United States of America v. Raymond R. McMichael

FILED
May 9, 2013
DEBORAH S. HUNT, Clerk
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0458n.06
No. 12-1072
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAYMOND R. MCMICHAEL,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
O P I N I O N
BEFORE: BOGGS and COLE, Circuit Judges; QUIST, District Judge.*
COLE, Circuit Judge. Defendant-Appellant Raymond McMichael appeals the 150-month
prison sentence imposed by the district court on January 4, 2012, at McMichael’s resentencing
hearing. We affirm.
I.
On May 28, 2005, McMichael pleaded guilty to a charge of conspiring to manufacture 1,000
or more marijuana plants in violation of 21 U.S.C. §§ 841 and 846. Although he was subject to a
twenty-year mandatory minimum sentence because of a 1970 felony drug conviction, McMichael
was sentenced to imprisonment for 204 months—seventeen years—on June 23, 2008. This sentence
reflected a downward departure as permitted under 18 U.S.C. § 3553(e) based on “substantial
The Honorable Gordon J. Quist, United States District Judge for the Western District of*
Michigan, sitting by designation.

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assistance” to the government in prosecuting another individual. This Court affirmed the sentence
on direct appeal. United States v. McMichael, 377 F. App’x 529 (6th Cir. 2010).
Subsequently, McMichael obtained an order vacating and expunging his 1970 felony drug
conviction and moved to vacate and expunge his 2008 sentence, pursuant to 28 U.S.C. § 2255.
Because McMichael’s prior drug conviction had been vacated, the enhancement provision mandating
a twenty-year minimum sentence was no longer applicable. The government and McMichael
stipulated that as a result the mandatory minimum sentence had been reduced from twenty years to
ten years. On January 4, 2012, McMichael was resentenced by the district court to a term of 150
months. Because the district court at resentencing did not give McMichael a downward departure
based on substantial assistance, the 2012 sentence was 30 months—two and a half years—longer
than the 120 months mandated by statute. It was, however, four and a half years shorter than the
initial 2008 sentence.
On appeal, McMichael argues that the district court erred at resentencing by declining to
reapply the downward departure based on substantial assistance. First, he argues that res judicata
and law of the case doctrine precluded the district court from choosing not to apply the downward
departure. Second, he argues that the sentence should be set aside for prosecutorial and judicial
vindictiveness. Finally, he argues that his new sentence is procedurally and substantively
unreasonable. We address these issues in turn.
II.
At his original sentencing hearing, the district court granted McMichael a downward
departure for substantial assistance in prosecuting another defendant. At resentencing, however, the
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district court determined that McMichael had not, in fact, provided substantial assistance to the
government. McMichael therefore did not receive the same downward departure at resentencing.
On appeal, McMichael argues that the factual determination regarding substantial assistance had
been made at his first sentencing hearing, and the district court was barred by the law of the case
doctrine from reconsidering the issue.
As a preliminary matter, the government argues that to the extent that McMichael argues that
the district court should have granted a downward departure, this court has no jurisdiction to hear
this appeal. We acknowledge that this Court has no authority to review a district judge’s failure to
depart below the statutory minimum so long as the sentencing court was aware that it had discretion
to depart. United States v. Tocco, 306 F.3d 279, 295 (6th Cir. 2002). McMichael argues, however,
that whether or not he provided substantial assistance is a predicate issue which should be reviewable
on appeal. We agree. “[T]he propriety of the court’s reconsideration of its prior finding” is reviewed
for abuse of discretion. E.E.O.C. v. United Ass’n of Journeymen & Apprentices of the Plumbing &
Pipefitting Indus. of the U.S. & Canada, Local No. 120, 235 F.3d 244, 250 (6th Cir. 2000).
The law of the case doctrine posits that when a court decides an issue, “that decision should
continue to govern . . . in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605,
618 (1983). “Issues decided at an early stage of the litigation, either explicitly or by necessary
inference from the disposition, constitute the law of the case.” E.E.O.C., 235 F.3d at 249 (internal
quotations omitted). The law of the case doctrine, however, is not an “inexorable command,” id. at
250, it guides a court’s discretion but “it is not improper for a court to depart from a prior holding
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if convinced that [the prior holding] is clearly erroneous and would work a manifest injustice,” id.
at 249.
With respect to issues traditionally within a trial court’s discretion the law of the case
doctrine is necessarily lenient: “The nature of the decision being reconsidered . . . also mandates
giving the . . . court broad discretion . . . . Generally, a trial judge has broad discretion on evidentiary
rulings because . . . [r]igorously applying the law-of-the-case doctrine would undercut the broad
discretion that traditionally has been accorded a trial court.” United States v. Todd, 920 F.2d 399,
403 (6th Cir. 1990); see also United States v. Williams, 728 F.2d 1402, 1406 (11th Cir. 1984)
(emphasizing the flexibility of the doctrine). As with evidentiary decisions, district judges are
afforded broad discretion in sentencing decisions. See Gall v. United States, 552 U.S. 38, 59-60
(2007). While the doctrine exists in order to discourage relitigation of issues in a particular case, it
cannot be applied rigidly, especially to matters in which district judges have wide discretion. The
district court, at the first sentencing hearing, expressed skepticism regarding the “substantial” nature
of McMichael’s assistance. It granted the motion for substantial assistance, however, at the request
of the government. At the second hearing, with the newly lowered mandatory minimum sentence,
the government no longer believed the motion was warranted. Therefore, it was within the discretion
of the district court to revisit its prior decision regarding McMichael’s substantial assistance.1
We note that it is not clear that the district court even had discretion to apply the prior1
substantial assistance decision without a motion from the government. 18 U.S.C. § 3553(e)
“imposes the condition of a Government motion upon the district court’s authority to depart.” Wade
v. United States, 504 U.S. 181, 185 (1992). The government did not renew its motion for substantial
assistance, therefore, the court may not have had the authority to grant McMichael a downward
departure for substantial assistance at resentencing.
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The doctrine of res judicata is similarly inapplicable here. “The doctrine of res judicata, or
claim preclusion, provides that a final judgment on the merits of an action precludes the ‘parties or
their privies from relitigating issues that were or could have been raised’ in a prior action.” Kane
v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995) (quoting Federated Dep’t Stores, Inc. v.
Mottie, 452 U.S. 394, 398 (1981)). Here, however, the resentencing is a continuation of the previous
action. There is no “prior action” between the parties to consider. Res judicata therefore does not
apply.
Because the district court did not abuse its discretion in determining that McMichael did not
provide substantial assistance, McMichael’s first claim fails.
III.
At McMichael’s resentencing hearing, the government asked that McMichael receive the
same sentence, 204 months, that had been imposed at his original sentencing hearing. This was a
request for a sentence 84 months—7 years—above McMichael’s new mandatory minimum. At
McMichael’s original sentencing he received a sentence three years shorter than the mandatory
minimum of 240 months—20 years—because the government had moved for a downward departure
on the basis of substantial assistance. McMichael now argues that the new sentence should be set
aside for prosecutorial vindictiveness based on the government’s failure to move for a downward
departure. We review this question of law de novo.
“To punish a person because he has done what the law plainly allows him to do is a due
process violation of the most basic sort, and for an agent of the State to pursue a course of action
whose objective is to penalize a person’s reliance on his legal rights is patently unconstitutional.”
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Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (citing North Carolina v. Pearce, 395 U.S. 711,
738 (1969) (opinion of Black, J., concurring in part and dissenting in part)) (internal quotations and
citations omitted). However, “the Due Process Clause is not offended by all possibilities of
increased punishment . . . but only by those that pose a realistic likelihood of vindictiveness.”
Blackledge v. Perry, 417 U.S. 21, 27 (1974) (internal quotations omitted). “A defendant alleging
prosecutorial vindictiveness must show either actual vindictiveness or a realistic likelihood of
vindictiveness.” United States v. Roach, 502 F.3d 425, 443 (6th Cir. 2007) (internal quotations and
citation omitted). There is no evidence of actual vindictiveness in this case. Therefore, McMichael
must show a realistic likelihood of vindictiveness. A realistic likelihood of vindictiveness is shown
by demonstrating a prosecutor’s “stake in deterring the exercise of a protected right” and the
unreasonableness of the prosecutor’s conduct. Id. (quoting United States v. Poole,407 F.3d 767, 774
(6th Cir. 2005)); see also United States v. Andrews, 633 F.2d 449, 454 (6th Cir. 1980). McMichael
is unable to make this showing.
Even if McMichael could demonstrate the government’s “stake” in this case, he cannot show
that the prosecutor acted unreasonably. It is evident from the record that the prosecutor felt
McMichael’s newly expunged 1970 felony conviction should be taken into account at resentencing
and therefore did not believe McMichael’s sentence should be reduced any further:
[PROSECUTOR]: Now, what I’m trying to get across, Judge, is that even though the
guideline range here is the statutory minimum of 120 months, there are good reasons
not to impose a sentence of 120 months. A sentence of 120 months would be
required of a defendant in Mr.McMichael’s position who had not been arrested at all
in 1970. But Mr. McMichael was arrested in 1970, served a term of imprisonment.
He was clearly—he admits he was involved with marijuana. He is just denying now
that his conviction was validly imposed.
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McMichael argues that the prosecutor’s failure to seek a downward departure for substantial
assistance demonstrates that he was acting vindictively. However the transcript makes it clear that
the prosecutor believed that the new statutory minimum was too low given McMichael’s admissions
to the 1970 activity—an argument which is entirely permissible and reasonable at sentencing. See
United States v. Watts, 519 U.S. 148, 154-56 (1997); United States v. Milton, 27 F.3d 203, 208-09
(6th Cir. 1994) (holding that a sentencing court may consider all relevant offenses during sentencing
including conduct for which a defendant has been acquitted). In the prosecutor’s view, the statutory
minimum had been lowered but no relevant facts had changed about McMichael since the first
sentencing hearing. Given that the prosecutor made clear his belief that the new statutory minimum
was not appropriate, he was not unreasonable to request, based on the 1970 offense, that a sentence
identical to the original sentence be imposed. A prosecutor has discretion to determine when to
move for a downward departure based on substantial assistance, subject only to constitutional
limitations. Wade, 504 U.S. at 185-86. If the prosecutor did not believe McMichael deserved a
lower sentence he was not unreasonable to decline to renew the motion for a downward departure.
Because McMichael cannot demonstrate unreasonableness he has failed to show a realistic likelihood
of vindictiveness.
IV.
McMichael also argues that the district court’s refusal to grant a downward departure based
on substantial assistance violated his Fifth Amendment due process rights because it had the
appearance of judicial vindictiveness. This argument also fails. A presumption of judicial
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vindictiveness does not arise when a defendant is resentenced to an equal or shorter term than the
original sentence. United States v. Rodgers, 278 F.3d 599, 604 (6th Cir. 2002). In 2012 McMichael
was sentenced to 150 months, a reduction from his original 204 month sentence. Therefore no
presumption of judicial vindictiveness arises in this case.
V.
Finally, McMichael argues that the sentence imposed by the district court was procedurally
and substantively unreasonable. We review both issues under the abuse of discretion standard.
United States v. O’Georgia, 569 F.3d 281, 287 (6th Cir. 2009).
A.
McMichael argues that the sentence was procedurally unreasonable because the district court
failed to consider his substantial assistance and improperly focused on the harmful effects of
marijuana. A sentence is procedurally unreasonable “if it is marked by significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence . . . .” United States v. Houston,
529 F.3d 743, 753 (6th Cir. 2008) (quoting Gall, 552 U.S. at 51) (internal quotations omitted).
The district court had no obligation to give McMichael a downward departure for substantial
assistance. As noted above, the district court was not bound by its prior decision. The court
discussed the issue during the resentencing hearing, stated that it did not feel that McMichael’s
assistance was “substantial,” and noted that it had no authority to grant the departure without a
government motion. We find no abuse of discretion here.
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Furthermore, the district judge did not rely on clearly erroneous facts in his characterization
of the harmful effects of marijuana. Congress has classified marijuana as a Schedule I controlled
substance under the Controlled Substances Act. See 21 U.S.C. § 812(c). “Schedule I drugs are
categorized as such because of their high potential for abuse, lack of any accepted medical use, and
absence of any accepted safety for use in medically supervised treatment.” Gonzales v. Raich, 545
U.S. 1, 14 (2005). While the parties agree that there are disputes regarding the impacts of marijuana,
those disputes are not sufficient to find that the district court relied on plainly incorrect facts in
sentencing McMichael.
B.
McMichael also argues that the new sentence is substantively unreasonable. “A sentence
may be substantively unreasonable if the district court selects the sentence arbitrarily, bases the
sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an
unreasonable amount of weight to any pertinent factor . . . . For a sentence to be substantively
reasonable, it must be proportionate to the seriousness of the circumstances of the offense and
offender, and sufficient but not greater than necessary, to comply with the purposes of § 3553(a).”
United States v. Vowell, 516 F.3d 503, 510, 512 (6th Cir. 2008) (internal quotations, alterations and
citations omitted).
We do not find that the district court abused its discretion by imposing a 150-month sentence.
McMichael argues that “[t]he existence of a 120 month mandatory minimum sentence necessarily
reflects a legislative finding that a 120 month sentence adequately reflects the seriousness
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of the offense and provides just punishment.” One hundred twenty months, however, is only the
minimum sentence and does not provide for “just punishment” in all circumstances. When taking
into account the § 3553(a) factors, a district court has discretion to enhance the sentence above the
mandatory minimum to account for the circumstances of a particular crime. Gall, 552 U.S. at 59-60.
Here, the district court gave sufficient justification for imposing a sentence above the
minimum. The court noted that, unlike McMichael’s co-defendants who received lower sentences,
McMichael was the leader of the organization distributing marijuana. The court also took note of
the fact that the marijuana at issue was particularly potent, that McMichael made a “whole lot of
money” from the enterprise, and that McMichael returned to illegal drug sales after receiving a
pardon on a previous drug crime. The court also considered the stable family life in which
McMichael was raised.
On abuse-of-discretion review, we will give “due deference to the district court’s reasoned
and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Vowell, 516
F.3d at 512 (quoting Gall, 552 U.S. at 59-60)(alterations omitted). The district court gave adequate
consideration to the § 3553(a) factors to justify a sentence 30 months above the Guidelines range.
VI.
For the foregoing reasons, the sentence imposed by the district court is affirmed.
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