United States v. Mark Morelock ( 2010 )

                                File Name: 10a0163n.06
                                                 No. 08-4695
                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                           )                          Mar 15, 2010
                                                        )                    LEONARD GREEN, Clerk
            Plaintiff-Appellee,                         )
    v.                                                  )   ON APPEAL FROM THE UNITED
                                                        )   STATES DISTRICT COURT FOR THE
    MARK MORELOCK,                                      )   SOUTHERN DISTRICT OF OHIO
            Defendant-Appellant.                        )
    Before: GIBBONS, SUTTON, and WHITE, Circuit Judges.
            JULIA SMITH GIBBONS, Circuit Judge. Defendant–appellant Mark Morelock appeals
    a 144-month sentence imposed by the United States District Court for the Southern District of Ohio.
    Morelock pled guilty to one count of conspiracy to distribute and possess with intent to distribute
    100 kilograms or more of marijuana in violation of 21 U.S.C. § 846. On appeal, he raises three
    challenges to his sentence: (1) the district court improperly used a prior conviction under 18 U.S.C.
    § 1952 (interstate travel or transportation in aid of racketeering enterprises) as a predicate felony for
    finding that Morelock was a career offender under § 4B1.1 of the United States Sentencing
    Guidelines; (2) the sentence imposed was substantively unreasonable; and (3) reversal is required
    because the district court was unaware that it had discretion to sentence below the range applicable
    under § 4B1.1. For the following reasons, we affirm Morelock’s sentence.
           This case arises out of a conspiracy between Morelock and four co-conspirators to traffic in
    large amounts of marijuana. Presentence Report (“PSR”) at 1. The investigation began when a
    shipment of marijuana packed in an inflatable “fun castle” was intercepted in North Carolina. PSR
    at 4. The package was addressed to an address in Wellston, Ohio. PSR at 4. Agents arranged for
    a controlled delivery, and Morelock accepted the package, along with two co-defendants. PSR at
    4. Morelock admitted to arranging the transport. PSR at 4. As agents secured the house to execute
    a search warrant, a second commercial delivery arrived containing an identical, marijuana-filled “fun
    castle.” PSR at 4. In a nearby hotel, investigators found two further co-conspirators with documents
    noting the delivery information and cost of the two shipments and who were tasked with collecting
    payment on behalf of the Texas supplier. PSR at 4. Morelock also admitted that he was the intended
    recipient and distributor of the marijuana, and a search of his residence uncovered five firearms,
    $13,660 in cash, and coolers containing green vegetation and drug-sales paraphernalia. PSR at 4.
    The two “fun castles” yielded 480 kilograms of marijuana. PSR at 5.
           In a superseding indictment, filed on May 29, 2008, the grand jury charged Morelock and
    four co-defendants with various drug offenses. DE 40. Specifically, Morelock was indicted on one
    count of conspiracy to distribute and possess with intent to distribute 100 kilograms or more of
    marijuana and one count of attempt to distribute more than 100 kilograms of marijuana, both in
    violation of 21 U.S.C. § 846. DE 40 at 1–2. Morelock was also made subject to a forfeiture under
    21 U.S.C. § 853(a)(1) and (2). DE 40 at 3. Morelock pled guilty to the conspiracy count, which
    carried a minimum five-year and maximum forty-year term of imprisonment, and submitted to the
    forfeiture. DE 64 at 1, 5.
           In the plea agreement, Morelock promised to testify and provide a full statement to the
    government regarding all matters pertaining to the superseding indictment or any other unlawful
    activity in which he may have been involved. DE 64 at 2. The parties also stipulated to the quantity
    of drugs involved, resulting in a base offense level of 28, and a two-level enhancement pursuant to
    U.S.S.G. § 2D1.1(b) for possession of a firearm in connection with the drug conspiracy. DE 64 at
    3. The government agreed to file a motion pursuant to U.S.S.G. § 3E1.1(b) requesting a three-level
    downward departure for timely notification and acceptance of responsibility. DE 64 at 4. Finally,
    with respect to career-offender status, the agreement stated:
           Pursuant to U.S.S.G. § 4B1.1, [Morelock] understands that it is the position of the
           United States that the defendant is a career offender, in light of the fact the instant
           offense is a controlled substance offense and he has two prior convictions for a crime
           of violence and/or a controlled substance offense. If the Court finds the defendant
           to be a career offender, the defendant further understands that his advisory guideline
           will be an offense level 34, criminal history category VI, prior to any reduction for
           acceptance of responsibility.
    DE 64 at 4–5. Morelock retained the right to appeal any application of § 4B1.1. DE 64 at 5.
           The PSR found that Morelock’s career-offender status and the applicable maximum penalty
    of twenty-five years or more under § 846 required a base offense level of 34, pursuant to U.S.S.G.
    § 4B1.1(b)(1)(B), and a criminal history category of VI. PSR at 7, 11. The three-level downward
    departure for acceptance of responsibility resulted in an adjusted offense level of 31 and an
    applicable Guidelines range of 188 to 235 months of imprisonment and a term of supervised release
    between four and five years. PSR at 7, 11, 14. Morelock objected to the application of the career-
    offender status on the grounds that “as applied to defendant [it] fails to properly reflect [18 U.S.C.]
    § 3553(a) considerations, reflects unsound judgment, and does not treat the defendant’s
    characteristics in the proper way.” Addendum to PSR at 1. He also objected to the use of the § 1952
    conviction as a qualifying “controlled substance offense” because it did not satisfy the § 4B1.1
    requirement that the two predicate convictions occurred within fifteen years of the present
    conviction. Id. Morelock further noted that, without applying § 4B1.1, his applicable Guidelines
    range would be 87 to 108 months. Id. The probation officer ultimately recommended a sentence
    of 188 months, the minimum Guidelines sentence based on the § 4B1.1 career offender
    enhancement. Sentencing Recommendation at 1.
           The government subsequently filed a U.S.S.G. § 5K1.1 motion requesting a downward
    departure from the Guidelines range due to Morelock’s substantial assistance in the government’s
    prosecution of his four co-conspirators. DE 92. The government recommended that Morelock
    receive a sentence within the Guideline range of 100 to 125 months based on an offense level of 24
    and a criminal history category of VI. DE 92 at 1–2. Morelock moved for a downward departure
    on the grounds that his criminal history “significantly over-represents” the likelihood that he will
    re-offend and that he has precancerous Barrett’s Esophagus (a change in cell structure in the
    esophagus caused by acid reflux).      DE 93.     Morelock argued: (1) that the career-offender
    enhancement was advisory after United States v. Booker, 
    543 U.S. 220
     (2005); and (2) that the
    district court had discretion to significantly depart downward despite the qualifying predicate
    convictions. DE 93 at 2–4.
           That Morelock has considerable experience trafficking in marijuana between Texas and Ohio
    is readily apparent. See PSR at 8–11; DE 92 at 2–3. He has six prior drug-related convictions, five
    of which involved trafficking in marijuana between Texas and Ohio. The convictions that the
    government and the PSR found to be qualifying predicate offenses under § 4B1.1 were: (1) a 1992
    conviction for a violation of 18 U.S.C. § 1952 involving purchasing and transporting from Texas to
    Ohio numerous loads of 100 to 500 pounds of marijuana; and (2) convictions in 1996 for conspiracy
    to possess with intent to distribute and to distribute marijuana and possession with intent to distribute
    marijuana, relating to the distribution of hundreds of pounds of marijuana in Ohio over a period of
    several months.1 PSR at 8–11.
            At the sentencing hearing, the district court first addressed whether Morelock satisfied the
    requirements of § 4B1.1. See DE 130 at 4. Morelock’s counsel asserted in writing that the objection
    was based on the timing of the prior convictions but retracted this argument at the hearing:
            I think if Mr. Morelock is incarcerated during the 15-year period, the case law makes
            it clear that he qualifies as a Career Offender. And I think that the convictions set
            forth in the Presentence Report indicate that he has two convictions within the 15-
            year period if you count the time he was incarcerated. So, I think technically he is
            going to qualify as a Career Offender.
    DE 130 at 5. The district court agreed and asked counsel whether “the Probation Officer correctly
    analyzed [the career-offender] determination in this case.” DE 130 at 6. Morelock’s attorney
    answered, “I agree,” and turned his attention to arguing that a downward departure from the
    Guidelines range resulting from career-offender determination was warranted. DE 130 at 6. After
    hearing argument on this point, the district court agreed with the government’s position that
    Morelock was a career offender with multiple convictions for drug trafficking and that he had
            Morelock’s other prior drug convictions were: (1) in 1985, drug abuse for possessing
    cocaine, a fourth-degree felony under Ohio state law; (2) in 1987, aggravated possession of
    marijuana under Texas state law after officers stopped him while transporting 113 pounds of
    marijuana from Texas to Ohio; and (3) in 1998, conspiracy to commit aggravated possession of
    marijuana under Texas state law for buying 200 pounds of marijuana from an undercover agent.
    already received considerable leniency in sentencing by not being charged with available
    enhancements that would raise the mandatory minimum to ten years. DE 130 at 7–11. The district
    court acknowledged that “the Court does have authority, in some circumstances, to depart downward
    from the guidelines” but found that the criminal history and offense level did not “overrepresent[]
    the seriousness of [Morelock’s] criminal history” in such a way as to warrant departure. Id. at 10.
    The district court noted that Morelock had drug convictions dating back to the mid-1980s, that this
    was his third federal drug offense, and that he was likely to re-offend. Id. at 11.
           The district court also granted the government’s § 5K1.1 motion for a downward
    departure—to a base offense level of 26, resulting in a Guidelines range of 120 to 150 months—on
    the basis of substantial assistance. But the court did not depart to the extent argued by the parties
    because the indicted co-conspirators were customers and couriers, rather than the Texas suppliers.
    DE 130 at 22–23. After hearing from the attorneys regarding the § 3553(a) factors, the district court
    addressed those factors in detail, see DE 130 at 30–33, and sentenced Morelock to 144 months of
    incarceration, five years of supervised release, and payment of a $25,000 fine, see DE 96 at 2–4. At
    that time, in response to the district court’s question of whether any legal impediments to the
    sentence existed, Morelock’s attorney answered in the negative. DE 130 at 38. Morelock timely
    appealed. DE 98.
           We review de novo a district court’s determination that a prior conviction constitutes a
    predicate offense for career offender purposes under § 4B1.1. United States v. Baker, 
    559 F.3d 443
    450 (6th Cir. 2009) (quoting United States v. Skipper, 
    552 F.3d 489
    , 491 (6th Cir. 2009)). Because
    Morelock did not raise the objection that his designation as career offender was invalid because his
    § 1952 conviction is not a predicate “controlled substance offense” under § 4B1.1 until his appeal,
    we may not “set aside the district court’s sentence unless the court plainly erred in so designating
    [him].” United States v. Alexander, 
    543 F.3d 819
    , 823 (6th Cir. 2008) (citing United States v. Bostic,
    371 F.3d 865
    , 872–73 (6th Cir. 2004) (“If a party does not clearly articulate any objection and the
    grounds upon which the objection is based, when given [a] final opportunity [to] speak, then that
    party will have forfeited its opportunity to make any objections not previously raised and thus will
    face plain error review on appeal.”)). In demonstrating plain error,
            a defendant must show (1) that an error occurred in the district court; (2) that the
            error was plain, i.e., obvious or clear; (3) that the error affected [the] defendant’s
            substantial rights; and (4) that this adverse impact seriously affected the fairness,
            integrity or public reputation of the judicial proceedings.
    Alexander, 543 F.3d at 822 (quoting United States v. Koeberlein, 
    161 F.3d 946
    , 949 (6th Cir. 1998)
    (alteration in original)). We hold that the district court committed no error in sentencing Morelock.
            Section 4B1.1(a) of the Guidelines states:
            A defendant is a career offender if (1) [he] was at least eighteen years old at the time
            [he] committed the instant offense of conviction; (2) the instant offense of conviction
            is a felony that is either a crime of violence or a controlled substance offense; and (3)
            the defendant has at least two prior felony convictions of either a crime of violence
            or a controlled substance offense.
    Morelock does not dispute the district court’s findings on the first and second elements, but only
    whether he has two qualifying predicate offenses as required by § 4B1.1(a)(3). A “controlled
    substance offense” is defined as “an offense under federal or state law, punishable by imprisonment
    for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or
    dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent
    to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). Simple possession
    of a controlled substance, “without the proof beyond a reasonable doubt of the requisite intent to
    manufacture, import, export, distribute, or dispense is not a controlled substance offense.” United
    States v. Montanez, 
    442 F.3d 485
    , 488 (6th Cir. 2006) (quotation marks omitted).
           Section 1952 is a statute that encompasses both qualifying and non-qualifying conduct under
    § 4B1.2(b).2 Section 1952(a) criminalizes travel interstate in furtherance of “unlawful conduct,”
    which § 1952(b)(1) defines to include, inter alia, “any business enterprise involving . . . narcotics
    or controlled substances.” The Eleventh and First circuits have found that § 1952 convictions can
    qualify as predicate “controlled substance offenses” or “crimes of violence” under § 4B1.1 if the
    underlying conduct falls within the definitions of those terms contained in U.S.S.G. § 4B1.2. See
    United States v. Rosquete, 208 F. App’x 737, 740–41 (11th Cir. 2006) (per curiam) (finding a § 1952
    conviction involving the trafficking of narcotics to be a predicate offense under § 4B1.1); United
    States v. Winter, 
    22 F.3d 15
    , 19–20 (1st Cir. 1994) (finding that a § 1952 conviction for fixing horse
               Section 1952 states, in relevant part:
              (a) Whoever travels in interstate or foreign commerce or uses the mail or any facility
              in interstate or foreign commerce, with intent to—
                      (1) distribute the proceeds of any unlawful activity; or
                      (2) commit any crime of violence to further any unlawful activity; or
                      (3) otherwise promote, manage, establish, carry on, or facilitate the
                      promotion, management, establishment, or carrying on, of any unlawful
              and thereafter performs or attempts to perform—
                      (A) an act described in paragraph (1) or (3) shall be fined under this title,
                      imprisoned not more than 5 years, or both; or
                      (B) an act described in paragraph (2) shall be fined under this title,
                      imprisoned for not more than 20 years, or both, and if death results shall be
                      imprisoned for any term of years or for life.
    That section further defines “unlawful activity” to include “any business enterprise involving
    . . . narcotics or controlled substances.” 18 U.S.C. § 1952(b)(1).
    races is not a qualifying “crime of violence” under §§ 4B1.1 and 4B1.2). Therefore, if Morelock’s
    § 1952 conviction falls under this definition, it would be a qualifying predicate crime for purposes
    of § 4B1.1.
           In determining whether a prior conviction under a statute such as § 1952 is a “controlled
    substance offense,” we follow the approach laid out by the Supreme Court in Shepard v. United
    544 U.S. 13
     (2005). See United States v. Galloway, 
    439 F.3d 320
    , 324 (6th Cir. 2006). Thus,
    “[i]f . . . ‘the relevant statute of conviction does not supply a clear answer to [whether the defendant
    committed a controlled substance offense] the sentencing court may consult the indictment and either
    the jury instructions or plea agreement for the specific conduct with which the defendant was
    charged in order to appropriately characterize the offense.’” Id. at 323 (quoting Martin, 378 F.3d
    at 581) (alteration in original); see also Montanez, 442 F.3d at 489 (same). When considering the
    underlying conduct, the district court may not look only to the factual description of the offense
    contained in the PSR. See United States v. Wynn, 
    579 F.3d 567
    , 575–76 (6th Cir. 2009). In this
    case, the PSR was the only evidentiary record of the factual circumstances of Morelock’s § 1952
    conviction. However, because both Morelock’s trial and appellate counsel conceded that the conduct
    underlying his § 1952 conviction was drug trafficking, it was not plain error for the district court to
    conclude that the § 1952 conviction was a qualifying “controlled substance offense” under § 4B1.2
    and designate Morelock a career criminal under that provision. Such a designation neither affected
    Morelock’s substantial rights nor affected the fairness, integrity, or reputation of the sentencing
           Accordingly, we hold that the district court committed no plain error in finding Morelock’s
    § 1952 conviction to be a qualifying “controlled substance offense” under § 4B1.1 and affirm the
    district court’s designation of Morelock as a career offender.
           The district court’s “task is to impose ‘a sentence sufficient, but not greater than necessary,
    to comply with the purposes’ of § 3553(a)(2).” United States v. Klups, 
    514 F.3d 532
    , 536 (6th Cir.
    2008) (quoting 18 U.S.C. § 3553(a)). We review a district court’s sentencing determination “‘under
    a deferential abuse-of-discretion standard,’ for reasonableness,” United States v. Lalonde, 
    509 F.3d 750
    , 769 (6th Cir. 2007) (quoting Gall v. United States, 
    552 U.S. 38
    , 40 (2007)), “the district court’s
    factual findings for clear error[,] and its legal conclusions de novo,” United States v. Bolds, 
    511 F.3d 568
    , 579 (6th Cir. 2007) (citing Lalonde, 509 F.3d at 763). Reasonableness review of sentencing
    “has two components: procedural and substantive.” Bolds, 511 F.3d at 578 (citing Gall, 552 U.S.
    at 50). However, because Morelock only challenges the substantive reasonableness of his sentence
    on appeal, we need only address this prong.3 See Def.’s Br. at 8, 11.
             Morelock argues that his sentence is unreasonable for a number of reasons, several of which
    are readily dismissed. Given the preceding discussion, we need not again address his assertions that
    § 1952 was an improper predicate conviction for career-offender purposes and led to a
    miscalculation of the applicable Guidelines range. See Def.’s Br. at 11. Furthermore, we are
    jurisdictionally barred from reviewing Morelock’s appeal to the extent that he argues that the district
    court erred in declining to grant the government’s § 5K1.1 motion in full. See United States v.
    536 F.3d 571
    , 573 (6th Cir. 2008) (“When the district court grants a downward departure for
    substantial assistance and the defendant's claim on appeal goes only to the extent of the departure,
    this Court has no jurisdiction over the appeal.” (internal quotation marks and citation omitted)). We
    therefore limit our review to the “overall reasonableness of the sentence.” See United States v.
    561 F.3d 467
    , 475 n.3 (6th Cir. 2009).
            In evaluating substantive reasonableness, we examine “whether the length of the sentence
    is reasonable in light of the § 3553(a) factors.” United States v. Tate, 
    516 F.3d 459
    , 469 (6th Cir.
    2008). To that end, we must “take into account the totality of the circumstances, including the extent
    of any variance from the Guidelines range.” Gall, 552 U.S. at 51. “A sentence is substantively
    unreasonable where the district court ‘select[ed] the sentence arbitrarily, bas[ed] the sentence on
    impermissible factors, . . . or [gave] an unreasonable amount of weight to any pertinent factor.’”
    United States v. Recla, 
    560 F.3d 539
    , 549 (6th Cir. 2009) (alteration in the original) (quoting United
    States v. Webb, 
    403 F.3d 373
    , 385 (6th Cir. 2005)).
            In reviewing Morelock’s sentence, we “consider the extent of the deviation, but must give
    due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent
    of the variance.” Gall, 552 U.S. at 51. The record shows that the district court carefully considered
    each of the § 3553(a) factors and Morelock’s proposed justifications for a variance and gave detailed
    reasons for imposing the sentence that it did. The district court addressed Morelock’s age and
    medical history, his wife’s illness, and his productive work history. DE 130 at 29–33. It considered
    the extent of his cooperation with the authorities and whether the career offender status
    overrepresented his criminal history. Id. at 7–11, 22–23. The district court found that Morelock’s
    cooperation had been important, but had led only to the prosecution of two of his customers and two
    relatively unimportant couriers. Id. at 22–23. The district court cited the lack of prosecution of more
    important figures in the drug trade as its reason for not granting in full the government’s § 5K1.1
    motion to depart to a base offense level of 24. See id. at 23. The district court further determined
    that Morelock’s history of involvement in marijuana trafficking in Ohio over several decades
    demonstrated that he was likely to offend again and that previous lenient sentences had not provided
    a sufficient deterrent. Id. at 30. Nevertheless, the district court did grant a significant downward
    departure from a base offense level of 34 to 26, and imposed a sentence 44 months less than the
    sentence recommended by the PSR. Sentencing Recommendation at 1; DE 96 at 2; DE 130 at
    22–23, 33.
           Given the district court’s thorough consideration of the § 3553(a) factors, the arguments for
    a variance raised by Morelock, and the Guidelines range of 188 to 235 months for Morelock’s
    offense level and criminal history, we cannot conclude that the district court abused its discretion
    by sentencing Morelock to 144 months. Nor can we say that the sentence was arbitrarily imposed.
    It was only slightly harsher than the sentence sought by the government—and advocated by
    Morelock—in its § 5K1.1 motion. The district court found that Morelock was entitled to a
    downward departure for substantial assistance but not to the full extent urged in the motion. Id. at
    22–23. A eight offense-level downward departure rather than a ten-level departure is consistent
    with this reasoning and, therefore, not arbitrary. We consequently hold that the sentence imposed
    was reasonable and affirm on that ground.
           “A district court’s failure to grant a downward departure may only be reviewed upon appeal
    if the lower court erroneously believed that it lacked authority to grant such a departure as a matter
    of law.” United States v. Cook, 
    238 F.3d 786
    , 790–91 (6th Cir. 2001) (citing United States v.
    199 F.3d 329
    , 349 (6th Cir. 2000)). On appeal, we presume the district court’s awareness
    of its discretion to depart. See United States v. Byrd, 
    53 F.3d 144
    , 145 (6th Cir. 1995). Furthermore,
    “while we [have] held that a sentencing court may impose a sentence below the career offender
    guideline based on a policy disagreement with that guideline . . . it is certainly not required to do so.”
    United States v. Smith, No. 08-1494, 
    2009 WL 3486631
    , at *3 (6th Cir. Oct. 29, 2009) (citing United
    States v. Michael, 
    576 F.3d 323
    , 327 (6th Cir. 2009)) (emphasis in original).
            Morelock’s representation that the district court was unaware of its discretion to depart
    downward is inaccurate. The district court explicitly took notice of its discretion to depart from the
    Guidelines range produced by applying § 4B1.1 and equally clearly declined to do so. See DE 130
    at 4–11. After hearing arguments from both parties, the district court stated:
            Yes, the Court does have the authority, in some circumstances, to depart downward
            from the guidelines, but here the controlling question would be whether or not the
            criminal history category and the total offense level as calculated overrepresents the
            seriousness of the defendant’s criminal history. And I have no hesitation in
            concluding that it does not. Mr. Morelock seems to be the kind of offender that falls
            squarely within the intention of the guidelines in creating this special category. He
            is, indeed, a career offender, and he is properly categorized as such.
    DE 130 at 10. The record demonstrates, therefore, that Morelock’s assertion that the district court
    was unaware of its discretion is inaccurate, and, consequently, precludes appellate review of this
    claim. See Cook, 238 F.3d at 790–91.
            For the foregoing reasons, we affirm the sentence imposed by the district court.