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Daily Court Reporter - News Multiple mistakes send drug case back for third resentencing


Multiple mistakes send drug case back for third resentencing

ANNIE YAMSON, Daily Reporter Staff Writer

A federal court of appeals recently ruled that sentencing mistakes at multiple court levels entitled an inmate convicted on drug conspiracy charges to a third sentencing hearing.

The case stemmed from the conviction of Lewis Powell who, in 2014, pleaded guilty to conspiracy to possess with intent to distribute heroin and crack cocaine and dealing in unlicensed firearms in the United States District Court for the Northern District of Ohio.

"This case is before is for a second time," Judge Raymond Kethledge wrote on behalf of a three-judge panel in the U.S. Court of Appeals for the 6th Circuit. "The district court determined that Powell was a career offender, which gave him a base-offense level of 34.

The court then applied a three-level reduction for acceptance of responsibility and a two-level reduction for substantial assistance, which gave Powell a final offense level 29 and a (U.S. Sentencing) Guidelines range of 151 to 188 months."

The district court sentenced Powell on the low end of his sentencing range to 155 months' imprisonment but on appeal, the 6th Circuit court held that Powell was not a career offender.

To determine if the error was harmless, the appellate court calculated Powell's offense level without the career-offender enhancement.

According to a presentence report, the recalculated offense level was 33 and, after applying the district court's reductions, the offense level was lowered to 28.

"But Powell's career-offender status had also prevented him from receiving a two-level reduction under Amendment 782 to the Sentencing Guidelines, which reduced the penalties for some drug offenses," Kethledge wrote. "We applied that reduction as well, which left Powell with a final offense level of 26 and a guidelines range of 120 to 150 months."

By the appellate court's initial calculation, the district court's error had caused Powell to receive an above-guidelines sentence, which meant the error was not harmless.

"We therefore vacated Powell's sentence and remanded the case 'to allow the district court to resentence Powell according to the proper guidelines calculations,'" Kethledge wrote. "Back in the district court, it eventually became clear that our calculation of Powell's guidelines range was wrong."

Although Powell was in fact sentenced according to a guidelines range that was too high - because he was not a career offender - the circuit court found that its calculation had two mistakes of its own.

"One found its origin in the presentence report: Powell's adjusted-offense level without the career-offender enhancement was 32, not 33 as stated in the report and as we assumed in the last appeal," Kethledge wrote. "The other mistake was fully our own: Powell was not in fact entitled to a two-level reduction under Amendment 782, because the base-offense level for his gun conviction was much higher than the level for his drug conviction."

The net effect was that Powell's base-offense level was one level higher than the appellate court thought and, on remand the district court and the government figured out as much. The lower court recalculated Powell's range as 130 to 162 months and sentenced him again to 155 months, this time near the high end of the range.

In his most recent appeal, Powell argued that when the district court recalculated his sentence, it exceeded the scope of the remand from the circuit court.

"Here, our opinion simply remanded the case 'for resentencing consistent with this opinion,'" Kethledge wrote. "That language, we have already held, effects a general remand."

Contrary to Powell's argument, the appellate panel held that its incorrect calculation of his guidelines range did not render its remand limited.

"We calculated Powell's range not to confine the proceedings on remand, but to determine whether the district court's mistake in the original sentencing - namely, its determination that Powell was a career offender - was harmless," Kethledge wrote. "Our calculation was accurate enough to show it was not."

Powell also argued in his appeal that the circuit court's recalculation of his guidelines sentencing range was the "law of the case" which bound the district court and gave it no authority to correct mistakes.

"But a general remand 'effectively wipes the slate clean' and 'gives the district court authority to redo the entire sentencing process,'" Kethledge wrote. "Hence this argument too is without merit."

When it came to Powell's final argument, however, the circuit court was on his side. Powell claimed that the district court's sentence of 155 months, near the top of his recalculated guidelines range, was unreasonable because the district court gave no reasons for imposing the sentence.

"True, as the government points out, the district court incorporated by reference its comments during the first sentencing hearing," Kethledge wrote. "But the court made those comments while imposing a sentence at the low end of Powell's guidelines range, not the high end."

The appellate panel held that the comments did not explain the court's decision to impose a sentence near the high end and that Powell's sentence on remand "was therefore procedurally unreasonable."

"We vacate Powell's sentence and remand the case for resentencing consistent with this opinion," Kethledge concluded.

Judges John Rogers and Damon Keith joined Kethledge to form the majority.

The case is cited United States v. Powell, case No. 15-4421.

Date Published: March 27, 2017


Copyright © 2017 The Daily Reporter - All Rights Reserved


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