United States v. Billie Mosley
Opinion of the Court
Billie Lou Mosley conspired with her husband and son to distribute oxycodone pills in violation of 21 U.S.C. § 846. While in federal custody awaiting sentencing, she also attempted to obtain marijuana in violation of 18 U.S.C. § 1791. She pled guilty to both charges.
Mosley’s presentence report (PSR) was thereafter amended five times. The Third Addendum to her presentence report recommended that the district court group
On appeal, the parties’ positions with respect to the calculation of Mosley’s guidelines range have changed as often as her PSR did. As to the grouping of Mosley’s offenses in particular, the government has offered no less than four different — and conflicting — explanations for the district court’s calculation of Mosley’s guidelines range. One position came in the government’s merits brief; another came in letter briefing requested by our court; another came at oral argument; and yet another followed in an unsolicited letter afterward. Mosley too has repeatedly shifted her arguments before our court, particularly with respect to her leadership enhancement. The result is a singularly confused record on appeal.
A predicate for our review of a sentence under 18 U.S.C. § 3742(f) is that the record allow for “meaningful appellate review.” Gall v. United, States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Absent such a record — such as, for example, when the district court does not “adequately explain the chosen sentence!,]” id. — a sentence is procedurally unreasonable. See United States v. Barahona-Montenegro, 565 F.3d 980, 985--86 (6th Cir. 2009). Here, the record does not allow us to determine the specific grounds on which the district court grouped Mosley’s offenses and otherwise determined her guidelines range. Those issues, moreover, involve a complicated interplay between numerous provisions of the guidelines. We therefore conclude, as we did in another recent case, that “a remand is warranted to reduce confusion and ensure correctness.” U.S. v. Sanders, 472 Fed.Appx. 376, 382 (6th Cir. 2012).
We vacate Mosley’s sentence on grounds that it is procedurally unreasonable, and remand her case for clarification of the district court’s reasoning with respect to its calculation of Mosley’s guidelines range and for any other proceedings the district court thinks appropriate.
Concurring Opinion
concurring in the judgment.
I agree with the majority that we should vacate Mosley’s sentence and remand the case for resentencing. However, I write separately to respectfully disagree with the majority’s rationale. The majority holds that Mosley’s sentence is procedurally unreasonable because the record — in their estimation — does not allow for a meaningful review of the district court’s calculation of Mosley’s Guidelines range. I disagree. In my view, the record is sufficiently developed, and it shows that Mosley’s sentence is procedurally unrea
I.
Billie Lou Mosley was indicted, along with her husband, Arnold Mosley, Jr., and her son, Arnold Mosley, III, for conspiring to distribute and distributing oxycodone in violation of 18 U.S.C. § § 841(a)(1) and 846.
After granting two continuances on the sentencing in Mosley’s conspiracy case because of the complications arising from the intervening contraband case, the district court consolidated her cases for sentencing purposes. The court explained that “sentencing ... Mosley in separate sentencing proceedings would create unwarranted sentencing disparities unless the Court varied upward on her separate sentences.” The court expressed concern that Mosley’s offenses should be grouped because the court had already done so with her son and there was “no reason to treat ... Mosley any differently than her co-defendant.” The court also added that grouping avoided unwanted sentencing disparities between Mosley and similarly-situated defendants nationwide.
The court grouped Mosley’s offenses under U.S.S.G. § 3D1.2(d) by adopting the probation department’s presentence investigation report in full.
Because the counts were grouped under § 3D1.2(d), pursuant to § 3D1.3(b), the base offense level for the group became
II.
Mosley argues that her sentence on the conspiracy charge is procedurally unreasonable because the district court miscalculated her Guidelines range by grouping this offense with the contraband offense under § 3D1.2(d). She explains that the charges should not have been grouped because offenses involving the § 2P1.2 Guideline — here, the contraband charge— are specifically excluded from grouping under § 3D1.2(d). See U.S.S.G. § 3D1.2(d) (“Offenses ... [specifically excluded from operation of this subsection are: [§ 2P1.2].”). The government disputes whether the contraband offense actually falls under § 2P1.2 and is therefore within the exclusion. The government’s argument — which tracks the presentence investigation report but adds a level of detail not found in the report — is that the contraband offense is “covered by” § 2D1.1 based upon the cross-reference in § 2P1.2(e)(l), which states that if “the object of the [contraband] offense was the distribution of a controlled substance, apply the offense level from § 2D1.1,” and the general cross-reference rule in § 1 B 1.5(c), which states that if “the offense level is determined by a reference to another guideline[,] the adjustments in Chapter Three (Adjustments) also are determined in respect to the referenced offense guideline, except as otherwise expressly provided.” The government concludes that because counts involving § 2D 1.1 expressly group under § 3D 1.2(d), see id. § 3D1.2(d) (“Offenses covered by the following guidelines are to be grouped under this subsection: [§ 2D1.1]”), and because both of Mosley’s offenses are “covered by” § 2D1.1, the district court properly grouped her offenses under this subsection.
We review a district court’s sentencing decision for reasonableness, which has both procedural and substantive components. United States v. Coleman, 664 F.3d 1047, 1048 (6th Cir. 2012). A district court commits an unreasonable procedural error by improperly calculating a defendant’s Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012) (“If the district court misinterprets the Guidelines or miscalculates the Guidelines range, then the resulting sentence is procedurally unreasonable.”). When a defendant challenges the district court’s calculation of the applicable Guidelines range, the court’s legal interpretations of the Guide
Given the peculiar circumstances of this case, it appears that the district court plainly erred by grouping Mosley’s offenses under § 3D1.2(d). The Guidelines instruct a sentencing court to group “closely related counts” involving “substantially the same harm” under § 3D1.2. U.S.S.G. §§ 3Dl.l(a)(l), 3D1.2. Section 3D1.2 contains four subsections, (a) through (d), each of which contain a different situational example of counts involving “substantially the same harm.” See id. § 3D1.2(a)-(d). Of these four situations, only the one found in subsection (d) is pertinent here because the government has conceded that subsections (a), (b), and (c) are inapplicable.
Under subsection (d), counts contain “substantially the same harm” if “the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense behavior is ongoing or continuous in nature and the offense guideline is written to cover such behavior.” Id. § 3D1.2(d). Expressly included under the subsection are offenses “covered by” § 2D1.1; expressly excluded are offenses under § 2P1.2. Id.
In this case, the district court did not address the express prohibition on grouping § 2P1.2 offenses under § 3D1.2(d). Section 2P1.2 applies to Mosley’s contraband offense because she was convicted under 18 U.S.C. § 1791. U.S.S.G.App. A. However, because the object of the offense was the distribution of marijuana, § 2P1.2(c)(l) instructs that the base offense level is determined under § 2D1.1.
The government unpersuasively avoids the exclusion of § 2P1.2 offenses under § 3D1.2(d) by insisting that Mosley’s contraband offense is actually a § 2D1.1 offense through a combined application of § 2P1.2(c)(l) and § lB1.5(c). This argument ignores both the “except as otherwise expressly provided” language in § lB1.5(c) and the unambiguous prohibition of grouping § 2P1.2 offenses under § 3D1.2(d). Moreover, I decline to adopt the over-reaching interpretation that is the necessary conclusion of the government’s position: all § 2P1.2 offenses involving the distribution of controlled substances are § 2D1.1 offenses for grouping purposes. Such an interpretation effectively rewrites the Guidelines to say something that they plainly do not. Under the circumstances presented, the district court clearly erred in grouping Mosley’s offense under § 3D1.2(d) because § 2P1.2 offenses are expressly and unambiguously excluded from grouping under that subsection.
The district court’s error is understandable given that the parties incorrectly assumed grouping was proper. However, it nevertheless affected Mosley’s substantial rights. Absent the grouping error, and before any acceptance of responsibility reductions are considered, the Guidelines sentencing range on the conspiracy charge would have been 63 to 78 months, not 97 to 121 months.
III.
For these reasons, I concur only in the judgment to vacate Mosley’s sentence and remand for resentencing.
. Unless otherwise indicated, all record citations are to E.D. Ky. docket sheet 7:ll-cr-00025-ART-EBA-2.
. The district court used the 2011 edition of the Guidelines manual in this case; all Guideline citations in this opinion are to that edition.
. Before oral argument, there was significant confusion regarding the parties’ exact positions on the grouping issue. Mosley originally argued that her counts do not group under any subsection of § 3D1.2. The government responded that they group under subsections (a), (b), and (c), but did not squarely argue grouping was proper under subsection (d), specifically noting that § 2P1.2 offenses are excluded from grouping under subsection (d). In response to the court's supplemental briefing question asking whether Mosley’s counts group under subsection (c) by operation of the cross-reference to this grouping rule in the second application note to § 2P1.2, the government changed its position, conceding that Mosley’s counts do not group under subsections (a), (b), or (c). However, it advanced a new argument that grouping was proper under subsection (d). The parties addressed the government’s new position at oral argument and with post-argument letter briefs. While there may have been some initial uncertainty, it is now clear that the parties dispute only whether Mosley's counts group under subsection (d).
. The base offense level for the conspiracy charge is 26. If Mosley’s counts are not grouped under § 3D 1.2(d), the 4-level leadership enhancement on the contraband charge has no effect on Guidelines range for the conspiracy charge, which is 63 to 78 months. U.S.S.G. Ch. 5, Pt. A, Sentencing Table. However, if her counts are grouped under § 3D1.2(d), pursuant to § 3D1.3(b), the base offense level for the group is the highest offense level of the counts in the group, which would be 26 on the conspiracy charge. Then, although the leadership enhancement arises only from her contraband charge, under application note three to § 3D 1.3, 4 levels are added to the base offense level of the group
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Billie Lou MOSLEY, Defendant-Appellant
- Cited By
- 1 case
- Status
- Unpublished