United States v. John Fortner , 491 F. App'x 692 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0870n.06
FILED
No. 11-5993 Aug 09, 2012
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, On Appeal from the United
States District Court for the
v. Western District of Tennessee
JOHN FORTNER, a/k/a Derrick Quillen,
Defendant-Appellant.
/
Before: GUY and CLAY, Circuit Judges; HOOD, District Judge *
RALPH B. GUY, JR., Circuit Judge. Defendant John Fortner, a/k/a Derrick
Quillen, appeals his plea-based sentence on one count of conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. §§ 841 and 846. Defendant challenges the denial
of an acceptance-of-responsibility adjustment under USSG § 3E1.1, and argues that the
resulting within-guidelines sentence of 210 months was substantively unreasonable. Both
issues relate to defendant’s post-plea arrest for his involvement in another conspiracy to
manufacture methamphetamine, which defendant claimed to have joined in an attempt to
provide assistance to the government. After a review of the record and applicable law, we
find no error and affirm.
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 11-5993 2
I.
Defendant was stopped shortly after midnight on April 13, 2010, after being observed
removing a washer and dryer from an apartment in Memphis, Tennessee, and was found to
be in possession of methamphetamine, marijuana, and Xanax. Defendant’s claim that he was
removing his mother’s appliances at her request was not true, although he did have
permission to stay in the apartment until a pending eviction became final. In the apartment,
officers discovered supplies and other evidence indicating that methamphetamine was being
“cooked” there. Defendant admitted that he had allowed others to cook methamphetamine
in the apartment six or seven times, and that he was a “pill gatherer” for an ongoing
conspiracy to manufacture and distribute methamphetamine. Although defendant identified
himself as John Fortner, his given name was later determined to be Derrick Quillen.
The seven-count indictment charged defendant with conspiracies to manufacture and
to possess with intent to distribute methamphetamine, as well as five substantive offenses
related to the manufacture and distribution of methamphetamine. Pursuant to a written plea
agreement entered in August 2010, defendant agreed to plead guilty to conspiracy to
manufacture methamphetamine in exchange for dismissal of the remaining counts. No
representations were made concerning the sentence to be imposed, and the government
retained sole discretion to decide whether to file a motion for downward departure based on
substantial assistance under USSG § 5K1.1 and 18 U.S.C. § 3553(e). Also, the government
agreed to recommend the maximum reduction for acceptance of responsibility if it
determined that defendant had accepted responsibility for the criminal conduct that was the
No. 11-5993 3
subject of the plea agreement. That could change, however, if defendant engaged “in
conduct inconsistent with the acceptance of responsibility, including, but not limited to,
participation in any additional criminal activities between [then] and the time of sentencing.”
Defendant was forthcoming with information about his criminal activities before and
after the indictment, outlined the distribution operation, and offered to cooperate with the
government. At the change of plea hearing, defendant provided detailed information not only
about his crimes but also about other methamphetamine operations. During a proffer session
involving Detective Brandon Harris, defendant identified 35 individuals in the “tri-state” area
who were involved in methamphetamine operations and offered to assist the government as
a confidential informant with respect to his activities and other drug conspiracies he might
be able to join.1
Defendant sought release on bond complaining that he was not receiving adequate
medical treatment for a “myriad of ailments, including cancer.”2 The motion was granted
only after the government joined the request for bond to allow the defendant to act as a
confidential informant in the investigation of his and possibly other drug conspiracies. The
conditions of defendant’s release included: not committing a crime, reporting weekly to the
DEA, and not traveling outside the Western District of Tennessee without the prior approval
of Pretrial Services. Defendant was also instructed to contact Detective Harris or Detective
1
Memphis, located in the southwestern most part of Tennessee, is near the border of Arkansas and
Mississippi. This presumably is the “tri-state” area to which they refer.
2
Defense counsel downplays defendant’s exaggerated medical complaints and acknowledges that
defendant did not have cancer, although defendant previously had surgery to remove part of a collapsed
lung.
No. 11-5993 4
Teeters concerning his cooperation upon his release. Defendant’s sentencing was adjourned
to allow time for his cooperation to yield results. Because defendant did not provide
substantial assistance, no motion for downward departure or variance was made at the time
of sentencing.
After being released from federal custody on November 26, 2010, defendant called
Detective Harris to tell him that he was going to go visit his mother. Detective Harris told
the defendant to call again when he returned. Without getting permission to leave the district
from Pretrial Services, defendant traveled to Alabama where his mother Sandra Fortner and
stepfather John Fortner lived. Harris did not hear back from defendant, and later learned that
the defendant had been arrested in Alabama on December 3, 2010. Defendant was arrested
after the car he was riding in was stopped. A search of the vehicle yielded coffee filters, salt,
two lithium batteries, two bottles of drain cleaner, a package of cold pills, and a small bag
containing a white substance. Defendant was charged with possession of precursor
substances with intent to manufacture methamphetamine and with falsely identifying himself
as John Fortner.
Defendant’s bond was revoked, he was returned to federal custody, and the
government took the position that defendant’s post-plea conduct was inconsistent with the
acceptance of responsibility. Defense counsel filed a sentencing memorandum which argued,
among other things, that defendant should not lose credit for acceptance of responsibility on
account of his post-plea conduct. During the sentencing hearing, the district court heard
testimony from Detective Harris, considerable argument on the issue of acceptance of
No. 11-5993 5
responsibility, and defendant’s assertion during allocution that he thought he was doing “the
right thing.”
The district court denied the adjustment for acceptance of responsibility and calculated
the sentencing guidelines range accordingly. The district court accepted the parties’ more
conservative estimate of the quantity of drugs involved and determined defendant’s base
offense level to be 28 under USSG § 2D1.1. Three points each were added (1) because the
manufacture of methamphetamine created a substantial risk of harm to others or the
environment, USSG § 2D1.1(b)(10)(C)(ii); and (2) because defendant’s role in the offense
was as a manager or supervisor, USSG § 3B1.1(b). Without the adjustment for acceptance
of responsibility, defendant’s total offense level was 34.3
Defendant’s criminal history score consisted of 5 points for prior offenses and 2 points
for having committed the instant offense while on probation for another offense, which
resulted in a criminal history category of IV. The district court found the recommended
sentencing guidelines range to be 210 to 262 months, considered the relevant sentencing
factors, and sentenced defendant to a term of 210 months of imprisonment to be followed by
five years of supervised release. This appeal followed.
II.
The district court’s determination regarding acceptance of responsibility is entitled to
“great deference” and is reviewed for clear error. United States v. Webb, 335 F.3d 534, 538
(6th Cir. 2003); USSG § 3E1.1, cmt. 5 (2010) (“the determination of the sentencing judge
3
Defendant’s claim that his offense level would have been 30 (instead of 31) is based on an
assumption that he also would have received a reduction under USSG § 5K1.1.
No. 11-5993 6
is entitled to great deference on review”); see also United States v. Smagola, 390 F. App’x
438, 444 (6th Cir. 2010).
A defendant may receive a decrease in his offense level “[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense.” USSG § 3E1.1(a) (two levels);
see also § 3E1.1(b) (a third level). Although a timely plea of guilty combined with truthful
admission of the conduct comprising the offense of conviction is considered to be significant
evidence of acceptance of responsibility, that evidence “may be outweighed by conduct of
the defendant that is inconsistent with such acceptance of responsibility.” USSG § 3E1.1,
cmt. 3. Specifically, post-plea criminal conduct that is of the same kind or is related to the
offense of conviction is inconsistent with the acceptance of responsibility. See United States
v. Banks, 252 F.3d 801, 806-07 (6th Cir. 2001); United States v. Morrison, 983 F.2d 730, 735
(6th Cir. 1993). Defendant cannot claim that his post-plea conduct was unrelated to the
offense of conviction; rather, he asserted that he was acting either at the specific direction
of Detective Harris, or under a well-intentioned if misguided attempt to assist the
government’s investigation.
Defendant claims that the district court failed to resolve a factual dispute over whether
he acted with intent to engage in criminal conduct. Defendant relies on United States v.
Brown, 321 F.3d 347 (2d Cir. 2003), in which a confidential informant left the jurisdiction
to visit his mother and then stopped cooperating with the government. In Brown, the
defendant claimed that he absconded out of fear for his safety, not with the purpose of
violating the law. In fact, the court reversed the imposition of an obstruction-of-justice
No. 11-5993 7
enhancement under USSG § 3C1.1 because the district court had failed to conduct a hearing
or make a finding that the defendant had the specific intent to obstruct justice as required
under § 3C1.1. Id. at 351. The court also reversed the denial of the adjustment for
acceptance of responsibility because it was based entirely on the defective application of the
obstruction-of-justice enhancement. Id. at 353-54. Here, the district court conducted an
evidentiary hearing and denied the adjustment for acceptance of responsibility on its own
merits.
Moreover, it is evident from a review of the transcript of the sentencing hearing that
the district court found that the defendant had not demonstrated that his actions were
consistent with acceptance of responsibility at the time of his arrest in Alabama.
Significantly, defendant had asserted in a handwritten letter to the district judge that he had
been acting at the specific direction of Detective Harris at the time of his post-plea arrest.
The letter stated in part:
I was doing what I though[t] was right. Going to get the drugs and find out
what was going on. I called the Harris and told him about it. He said go with
it. Call him when I gite [sic] everything set up. The next night I was arrested
for the crime that violated my bond. I feel like I didn’t go [sic] that.
Defendant did not testify, so was not subject to cross-examination regarding this claim, but
he reiterated during allocution that he thought he was doing the “right thing” in Alabama.
(“I wish I could have done the right thing, and the things that happened in Alabama, I thought
I was doing the right thing, like you said the double agent thing, and I accept responsibility
for that, yeah, that was basically what happened, what was kind of happening, and I
apologize for that.”).
No. 11-5993 8
However, Detective Harris testified that he “absolutely” had not asked defendant to
set up any kind of drug deal or arrest in Alabama. Harris also said he did not give permission
for defendant to leave the jurisdiction, which was a determination to be made by Pretrial
Services. Rather, when defendant called Harris to say he was going to go visit his mother,
Harris simply told defendant to call when he returned. That was the last time Harris heard
from him. Ruling on the issue, the district court specifically found:
adjustment for acceptance of responsibility, I want to be candid, you do what
the defendant did, you don’t get acceptance. We can have a long discussion
about it, you have written plenty about that. I understand, but he just got out,
he immediately disobeyed a supervising officer, he went to Alabama, he’s
caught in a vehicle with a bunch of methamphetamine. And Mr. Bell, we can
have a discussion about it, but the evidence is extremely clear.
In the colloquy that followed, defense counsel argued that defendant’s earlier
cooperation and plea was relevant, and the district court explained that the acceptance-of-
responsibility adjustment requires the voluntary termination or withdrawal from criminal
conduct. The district court addressed defendant’s conduct again, stating:
you’re expected to not continue to associate with other people who are
engaged in criminal conduct. There are other things, but those are the two that
would be most relevant in the case. So he didn’t do the second one, but we
didn’t know that at first, . . . so when you came in, changed your plea . . . we
were just fine because we didn’t know anything else. Then he went to
Alabama and that’s why . . . Detective Harris’ testimony is important because
they’re trying to figure out, well, did he go there because he was supposed to
go there, and the answer is well, no, he didn’t.
Noting that no obstruction of justice enhancement was being requested, the district court
explained that defendant did not receive an acceptance of responsibility adjustment because
he
No. 11-5993 9
went back and committed the additional conduct . . . if we go back in and
commit another offense, it is pretty inconsistent . . . [and defendant] went back
and associated with other individuals who were engaged in criminal conduct.
That doesn’t really seem to be in any material doubt at all.
The district court also rejected defense counsel’s suggestion that “maybe he did [so] under
the misguided impression that he could somehow engage in his own double agent activity.”
Defendant argued that, whether mistaken or confused, he had been trying to infiltrate
a methamphetamine conspiracy to gather information for the government. Defense counsel
emphasized that the defendant (1) had been released so he could become an informant, but
did not receive any training or instruction; (2) went to visit family in Alabama and thought
that getting involved a conspiracy there could help the government somehow; (3) was a long-
time heavy drug user who likely had brain damage that could affect his reasoning; and, at
worst, (4) was an addict whose predictable relapse into criminal activity was “more the result
of government negligence than a failure to accept responsibility.” Through the presentence
report, defendant admitted to many years of daily use of methamphetamine, weekly use of
cocaine, and heavy use of marijuana and LSD. There was no evidence of defendant’s mental
state, but defense counsel cited to medical research concerning the effects of
methamphetamine use—including one study reporting that regular methamphetamine users
had as much as an 11% loss of tissue in some areas of the brain.
Claiming that the district court failed to make necessary findings, defendant points to
the following highlighted comment made in connection with the § 3553(a) factors:
I don’t think that Detective Harris misunderstood at all, I think what he says
is accurate and true. I do agree with Mr. Bell that you could make a pretty
good argument that people who have had the extensive exposure to controlled
No. 11-5993 10
substances over that many years just might not get it right mentally. The
government doesn’t feel that way. The government feels like it just wasn’t
true. I don’t really have to resolve that. All I can say is that it didn’t work the
way it has to work in the process. The person who is going to cooperate with
the government has to work under the control of the officer. I’m convinced
that is what the officer conveyed to the defendant. I’m convinced that the
defendant should have understood that and then . . . decided to go to Alabama.
(Emphasis added.) Whatever the highlighted statement suggests by itself, the record is clear
that the district court considered and rejected defendant’s claim that he was either acting as
an informant or reasonably believed that he was acting as an informant at the time of his
arrest.
Finally, defendant relies on the same arguments to challenge the decision to deny
defendant the adjustment for acceptance of responsibility notwithstanding his early guilty
plea and apparently truthful admission of relevant conduct. However, in reviewing the
district court’s decision with “great deference,” there is no basis to conclude that the district
court committed clear error in finding that defendant’s post-plea conduct was inconsistent
with the acceptance of responsibility for his offense.
III.
The substantive reasonableness of a defendant’s sentence is reviewed for abuse of
discretion. United States v. Simmons, 587 F.3d 348, 355, 358 (6th Cir. 2009). Sentences
imposed within the applicable guideline range are afforded a presumption of reasonableness.
United States v. Vowell, 516 F.3d 503, 516 (6th Cir. 2008). A sentence may be substantively
unreasonable if the district court selects the sentence arbitrarily, bases the sentence on
No. 11-5993 11
impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable
amount of weight to any pertinent factor. Id. at 510.
Defendant argues that his sentence was substantively unreasonable because the effect
of a “single, understandable mistake” resulted in a substantial increase, if not a doubling, of
his sentence. That mistake was thinking he could provide assistance to the government by
getting involved in a new methamphetamine conspiracy shortly after being released on bond,
which cost him the adjustment for acceptance of responsibility, the chance at a motion for
downward departure for substantial assistance, and the increase in his criminal history
category from II to IV. Defendant estimates that, if not for the arrest, his sentencing
guidelines range would have been 108-135 months (based on an offense level of 30 and a
criminal history category of II). Instead, the applicable guidelines range was determined to
be 210-265 months (based on an offense level of 34 and a criminal history category of IV).
It is clear from the record, and defendant does not dispute, that the district court
considered the relevant § 3553(a) factors and imposed a sentence at the bottom of the
applicable sentencing guidelines range. Moreover, the district court specifically considered
defendant’s claim that he thought he was doing the “right thing” and did not abuse its
discretion in denying a downward variance. Because defendant has not rebutted the
presumption of reasonableness afforded a within-guidelines sentence, defendant’s sentence
was not substantively unreasonable.
AFFIRMED.