US v. George Powell, Jr., No. 07-4812 (4th Cir. 2008)
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Filed: December 22, 2008 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4812 (5:06-cr-00299-FL) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GEORGE EUGENE POWELL, JR., Defendant - Appellant. O R D E R The court amends its opinion filed December 16, 2008, as follows: On page 4, the footnote number is changed from * to 1, and the citation in that footnote, line 4, is corrected to read 466 F.3d. On page 8, footnote 2 is added. For the Court - By Direction /s/ Patricia S. Connor Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4812 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GEORGE EUGENE POWELL, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:06-cr-00299-FL) Argued: October 30, 2008 Decided: December 16, 2008 Before WILKINSON, Circuit Judge, Samuel G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation, and Henry E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by unpublished per curiam opinion. ARGUED: James B. Craven, III, Durham, North Carolina, for Appellant. Jennifer P. May-Parker, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: George E. B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: This case presents the narrow question of whether the U.S. Sentencing Guidelines ( U.S.S.G. or Guidelines ) permit a sentencing court to award a third-level reduction for acceptance of responsibility when a defendant s offense level qualifies for such reduction only after an upward departure. Although this appears been to addressed Section be by a 1B1.1 the first time this reviewing court, of issue Guidelines the we are has of the clearly formally opinion that delineates the methodology for computing a defendant s advisory guidelines, and specifies that eligibility for acceptance of responsibility a third-level reduction on a turns whether for defendant s offense level exceeds 16 prior to departure or variance. Pursuant to a written plea agreement, George Eugene Powell, Jr. ( Powell ) entered a plea of guilty to a single count of bank larceny. The underlying plea agreement specifically provided that a three-level sentencing reduction was warranted pursuant to U.S.S.G. responsibility. Manual Section 3E1.1 for acceptance of Following acceptance of Powell s plea, a U.S. Probation Officer prepared a pre-sentence investigation report. Relying on U.S.S.G. § 2B1.1(a)(2), pertaining to burglaries of nonresidential structures, the probation Powell s base offense level at 12. officer calculated Despite the language of the plea agreement, Powell received only a two-level reduction for 2 acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), because his base offense level was less than 16. total offense level was 10. The resulting Powell s criminal history category was VI, which yielded a guidelines range of 24 to 30 months of imprisonment. Based some of on a Powell s similar numerous nature to uncounted the charge prior of convictions, conviction, and contending that Powell s criminal history category inadequately represented his criminal history and likelihood that he would commit other departure. crimes, the government moved for an upward Powell opposed the motion. At the sentencing hearing, the court adopted the probation officer s calculation of Powell s guidelines, finding a base offense level of 12, with a two-point reduction for acceptance of responsibility, and a total offense level of 10. Powell offered no objection to the court s preliminary findings. The court next considered the government s motion for an upward departure, and ultimately departed offense levels to a final offense level of 18. upward by eight This resulted in a guidelines range of 57 to 71 months of imprisonment. court imposed a 71-month sentence. The Powell does not challenge the upward departure on appeal. Following the upward departure, Powell urged the court to revisit his entitlement to an 3 additional reduction in his offense level for acceptance of responsibility pursuant to the plea agreement. invitation to The government, however, declined the court s seek responsibility. an The additional government level for articulated opposing a third-level reduction. acceptance two grounds of for First, under the methodology set forth in the Guidelines, the calculation of acceptance of responsibility precedes departure motions. the court s consideration of any And second, the additional reduction was not appropriate under the facts of this case. 1 Powell s agreement counsel clearly stressed to contemplated the a court that third-level the plea reduction. Following the government s refusal to move for such reduction, the court imposed a 71-month sentence without further comment. At no time did Powell seek specific enforcement of the plea agreement or request leave of court to withdraw his plea of guilty. This appeal followed. Powell frames the issue on appeal as a single issue: [w]as the District Court in error in not allowing an additional one level reduction for acceptance 1 of responsibility under Although neither side raised the issue, we note that a third-level adjustment for acceptance of responsibility can only be granted upon formal motion by the government at the time of sentencing. United States v. Chase, 466 F.3d 310, 315 (4th Cir. 2006). 4 Section 3E1.1(b), conceding an Federal absence Sentencing of authority Guidelines? supporting his Candidly position, Powell argues that the district court erred in failing to award his requested third-level reduction for acceptance responsibility following the upward departure. of He contends that even though his initially calculated adjusted offense level was less than 16, his total offense level exceeded 16 following the upward departure. At that point, in his view, the court should have reduced his offense level by a third point for acceptance of responsibility, as dictated by the plea agreement. The methodology urged by Powell is contrary to the Guidelines and all interpretive cases. Section 1B1.1 of the Guidelines specifically directs the order in which its provisions are to be applied. Application of the responsibility appropriate adjustment for acceptance of occurs prior to any consideration of departures. 1B1.1(e)(i). sentencing U.S.S.G. § Under the prescribed order of calculation, the guidelines range, including application of offense level adjustments under U.S.S.G. § 1B1.1(b),(c), and (d), should be completed before the departure is appropriate. determination of whether an upward Because Powell s offense level was not 16 or more at that juncture, he did not meet the requirement for a third-level reduction under U.S.S.G. § 3E1.1(b). 5 Powell draws the Court s attention to an unpublished decision of this Court, United States v. Schellenberger, 246 Fed. Appx. 830 (4th Cir. however, Schellenberger, Schellenberger did calculations. not Powell 2007). is misplaced. address simply Powell s the points on court in The sequence out reliance of the guidelines computational A process employed by the sentencing court in Schellenberger. presentence investigation report ( PSR ) established Schellenberger s base offense level at 17, and added 29 levels to account for various sentencing factors. Three points were then subtracted for acceptance of responsibility. a total offense level of 43. Schellenberger appropriately Id. at 832. enhanced the This yielded The trial court in defendant s base offense level for specific offense characteristics outlined in Chapter 2 of the Guidelines and adjustments related to victim, role, and obstruction of justice from parts A, B, and C of Chapter 3, before responsibility. deducting three levels for acceptance This faithfully tracks the general application principles delineated in § 1B1.1 of the Guidelines. of the of trial court s calculation in The product is Schellenberger appropriately referred to as an adjusted offense level, which precedes any determination of whether a departure is warranted. This sentencing Court a has repeatedly defendant to counseled first 6 trial properly courts calculate in the sentencing range recommended determine whether an by upward the or Guidelines, downward next to departure is appropriate, and lastly, to decide whether a sentence within that range, and within statutory limits, serves the factors set forth in 18 U.S.C. § 3553(a). 437 F.3d 424, 432 (4th See United States v. Moreland, Cir. 2006). That procedure was meticulously followed by the trial court in the immediate case at hand. Although he neither framed it as a separate issue for appeal nor raised it in the district court, Powell argues that the government breached the plea agreement by failing to move for the additional responsibility. level of reduction for acceptance of On close examination, the plea agreement does not obligate the government to move for a three-level reduction for acceptance of responsibility. that [a] downward adjustment of The plea agreement stated 3 levels for acceptance responsibility is warranted under U.S.S.G. §3E1.1. 20.) Agreement notwithstanding, the court was of (J.A., at powerless to award the third level under U.S.S.G. § 3E1.1(b) when the base offense level was 12. Therefore, even if the United States had moved for a third-level reduction, the trial court lacked the power to grant the request. Consequently, this element of the plea agreement was unenforceable. In any event, Powell did not seek in the district court, and does not seek here, to withdraw 7 his guilty plea, but instead requests that we vacate the judgment and remand to the district court for resentencing with an applicable advisory Guideline range of 51 63 months. We are not at liberty to direct the district court to sentence within an inapplicable guideline range. 2 Finding no error in calculating the sentencing guidelines, the district court s judgment is, therefore, AFFIRMED. 2 Even if we were to determine that Powell has properly raised the issue that the government breached its plea agreement by declining to move the district court for an additional reduction for acceptance of responsibility, our review would be for plain error because he failed to raise this issue in the district court. United States v. McQueen, 108 F.3d 64, 65-66 (4th Cir. 1997). 8
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