United States v. Grant Farley, Jr. , 190 F. App'x 795 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16208 JULY 19, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-00062-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GRANT FARLEY, JR.,
a.k.a. Eric,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 19, 2006)
Before DUBINA, HULL and FAY, Circuit Judges.
PER CURIAM:
Grant Farley, Jr. appeals his 188-month concurrent sentences, imposed after
he pled guilty to five counts of possession with intent to distribute cocaine base, or
crack cocaine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C), and one count of
possession with intent to distribute five or more grams of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On appeal, he argues that the district
court’s sentence was unreasonable for failing to take into account the nature and
circumstances of his arrest and prior convictions, making his sentence “greater than
necessary” to comply with the sentencing purposes of 18 U.S.C. § 3553(a). For the
reasons set forth more fully below, we affirm.
According to the undisputed facts in the presentence investigation report
(PSI), Clearwater Police began using undercover officers to purchase crack
cocaine, and, on November 8, 2004, purchased .1 gram of cocaine base from a
person later identified as Farley. Undercover officers made five additional
purchases from Farley, including one buy of 8.4 grams of cocaine base on
November 30, 2004. Clearwater police subsequently arrested Farley, following a
purchase of 1.1 grams of cocaine base on February 10, 2005, and a grand jury
indicted him for six counts of possession with intent to distribute cocaine base,
including one sale of more than five grams.
The PSI initially set Farley’s base offense level at 26 after finding that
2
Farley was responsible for at least 5, but less than 20 grams, of cocaine base,
pursuant to U.S.S.G. § 2D1.1(a)(3). Farley then received a three-level reduction
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b), for a total
offense level of 23. However, Farley was found to be a career offender because he
had at least two prior state felony convictions for controlled substance offenses,
requiring his offense level to be set at 34 because the statutory maximum penalty
for his federal offense was 40 years’ imprisonment. With the benefit of the three-
level reduction for acceptance of responsibility, Farley’s ultimate offense level was
set at 31. While the career offender status required that Farley be placed in
criminal category VI, the PSI noted a total of 30 criminal history points, well above
the 13 or more points required to be placed at criminal history category VI without
being a career offender. With offense level 31 and criminal history category VI,
the guidelines recommended a sentencing range of 188 to 235 months’
imprisonment. Among other things, the PSI noted that Farley had abused alcohol
and marijuana since the age of 14.
Farley filed no objections to the PSI, but did file a motion entitled
“Defendant’s Mitigation Sentencing Memorandum and Request for a Reasonable
and/or Equitable Sentence.” In it, Farley argued that the “calculated tactics” of the
detectives that ultimately arrested Farley resulted in his sentence being enhanced
3
because the detectives, although they could have arrested Farley following any of
the first four cocaine base purchases, chose not to arrest Farley until he had sold
them 8.4 grams in one sale, providing the more than five grams required to charge
Farley for a crime carrying a 40-year statutory maximum sentence. Farley
indicated that he was not alleging racial discrimination or equal protection
violations, but was arguing that the detectives knew what the federal statute
required and knew that the federal government would not be interested in
prosecuting Farley until they had a sale of more than five grams of crack cocaine.
In light of the detectives’ calculated conduct, Farley suggested that, because of the
nature and circumstances surrounding his case, specifically the conduct of the
police, a 92-month sentence would more readily accomplish the sentencing goals
of 18 U.S.C. § 3553(a).
At sentencing, Farley essentially re-argued the merits of his request for a
lower sentence, noting as well that he was not arguing “sentence entrapment or
sentencing manipulation.” Farley argued that, without the enhancement for being a
career offender, his sentencing range would have been 92 to 115 months’
imprisonment, and, in light of the court’s sentencing discretion, argued that 92
months would be a reasonable and fair sentence in light of the fact that the
detectives did not arrest Farley until he had sold an amount of cocaine base
4
triggering the 40-year statutory maximum sentence that, in turn, triggered his
enhanced sentence.
The district court addressed Farley, and noted that Farley, at the time of
sentencing, was 30 years’ old, but had some 38 criminal cases on his record. The
government pointed out that Farley had three times the number of criminal history
points required to be placed in criminal history category VI, but recommended a
sentence at the low-end of the enhanced guideline range. The court then noted
that, by its count, Farley had eight different crack cocaine convictions in state
courts, resulting in four different prison sentences. The court further noted that,
while Farley had either quit dealing or eluded arrest from 2001 until the present,
his criminal history indicated that he was a street dealer whose record had landed
him in federal court. The court then stated that it had looked at the advisory
guidelines, the sentencing factors at § 3553(a), as well as the defendant’s
characteristics and the circumstances of the six drug sales that led to the instant
charges. Addressing Farley directly, the court stated that, “under [section] 3553
. . . the public needs to be protected from someone like yourself . . . in the big
picture, you’re responsible for a lot of heartache and a lot of harm . . . .” Thus, the
court sentenced Farley to 188 months’ (15.6 years) imprisonment on each count to
run concurrently, and directed that Farley participate in a drug and alcohol
5
dependency treatment program. In closing, the court noted that a low-end sentence
was “generous in terms of a recommendation from the government,” but was
sufficient and not greater than necessary to comply with the purposes of § 3553.
On appeal, Farley argues that the district court, in light of its discretion post-
Booker 1 and the § 3553(a) factors, failed to properly consider the nature and
circumstances of Farley’s arrest and conviction when imposing a sentence. Farley
further argues that the court failed to consider that the aggregate amount of crack
cocaine involved in the case was only 15.9 grams, and, therefore, a 188-month
sentence was greater than necessary. Lastly, Farley requests that this Court find
that the sentence recommended for the amount of cocaine base involved—92 to
115 months—was sufficient and not greater than necessary to accomplish
§ 3553(a)’s sentencing purposes. The government characterizes Farley’s argument
as a “sentencing manipulation” defense, and urges us to reject such a defense as
either a ground for a departure or a variance under § 3553(a)’s factors.
As a preliminary matter, while the government spends a great deal of time
arguing about the applicability of the “doctrine of sentencing manipulation,” Farley
made clear that his claim was not sentencing manipulation. Farley’s argument was
intended, as we see it, to persuade the court to use its sentencing discretion and
1
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 421 (2005).
6
impose a lower sentence than the one recommended by the guidelines based on the
nature and circumstances of the offense, a factor clearly contemplated by 18 U.S.C.
§ 3553(a)(1). Indeed, Farley’s appellate brief does not even mention the term
“sentencing manipulation,” nor does it offer any argument regarding such a
doctrine. Had he intended to raise this issue, therefore, we would be obliged to
consider it abandoned.2 Thus, while the government makes numerous arguments
to persuade us to reject the doctrine of sentencing manipulation, these arguments
are not applicable to this case, and, therefore, need not be addressed. Moreover,
the government takes issue with Farley’s proposed sentencing range, but this
argument, like the sentencing manipulation arguments, is not at issue either. The
issue is whether the district court’s sentence, imposed after the parties conceded
that the guideline range was correctly calculated, was unreasonable in light of the
factors set forth at 18 U.S.C. § 3553(a).
In any event, to the extent the conduct of the police is relevant to the
circumstances of the offense, we have held that the mere fact that police engaged in
multiple drug transactions (instead of immediately arresting the defendant) was no
more manipulative than conducting a sting operation with a large amount of drugs
2
See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.1998); Access Now,
Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (“Any issue that an appellant wants the
Court to address should be specifically and clearly identified in the brief. . . . Otherwise, the
issue-even if properly preserved at trial-will be considered abandoned.).
7
instead of a small one, and, therefore, to the extent a “sentencing manipulation”
defense is even applicable, a defendant fails to make out such a defense by alleging
that, but for the government’s conduct, more controlled purchases took place,
increasing liability at sentencing.3 United States v. Govan, 293 F.3d 1248, 1251
(11th Cir. 2002) (holding that, to the extent sentencing manipulation was an
available defense, the facts of the case did not warrant the district court’s grant of a
downward departure because the government’s actions, which resulted in four drug
sales instead of one, were not manipulative). Thus, while the district court could
consider the nature and circumstances of the offense, the mere fact the police did
not immediately arrest Farley following the first drug transaction did not, by and of
itself, require imposing a lesser sentence.
Turning to the main issue of the sentence itself, where a defendant
challenges his overall sentence, we review for unreasonableness. United States v.
Winingear, 422 F.3d 1241, 1244-45 (11th Cir. 2005); United States v. Booker, 543
U.S. 220, 261-62, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005) (holding that
appellate courts review sentences for unreasonableness in light of the § 3553(a)
3
We note that the government filed a supplemental letter of authority, pursuant to
Fed.R.App.P 28(j), directing our attention to an unpublished opinion, United States v. Williams,
No. 05-15140 (11th Cir. May 17, 2006). While it is not precedent, Williams essentially
reaffirmed the holding in Govan, and, therefore, only Govan is discussed, to the extent that it is
even relevant to this appeal. Unlike in Williams and Govan, Farley has not asserted a sentencing
manipulation or sentencing entrapment defense. The issue is discussed only insofar as the
conduct of the police was relevant to the reasonableness of the court’s sentence.
8
factors). At the time of Farley’s sentencing on November 1, 2005, the Supreme
Court had issued its ruling in Booker rendering the guidelines advisory only, and,
therefore, the district court, while required to consult and properly calculate the
guideline range, was not bound by the recommended range 188 to 235 months.
See Booker, 543 U.S. at 259-60, 125 S.Ct. at 764-65 (excising the mandatory
application of the guidelines); United States v. Crawford, 407 F.3d 1174, 1178
(11th Cir. 2005) (holding that, although the guidelines are advisory after Booker,
the district court is still bound to consult them and accurately calculate the
sentencing range). As to the government’s “presumptive” reasonableness
argument, we have rejected the notion that a sentence within the guidelines is per
se reasonable, although “the use of the Guidelines remains central to the sentencing
process.” United States v. Talley, 431 F.3d 784, 787 (11th Cir. 2005). We have
further stated that, “there is a range of reasonable sentences from which the district
court may choose, and when the district court imposes a sentence within the
advisory Guidelines range, we ordinarily will expect that choice to be a reasonable
one.” Id. at 788.
In the instant case, Farley filed a memorandum and argued to the district
court why he believed the guidelines recommended a more severe sentence than
warranted under the facts and circumstances of his case. In short, he argued that
9
the guidelines’ career offender enhancement (based on a 40-year statutory
maximum sentence) was triggered only because the Clearwater Police did not
arrest him until after he had consummated a sale of more than five grams of
cocaine base. The record actually reflects that the Clearwater Police did not arrest
Farley at the time he sold them more than five grams, but rather after a sale of 1.1
grams of cocaine base roughly two and a half months later. Notwithstanding that
fact, the district court reviewed and heard Farley’s request for a lower sentence
based on the nature and circumstances of the offense, and acknowledged that it had
considered that argument prior to imposing sentence. What the court found more
impressive, however, was that Farley had amassed a total of 30 criminal history
points by the age of 30, demonstrating a high rate of recidivism and a danger to the
community. The court noted that, under § 3553, one factor is that the public needs
to be protected from further crimes by the defendant, and found that Farley had
caused “a lot of heartache and a lot of harm.” It further found that the government
was being generous by recommending a low-end guideline sentence, but imposed
188 months, the low-end of the undisputed, recommended guideline range.
In light of the foregoing, it cannot be said that Farley’s sentence was
unreasonable. The court considered Farley’s request for a lower sentence, but was
more moved by his lengthy criminal history, which included no fewer than eight
10
arrests or convictions for possession or selling cocaine or cocaine base. While the
aggregate amount of drugs involved may have been only 15.9 grams, it was
Farley’s criminal record, not the quantities of drugs themselves, that the district
court found most relevant. Under § 3553(a), the court was permitted to impose a
sentence that factored in respect for the law, adequate deterrence, and protection of
the public. See 18 U.S.C. § 3553(a)(2)(A)-(C). In light of Farley’s criminal record
and history of substance abuse, the district court’s imposition of 188-month
concurrent sentences, at the low-end of the applicable guideline range and less than
half of the 40-year statutory maximum for Count 5 alone, as well as directing his
participation in a drug treatment program, was not unreasonable. We, therefore,
affirm. Cf. Winingear, 422 F.3d at 1246 (holding that a sentence one-tenth the
statutory maximum was not unreasonable in light of the defendant’s criminal
history, the factual circumstances of the offense, and the defendant’s medical
needs); see also United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir. 2006)
(holding that a sentence almost one-third of the statutory maximum was
reasonable).
AFFIRMED.
11