seventh declined to reach the of whether the to consider section 3553 when granting factors must be considered: "We a sentence reduction under certainly fact have to consider wheth- the records reveal that the court in

Case Details

Case Name: United States v. Grant

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 9, 2009

Citation: 567 F.3d 776

Docket Number: 07-3831

Court Abbreviation: 6th Cir.