RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Schray No. 03-1136 ELECTRONIC CITATION: 2004 FED App. 0308P (6th Cir.) File Name: 04a0308p.06 STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X CLAY, Circuit Judge. Defendant, Bryan Scott Schray, appeals a January 10, 2003 judgment of the United States Plaintiff-Appellee, - District Court for the Western District of Michigan, - - No. 03-1136 sentencing Defendant to 120 months imprisonment for v. - manufacturing more than one thousand marijuana plants, in > violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(vii). , For the reasons set forth below, we VACATE the sentence BRYAN SCOTT SCHRAY, - Defendant-Appellant. - and REMAND for re-sentencing. N BACKGROUND Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. On August 14, 2002, Defendant, represented by counsel, No. 02-00196—Richard A. Enslen, District Judge. entered into a written waiver of the indictment requirement for the charges of having manufactured more than one Submitted: June 25, 2004 thousand marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(vii). On the same day, Decided and Filed: September 10, 2004 Defendant entered into a plea agreement admitting that on or about June 17, 2002, in Ingham County, in the Western Before: KEITH and CLAY, Circuit Judges; O’MEARA, District of Michigan, Defendant committed the offenses with District Judge.* which he was charged.

_________________ On December 23, 2002, the government made a motion for a downward departure under U.S. SENTENCING GUIDELINES COUNSEL MANUAL (“U.S.S.G.”) § 5K1.1, based on Defendant’s substantial assistance to the government in the investigation ON BRIEF: Frank E. Stanley, Grand Rapids, Michigan, for of others. Defendant later made a separate motion for Appellant. B. Rene Shekmer, ASSISTANT UNITED downward departure based upon his rehabilitation, although no guidelines provision provided for such a departure. See 18 U.S.C. § 3553(b)(1) (allowing for departure from the guidelines, where “the court finds that there exists an * The Ho norable John Corbett O’M eara, United States District Judge aggravating or mitigating circumstance of a kind, or to a for the Eastern District of Michigan, sitting by designation.

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degree, not adequately taken into consideration by the separate range specified by the guidelines. At the sentencing Sentencing Commission in formulating the guidelines”). hearing, the district court stated: On January 10, 2003, the district court held a sentencing The [government’s] motion requests no reduction in the hearing. After hearing arguments in favor of the requested guideline scoring, but does request the Court relieve the departures, the district court declined to grant a downward mandatory minimum sentence of 120 months. The departure. On the same day, the district court entered request, if granted, would reduce the sentence from 120 judgment, sentencing Defendant to a prison term of 120 months to somewhere in the guideline range of about 63 months. to 78 months. On January 17, 2003, Defendant filed a timely notice of (J.A. at 149.)1 The figures in the district court’s statement appeal. derive from separate sources. The Probation Department’s Presentence Investigation Report found that the federal DISCUSSION sentencing guidelines would mandate a sentence in the range of sixty-three to seventy-eight months, based on Defendant’s Defendant’s appeal relates only to the denial of the criminal history category of II, and the total offense level of government’s motion for a downward departure. Defendant 25. There was a separate statutory mandatory minimum raises two issues. First, Defendant contends that the district sentence of 120 months, for Defendant’s offense, under court erred as a matter of law in concluding that its only 21 U.S.C. § 841(b)(1)(A)(vii). options were to deny the downward departure or to sentence Defendant within the federal sentencing guidelines range. The district court’s statement expressed an understanding Secondly, Defendant argues that the district court’s that the court faced a choice between the statutory mandatory articulated reasons for denying the departure were not minimum and the federal sentencing guidelines range. Under consistent with the sentencing guidelines provisions relating this view, if the district court had granted a downward to substantial assistance. Because we find Defendant’s first claim to be meritorious, we decline to address the second issue. 1 During the sentencing hearing, Defendant did not ob ject to this The sole issue for review, then, is whether the district court statement. However, the lack of an objection is of no consequence, erred as a matter of law in assessing its sentencing options. because Defendant never had an opp ortunity to object. Prior to sentencing, Defendant lacked notice of the district court’s understanding “A district court’s legal conclusions regarding the application of its sentencing options. At sentencing, Defenda nt was not given the of the sentencing guidelines are reviewed de novo.” United opp ortunity to object after the district court stated its sentencing decision. States v. Miggins, 302 F.3d 384, 390 (6th Cir. 2002) (citation F ED . R. C RIM . P. 51(b) (“If a party does not have an opportunity to object omitted). to a ruling or order, the absence of an objection does not later prejudice that party.”); United States v. Bo stic, 371 F.3d 865, 871-72 (6th Cir. 2004) Defendant argues that the district court wrongly assessed its (two prior cases in this Circuit have held that there wa s no oppo rtunity to object where “the aggrieved party did not have notice of the issue prior to sentencing options, stating that it was not authorized to issue district court’s pronouncement of the sentence, and the district court d id a sentence beneath the statutory minimum but above a not give the aggrieved party an opportunity to object after it pronounced the sentence”) (citing United States v. Breeding, 109 F.3d 308 , 310 (6th Cir. 19 97); United States v. Hickey, 917 F.2d 90 1, 906 (6th Cir. 1990)). No. 03-1136 United States v. Schray 5 6 United States v. Schray No. 03-1136

departure from the statutory mandatory minimum (120 The district court’s understanding of the law was contrary months), then the district court would have been prohibited to United States v. Stewart, 306 F.3d 295 (6th Cir. 2002). In from issuing a sentence greater than the guidelines range’s Stewart, the district court sentenced the defendant below the maximum (seventy-eight months). The district court stated statutory minimum but above the guidelines range–i.e., the that it had to choose between two alternatives: a sentence of district court granted a sentence of the sort that the district 120 months (which was ultimately imposed) or a sentence in court in the instant case had believed it was prohibited from the range of sixty-three to seventy-eight months (if the granting. The defendant appealed, arguing that–consistent departure were granted). The district court indicated that it with the district court’s understanding in the instant case–after lacked authority to impose a sentence in the intermediate the departure was granted, a sentence within the guidelines range of seventy-eight to 120 months. range was required. Id. at 331. But this Court held that it was permissible for the district court to sentence the defendant to The government argues that the district court’s statement anything beneath the statutory minimum; the term can exceed did not reflect the district court’s understanding of the law the guidelines range. Id. at 332 (“[W]e now . . . hold that the but, rather, merely restated the government’s proposed appropriate starting point for calculating a downward request for a departure; yet this argument is unpersuasive. departure under 18 U.S.C. § 3553(e) is the mandatory The government never requested a sentence within the minimum sentence itself.”). Applying Stewart to the instant guidelines range (of sixty-three to seventy-eight months); case, if Defendant’s motion for a downward departure had rather, the government simply requested a departure below been granted, then the district court would have been the 120-month statutory minimum.2 Moreover, the permitted to sentence Defendant to anything under 120 government does not have the ability to request anything months (i.e., the statutory minimum). In granting the more than a departure; the extent of the departure is governed downward departure, the district court would not have been by the district court’s discretion, as bounded by applicable forced to sentence Defendant within the range of sixty-three law. The government cannot impose conditions on a motion to seventy-eight months (i.e., the guidelines range that would for a departure. We have no reason to doubt that the district have applied, absent the statutory minimum). The district court’s statement reflected its own understanding of the law. court’s statement was contrary to Stewart. The question, then, becomes whether this Court has jurisdiction to review the district court’s denial of the downward departure. The statute governing appellate 2 (J.A. at 20) (the motion for a downward departure stated, “the jurisdiction contains language that covers the present case: Governm ent requests and recommendations release of the 10 year this Court has jurisdiction to determine whether a sentence statutory minimum”); (J.A. at 132) (at the sentencing hearing, the “was imposed as a result of an incorrect application of the government simply stated, “I . . . believe that the release of the mandatory sentencing guidelines.” 18 U.S.C. § 3742(a)(2). minimum would still provide sufficient punishment for this defendant.”); (J.A. at 174) (the Presentence Investigation Report (“PIR”) stated that based on the sentencing guidelines “the guideline range for imprisonment As stated in United States v. Smith, 278 F.3d 605, 609 (6th is 63 to 78 m onths. However, pursuant to U.S.S.G. § 5G1.1(c)(2), the Cir. 2002), “[a] district court’s denial of a downward guid eline for imprisonment becomes 120 months.”) (emphasis added); departure can be reviewed by this Court only if the district (J.A. at 176) (the PIR stated, “P ursuan t to the written plea agreement, the court incorrectly believed that it lacked the authority to grant government will determine if a downward departure will be recommended . . . .”). such a departure as a matter of law.” The government argues No. 03-1136 United States v. Schray 7 8 United States v. Schray No. 03-1136

that the district court’s awareness of its ability to impose a on the record as a whole, that the error was harmless, i.e., that sentence below the statutory minimum but above the the error did not affect the district court’s selection of the guidelines range was evinced by the district court’s citation of sentence imposed.” United States v. Hopkins, 295 F.3d 549, United States v. Snelling, 961 F.2d 93 (6th Cir. 1991) (per 553 (6th Cir. 2002) (citing Williams v. United States, 503 curiam). However, in Snelling, the relevant issue that this U.S. 193, 203, 112 S. Ct. 1112, 117 L. Ed. 2d 341 (1992)). Court dealt with was whether there is a lower limit on the sentence that the district court can impose where a departure There is no basis for a conclusion that the error was is granted; this Court ruled that the bounds of the pertinent harmless, in the instant case. In denying the motion for a statute and reasonableness impose a lower limit. Id. at 96-97. downward departure, the district court acknowledged that Yet the instant case deals with a different issue–the upper Defendant had provided assistance, though the district court limit on the sentencing range, where a departure is granted. ultimately concluded that Defendant’s extensive drug dealing (In the instant case, the district court wrongly perceived that and violent tendencies outweighed this consideration. (J.A. if it had granted a departure, then the upper limit on the at 149-50) (“In this case, the defendant’s assistance, although sentence would have been seventy-eight months.) This issue valuable to the plaintiff, provides strong reasons why the was not dealt with in Snelling; thus, the Stewart case (decided public should be protected from this individual.”). Hence, more than a decade after Snelling) correctly stated that the there is a possibility that the district court’s ultimate issue of the upper limit was “an issue of first impression in conclusion was influenced by its misunderstanding of its this Circuit.” Stewart, 306 F.3d at 331. Moreover, in the sentencing options. For instance, the district court may have instant case, the district court’s citation to Snelling could not felt that Defendant’s “valuable” assistance justified a possibly have shown awareness of the correct principle of departure to a sentence of 115 or 105 months, but no shorter law, because (as explained above) the district court’s sentence than that. In such a scenario, the district court would statement of law was contrary to Stewart. have thought that it was prohibited from granting what it deemed to be the most appropriate sentence, wrongly In the present case, the district court “incorrectly believed believing that it had to choose between the alternatives of a that [as a matter of law] it lacked the authority to grant . . . a 120-month sentence or a sentence within the range of sixty- departure,” in the form of a sentence beneath 120 months but three to seventy-eight months. The lengthier sentence would more than seventy-eight months. Smith, 278 F.3d at 609. have appeared to be the more appropriate of the options, This Court has jurisdiction to review the denial of a being closer to the district court’s optimal sentence. In light downward departure where the district court was aware of its of the possibility that the district court’s error influenced its authority to depart but was unaware of the full scope of this sentencing decision, there is no basis for us to conclude that authority–as was the case here, where the district court the error was harmless. Thus, a remand is required. erroneously believed that it would have lacked authority to issue a sentence above the sentencing guidelines range, if a CONCLUSION downward departure from the statutory minimum had been granted. For the aforementioned reasons, we VACATE the sentence and REMAND the case for re-sentencing in a manner In federal sentencing: “[o]nce the court of appeals has consistent with this opinion. decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes,