United States v. Pope

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMOTHY POPE, Defendant-Appellant.

No. 21-1054

United States Court of Appeals, Sixth Circuit

June 8, 2022

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

Before: WHITE, BUSH, and READLER, Circuit Judges.

OPINION

CHAD A. READLER, Circuit Judge

Invoking provisions in the First Step Act, Timothy Pope asked the district court to reduce his 288-month sentence. By and large, Pope's efforts proved successful. The district court granted his motion, departed downward to better reflect Pope's criminal history, and resentenced Pope to 235 months, the bottom of the Guidelines range. At the same time the district court denied Pope's request for a downward variance. On appeal, Pope challenges that latter determination as procedurally unreasonable and asserts that his within-Guidelines sentence is substantively unreasonable. We affirm.

BACKGROUND

In 2006, Timothy Pope and an accomplice sold 7.27 grams of crack cocaine to a police informant. As officers approached, Pope fled the scene, precipitating a high-speed car chase through a residential neighborhood. Following Pope's arrest, a jury convicted him of conspiring to distribute cocaine base in violation of 21 U.S.C §§ 841(a)(1), 846. Based on the quantity of drugs and Pope's prior conviction for a felony drug offense, Pope was, under the law existing at the time he committed the underlying conduct, subject to a statutory maximum penalty of life imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006).

The presentence report classified Pope as a career offender under U.S.S.G. § 4B1.1. Based on that classification, Pope was assigned an offense level of 37 and placed in criminal history category VI. See § 4B1.1(b).

At sentencing, the district court found that category VI overstated the severity of Pope's criminal history. So the district court departed downward to criminal history category V, see U.S.S.G. § 4A1.3(b), yielding a Guidelines range of 324 to 405 months. From there, the district court, noting the reduced likelihood that Pope would reoffend following a lengthy prison term and characterizing the Guidelines range as "high," varied downward and imposed a 288-month sentence. We affirmed Pope's conviction and sentence. See United States v. Pope, 335 Fed.Appx. 598, 609 (6th Cir. 2009).

Pope later moved for a sentence reduction under § 404 of the First Step Act, which authorizes district courts to reduce certain sentences imposed for crack cocaine offenses. See First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222; see also United States v. Maxwell, 991 F.3d 685, 688 (6th Cir. 2021) (describing the First Step Act). While Pope's motion was pending, the Bureau of Prisons transferred Pope to home confinement under the CARES Act. See Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020); see also United States v. Alam, 960 F.3d 831, 836 (6th Cir. 2020) (discussing the CARES Act). The district court granted Pope's motion. Resentencing, however, would prove to be a mixed bag of sorts for Pope. On the one hand, the district court determined that Pope's offense level had dropped from 37 to 34, in accordance with U.S.S.G. § 4B1.1(b), due to the new, lower statutory maximum for Pope's crack cocaine offense. See 21 U.S.C. § 841(b)(1)(C) (subjecting Pope to a statutory maximum penalty of 30 years' imprisonment). On the other hand, as a career offender, Pope remained in criminal history category VI. See § 4B1.1(b). The district court again departed downward to category V, yielding a Guidelines range of 235 to 293 months. But the court denied Pope's request for a downward variance and imposed a 235-month sentence. This appeal followed.

ANALYSIS

A. Pope believes that his new sentence, although reduced, was nonetheless procedurally unreasonable because the district court erred in denying his request for a downward variance. To Pope's mind, that flawed determination turned on erroneous information about Pope's role in the conspiracy as well as consideration of an impermissible factor-the Bureau's decision to transfer Pope to home confinement.

The legal framework governing Pope's challenge is largely uncontested. "Procedural reasonableness requires the court to 'properly calculate the guidelines range, treat that range as advisory, consider the sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select the sentence based on facts that are not clearly erroneous, and adequately explain why it chose the sentence.'" United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019) (citation omitted). Ordinarily, we review the procedural reasonableness of a First Step Act sentence reduction for abuse of discretion. See United States v. Williams, 972 F.3d 815, 816 (6th Cir. 2020) (order); United States v. Foreman 958 F.3d 506, 515 & n.3 (6th Cir. 2020). Under that deferential standard, we will vacate a sentence "only if we are 'firmly convinced that a mistake has been made.'" United States v. Bailey, 27 F.4th 1210, 1214 (6th Cir. 2022) (citation omitted).

Some mistakes, however, are viewed differently than others. Case in point, "when a party has himself provoked the court to commit an error, that party may not complain of the error on appeal unless that error would result in manifest injustice." United States v. Demmler, 655 F.3d 451, 458 (6th Cir. 2011). This rule, known as the invited-error doctrine, honors principles of reliance and equity, which typically weigh against allowing a party to attack a judgment by shifting positions on appeal. See id. at 458-59; see also United States v. Montgomery, 998 F.3d 693, 697-99 (6th Cir. 2021) (distinguishing invited error from waiver and forfeiture).

1. We first consider whether the district court relied on erroneous information in denying Pope's request for a downward variance. According to Pope, a discrepancy exists between the district court's statements at his original sentencing and the opinion granting him a sentence reduction. At the original sentencing, the district court found that Pope "was properly scored as . . . having a minor role in the offense" for purposes of U.S.S.G. § 3B1.2(b), which instructs that a defendant's offense level drops by two "[i]f the defendant was a minor participant in any criminal activity." But in the opinion reducing Pope's sentence, the district court stated that it "already rejected Defendant's argument that he played a minor role."

We see no reversible error. At the outset, we note that any misstatement by the district court about its prior decision to grant Pope a minor-role reduction had no bearing on the offense level underlying his Guidelines range calculation. To see why, recall that Pope is deemed a career offender under § 4B1.1(a). That means his offense level is the greater of "the offense level for a career offender from the table in [§ 4B1.1(b)]" and "the offense level otherwise applicable." U.S.S.G. § 4B1.1(b). The district court relied on § 4B1.1(b)'s career offender table to determine that Pope's offense level was 34. So regardless whether § 3B1.2(b)'s minor-role reduction would have affected Pope's "otherwise applicable" offense level, that reduction "would have had no effect on the ultimate sentence." United States v. Cruz, 976 F.3d 656, 664 (6th Cir. 2020). Indeed, Pope himself concedes that his offense level would still be 34-the level the district court used to reduce his sentence-even if the district court had applied the minor-role reduction.

And, in any event, the district court's decisions regarding downward variances-both during Pope's original sentencing hearing and when reducing his sentence-did not turn on his role in the offense, minor or otherwise. At the original sentencing, to justify a downward variance, the district court cited the length of the Guidelines range then in effect and the risk that a Guidelines sentence would keep Pope in prison after he had ceased to pose a substantial danger of recidivism. Pope's minor role in the conspiracy played no part in the court's analysis. See R.88, PageID#705 (explaining that the minor-role reduction "does not make any difference, and it certainly doesn't make any difference in my sentence" given Pope's career offender status).

At resentencing, however, neither reason for Pope's original downward variance applied. The district court concluded that Pope's reduced sentence-over 50 months shorter than his original sentence-accounted for the recidivism concerns underlying the original sentence. And, as the district court further found, the now-reduced Guidelines range, which "reflects the conclusions of the Legislature that punishment for crack cocaine offenses have been disproportionate," means "a variance is not necessary to avoid excessive punishment." Nor did Pope's role in the conspiracy otherwise influence the district court's resentencing decision. The district court never referenced Pope's role while discussing the § 3553(a) sentencing factors. Rather, the lone mention of Pope's role is in a passage rejecting his suggestion that his offense level was too high:

The Court does not agree with Defendant that his offense level should be lower. The Court already rejected Defendant's argument that he played a minor role. The current guidelines calculations for converted drug weight [that are used in determining a non-career-offender offense level] are a factor that may be considered but are not controlling.

But, again, Pope's role in the offense did not influence his offense level because he is a career offender.

All told, § 3B1.2(b)'s minor-role reduction affected neither the...