US v. Gregory Lively, No. 08-5159 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5159 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. GREGORY LYNN LIVELY, Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:08-cr-00236-JFM-1) Argued: December 1, 2009 Decided: August 4, 2010 Before TRAXLER, Chief Judge, and WILKINSON and MICHAEL, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. ARGUED: Michael Joseph Leotta, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant. Jason Wayne Shoemaker, SHOEMAKER & CONNOR, LLC, Bethesda, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellant. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: The one day in government prison appeals and a Gregory lifetime distribution of child pornography. of Lively s supervised sentence of release for The government argues that the district court was not authorized to impose a sentence below the statutory mandatory minimum of five years because counsel for the government did not make a substantial assistance motion under 18 U.S.C. § 3553(e). The government further argues that even if the district court was authorized, it erred by departing below the mandatory minimum for reasons unrelated to substantial assistance. 1 We agree with the government that the district court is not authorized to impose a sentence below the statutory minimum in the absence of a § 3553(e) motion. There remains a question, however, as to whether the government was obligated to make a § 3553(e) agreement. impose reasons a If motion it was, sentence below related to Accordingly, we vacate under the the the terms district court statutory Lively s Lively s of Lively s is authorized minimum substantial sentence and but only plea to for assistance. remand for the district court (1) to decide in the first instance whether the 1 Because we vacate Lively s sentence on other grounds, we do not consider the government s additional arguments that the district court could not deem served the one day in prison and that Lively s sentence was substantively unreasonable. 2 government was obligated to make a § 3553(e) motion and (2) to impose an appropriate sentence. I. Lively first attracted the attention of law enforcement when he purchased from an undercover website a video of an eight-year-old girl being raped. Federal agents traced the purchase to Lively s computer and his home address. When they arrived to make an arrest, they found a depressed young man in his early 20s living out of his parents basement. Lively offered no resistance, confessed his guilt, and pointed agents to his computer where they found approximately 1300 images of child pornography. involvement with Lively child told law pornography enforcement was limited that to his trading pictures and videos online, occasionally purchasing but never selling or creating them. The pictures found on his computer featured adults having sex with various prepubescent children, some as young as eight years old. Lively said he felt guilty on several occasions, but always returned to trading. Lively distribution of eventually child §§ 2254(a)(2)(A), 2256. pled guilty pornography to one under count 18 of U.S.C. The plea agreement noted that Lively s sentence was limited by statute to a maximum term of 20 years imprisonment and a minimum term of 5 years. 3 Lively agreed to cooperate with the government and, if instructed, to act in an undercover capacity to assist in criminal investigations. He accepted the government s guideline calculation of offense level 37, which incorporated a three-level reduction for substantial assistance. Regarding the obligations of the U.S. Attorney, the agreement provided as follows: If this Office determines that the Defendant has provided substantial assistance in an investigation or prosecution of others, and if he has fully complied with all of his obligations under this agreement, this Office will make a motion, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), requesting that the Court sentence the Defendant in light of the advisory factors set forth in § 5K1.1(a)(1)-(5) and requesting a downward departure of up to two (2) levels. The Court is authorized to grant such a departure pursuant to 18 U.S.C. § 3553(e). This Office shall have sole discretion in determining whether the Defendant has provided such substantial assistance and, therefore, whether to make any motion pursuant to § 5K1.1 and 18 U.S.C. § 3553(e). . . . If this Office makes a motion for a departure under § 5K1.1 and 18 U.S.C. § 3553(e), the Defendant is not bound by the departure level recommended by this Office. . . . It is understood that, even if such a motion is made, the sentence to be imposed on the Defendant remains within the sole discretion of the Court. J.A. 10-11. The agreement also provided that the U.S. Attorney waives any right to appeal from any sentence within or above the advisory guidelines range resulting from an adjusted base offense level of 35. J.A. 11. The agreement would not, however, constrain the U.S. Attorney from appealing a sentence that is illegal or that . . . is less than any applicable statutory mandatory minimum provision. 4 J.A. 11. At sentencing including members of testified that had he Lively his put family recently on and been several his making witnesses, therapist. great therapy and that he was not a danger to society. They strides in Drawing on the therapist s testimony in particular, defense counsel argued that no jail time and a sentence of lifetime supervised release was appropriate. The government moved for a two-level departure under § 5K1.1 and advocated for an offense level of 35 and a sentence of 168 months the low end of the guideline range for offense level 35, criminal history category I. The government told the court that Lively had provided substantial assistance to the government by allowing federal agents to use his online screen name and related information to investigate two of his child pornography prosecuted trading and partners. sentenced to One 30 distribution of child pornography. of years these in partners prison for was the At no point, however, did the government expressly make a motion, either verbally or in writing, under § 3553(e). The district court asked the government about the existence of a mandatory minimum and the court s authority to sentence below that minimum. THE COURT: The following colloquy transpired: Is there a mandatory minimum? 5 MS. GREENBURG: Your Honor, there s a mandatory minimum, but of course, there motion. THE COURT: five-year is a 5K Which takes it under? MS. GREENBURG: Your Honor, the position of the office, I hate to the position of the office is that the 5K only gets it because the advisory guideline range is well above the mandatory minimum, it gets down the two-levels doesn t get below the THE COURT: What s the legality of that? I mean, some motions for downward departure I mean, there s a legal question here, whether or not a motion for cooperation takes it under the mandatory minimum. MS. GREENBURG: If the cooperation is of to the extent to get below the mandatory minimum. In this case the Court would have to find that the cooperation was worth THE COURT: That s what the state of the law is? MS. GREENBURG: I believe so. J.A. 76. Shortly after this colloquy, the district court announced its sentence. The district court imposed a sentence of one day of imprisonment and a lifetime of supervised release. Although Lively had not previously been incarcerated, the district court deemed the served. sentence one The by departure. day of district granting Instead court the of imprisonment began government s departing to its have explanation motion downward already by for two a been of the downward levels as recommended by the government, the court departed downward by eleven levels, reasoning that the two levels suggested by the 6 Government clearly is inadequate, since [Lively s] cooperation resulted in a 30-year incarceration of someone who was molesting their grandchildren. departure brought J.A. 80-81. Lively s range Believing an eleven-level below the mandatory minimum (which would have required a twelve-level departure), the court then proceeded to vary the sentence all the way down to one day of imprisonment. In explaining the variance below the statutory minimum, the district court diligently applied the § 3553(a) factors. release Finally, the court imposed a lifetime of supervised under terms including the installation of monitoring software on computers in Lively s home. After acknowledged announcing that there its sentence, remained a the real district question court [as to] whether I m properly applying the sections the factors under 3553, taking the guidelines into account. J.A. 92. Ultimately, however, the court concluded that this sentence is the right sentence. J.A. 95. The government now appeals. II. We agree with the district court that issue is whether it correctly applied § 3553. the primary We also agree with the parties that, on this issue, United States v. Allen, 450 F.3d 565 (4th Cir. 2006) controls. 7 Our interpretation of Allen, however, requires a different result from that reached by the district court and that requested by either party. In Allen we held that district courts could not sentence defendants below a statutory minimum unless §§ 3553(e) or (f) permitted them to do so. 3553(f) does not holding requires apply this to panel 450 F.3d at 568. this case. to conditions of § 3553(e) are met. vacate Section Accordingly, and remand Allen s unless the That provision reads: Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. Citing Melendez v. United States, 518 U.S. 120 (1996), the panel in Allen held that § 3553(e) was not satisfied if the government merely moved for a departure under § 5K1.1. 568. Allen, 450 F.3d at Rather, before a district court could sentence below a statutory mandatory minimum, the government move [under § 3553(e)] for such departure. must specifically Id. Applying this rule to the facts before it, the panel in Allen departed held that below the § 3553(e) motion. the district statutory court minimum Id. at 570. had in erred the because absence of it a In determining that no motion 8 had been made, the panel relied primarily on the fact that the government had made no mention of § 3553(e) at sentencing or in its briefs. to the It also noted that the plea agreement had referred statutory minimum but not § 3553(e), and that the agreement contained an exception to the government s waiver of Id. at 569. appeal for sentences below the statutory minimum. The court was because panel rejected authorized the to government the depart had argument below intended to that the the mandatory make a district minimum motion under § 3553(e). Counsel for the government actually admitted at oral argument: (1) that the government had intended to move under § 3553(e); (2) that it was official policy for the motions to be made with 5K1.1 motions; and (3) that the parties and the district court had worked from the premise that the § 5K1.1 motion encompassed § 3553(e). Counsel for the defendant further represented that his client would not have pled guilty had the court been constrained. The panel nevertheless interpreted § 3553(e) strictly and held that no motion had been made and that remand was therefore necessary. Id. In a final footnote, the panel observed that [g]iven counsel for the government's concession at oral argument that he intended the § 5K1.1 motion to include, albeit sub silentio, a § 3553(e) motion as well, one would assume that the government has obligated itself to do so on remand. 9 Id. at 570 n.5. Assuming the government made that motion on remand, the panel emphasized that the district court should still calculate the guideline range and assess under the § 3553(a) factors whether a guideline sentence would be appropriate. We think it is clear from Allen that the government did not make a § 3553(e) motion in this case. was never written mentioned motion during citing § the 3553(e) sentencing was Section 3553(e) hearing, submitted to and the no court. Regardless of what the government intended at the time and unlike Allen, in the government here denies that it ever intended to make a motion under § 3553(e) it did not make a § 3553(e) motion. Accordingly, the district court was not authorized to depart or impose a variance below the statutory minimum. 2 Lively argues that Allen is distinguishable because the plea agreement in that case did not mention § 3553(e) while the plea agreement in this case does. difference is material. We do not think this The reference in the plea agreement to the government making a motion under § 5K1.1 and 18 U.S.C. 2 Lively argues that even if § 3553(e) did not authorize the imposition of a sentence below the statutory minimum, the district court retains discretion to impose a sentence outside the statutory range under United States v. Booker, 543 U.S. 220 (2005). This argument is foreclosed by circuit precedent. United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005). 10 § 3553(e) suggests that the government intended to make both motions upon a showing of substantial assistance. establish that the government actually made It does not such a motion. Similarly, the colloquy concerning the mandatory minimum that transpired between the the district government court and that permitted the district minimum. J.A. 76 ( Your Honor, there s a five-year mandatory to depart a below § government suggests only court believed the 5K1.1 the motion mandatory minimum, but of course, there is a 5K motion. ); id. ( If the cooperation is of to the extent to get below the mandatory minimum. In this case the Court would have to find that the cooperation was minimum]. ). worth [an amount taking it below the To the extent Lively is arguing that we should imply from this colloquy that the government in fact made a § 3553(e) motion, we decline to do so. § 3553(e) motions. There are no implied Either the government expressly makes the motion or it doesn t. The reference in the plea agreement to the government making a motion under § 5K1.1 and 18 U.S.C. § 3553(e) is not, however, meaningless. Indeed, we think that, as in Allen, the government may have been obligated to make a § 3553(e) motion. The plea agreement expressly provides that the government will make a motion, § 3553(e) if pursuant it to determines U.S.S.G. that 11 § Lively 5K1.1 and provided 18 U.S.C. substantial assistance. If the government had wanted to reserve discretion to make one or the other or both motions even after finding substantial assistance, it could have simply replaced the and with an or . In fact, the phrase appears three times in the relevant portion of the plea agreement, and the word and is used in each. We need not decide this issue here or address the government s position at oral argument that, read as a whole, the plea agreement discretion briefed to by make the is a best § read 3553(e) parties, to give The interpreting and motion. the the government issue was not agreement may require findings of fact. Accordingly, the district court on remand the should government motion was after decide in contractually determining first instance whether to a obligated that Lively make provided § the 3553(e) substantial assistance. Finally, we note that if the government was obligated to make a § 3553(e) motion, the district court may not, as it did here, justify imposing a sentence minimum based on the § 3553(a) factors. discretion to impose a below the statutory District courts have non-guideline sentence between the statutory maxima and minima, provided the sentence comports with procedural and substantive reasonableness. Curry, 523 F.3d 436, 439 (4th 12 Cir. See United States v. 2008). Applying the § 3553(a) factors reasonableness. § 3553(e) motion, is If just the then one requirement government and only was then of obligated is the procedural to make district a court authorized to impose a sentence below the mandatory minimum. Furthermore, while the district court may justify imposing the statutory minimum based solely on the § 3553(a) factors, it may justify imposing a sentence below the minimum only by reference to the defendant s substantial assistance. Hood, 556 § 3553(e). F.3d 226, 234 n.2 (4th United States v. Cir. 2009); 18 U.S.C. As the plain language of the statute makes clear, § 3553(e) allows for a departure from, not the removal of, a statutorily required minimum United sentence. Pillow, 191 F.3d 403, 407 (4th Cir. 1999). States v. [T]he district court should use the factors listed in § 5K1.1(a)(1)-(5) as its guide when it selects a sentence below the statutorily required minimum sentence. Id. III. For the reasons stated, we vacate Lively s sentence and remand for the district court both to determine whether the government obligated itself to make a § 3553(e) motion and to impose a new sentence consistent with this opinion. VACATED AND REMANDED 13

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