United States of America v. Brett L. Henderson (98-4087), David Nelms (98-4369)

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0103P (6th Cir.)
File Name: 00a0103p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
BRETT L. HENDERSON
(98-4087), DAVID NELMS
(98-4369),
Defendants-Appellants.
;>

1
Nos. 98-4087/4369
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 97-00098—George C. Smith, District Judge.
Submitted: March 8, 2000
Decided and Filed: March 23, 2000
Before: WELLFORD, SILER, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ON BRIEF: Brian E. Goldberg, DANA & PARISER,
Columbus, Ohio, William K. Fulmer, II, Erlanger, Kentucky,

-- 1 of 6 --

2 United States v. Henderson, et al. Nos. 98-4087/4369
for Appellants. Robyn R. Jones, ASSISTANT UNITED
STATES ATTORNEY, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Brett Henderson
and David Nelms pled guilty to conspiring to import cocaine
in violation of 21 U.S.C. § 963. Both are appealing their
sentences, claiming that their criminal history categories
overstate the seriousness of their past conduct. Because of
this, they argue that the district court erred when it denied
their motions for a downward departure from the United
States Sentencing Guidelines. Henderson also argues that the
district court erred when it assessed him with three criminal
history points, pursuant to U.S.S.G. § 4A1.1(a), for serving a
sentence in excess of one year and one month for a past
robbery conviction. The district court rejected Henderson’s
and Nelms’s arguments and found that their criminal history
categories adequately reflected their numerous past
convictions. For the reasons set forth below, we AFFIRM
the judgment of the district court.
I. BACKGROUND
In the summer of 1996, two brothers, Mark and Gary
Seawell, developed an organization to import cocaine from
Belize and Mexico into Columbus, Ohio for distribution.
From the summer of 1996 through the summer of 1997, the
Seawells hired other individuals, including Brett Henderson,
to recruit couriers for them. A courier would travel to
Chetamul, Mexico and receive a pair of tennis shoes with a
half kilogram of cocaine concealed in the sole of each shoe.
Upon receiving the shoes, a courier would place them on his
feet and wear them back to Columbus. Henderson and the
other recruiters would pick up the cocaine from their
respective couriers and deliver it to Gary Seawell for
distribution.

-- 2 of 6 --

10 United States v. Henderson, et al. Nos. 98-4087/4369
category that Henderson received with nine points. Thus,
even if Henderson’s argument had merit, the applicable
guideline sentencing range would have remained the same.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.
Nos. 98-4087/4369 United States v. Henderson, et al. 3
Nelms was involved in a cocaine shipment for the Seawells
in August of 1997. Instead of having couriers bring the drugs
back in their tennis shoes, this particular shipment was sent by
mail from Belize to Columbus. The United States Customs
Service, however, intercepted this shipment and made a
controlled delivery to one of Nelms’s co-conspirators. Gary
Seawell then instructed this co-conspirator to give the cocaine
to another co-conspirator named Richard Meighan. When
Meighan arrived to pick up the package of cocaine, Nelms
was with him. Upon being approached by the police, Nelms
fled. Nelms was ultimately arrested. The box in which the
cocaine had been shipped was recovered from the location
where Nelms had attempted to hide it during the chase.
Subsequent investigation further revealed that Nelms had
distributed cocaine for the Seawells in the past and was
expecting to receive a portion of the cocaine delivered in the
August shipment.
Shortly thereafter, Henderson and Nelms were indicted on
numerous drug charges. On December 24, 1997, pursuant to
separate plea agreements, they each pled guilty to conspiring
to import cocaine in violation of 21 U.S.C. § 963. Prior to
sentencing, the government filed motions, pursuant to
U.S.S.G. 5K1.1, seeking downward departures for both
Henderson and Nelms based on their assistance in the
investigation of their co-conspirators. Because Henderson
had provided more assistance than Nelms, the government
recommended that the district court depart four offense levels
for Henderson and three offense levels for Nelms. The
district court granted the government’s motion and departed
accordingly.
In determining Henderson’s sentence, the district court
pointed out that he had twelve convictions as an adult. All of
them were not included in Henderson’s criminal history
computation due to the length of time that had passed since
some of them had occurred. Those that were utilized for
purposes of the computation included a conviction for
operating a motor vehicle while under the influence (OMVI)
in 1987, a robbery conviction in 1990, OMVI convictions in

-- 3 of 6 --

4 United States v. Henderson, et al. Nos. 98-4087/4369
1993 and 1995, a conviction for driving under a suspended
license in 1995, disorderly conduct convictions in 1996 and
1997, and a negligent assault conviction in 1997. Henderson
received a total of nine criminal history points that resulted in
a criminal history category of IV for purposes of sentencing.
These nine points were derived by assessing Henderson three
criminal history points for the 1990 robbery conviction, see
U.S.S.G. § 4Al.1(a), four points for the other numerous
convictions that he had, see U.S.S.G. § 4A1.1(c), and two
points for committing the instant offense while on probation,
see U.S.S.G. § 4A1.1(d).
Henderson made several objections to his criminal history
calculation. One of his primary contentions was that his
criminal history category overstates the seriousness of his past
conduct. In other words, because his past criminal history
consists of a number of “minor” violations, Henderson argued
that his criminal history category exaggerates the significance
of his past conduct. His other main argument was that he
should not receive the three point assessment for his 1990
robbery conviction because of his unsupported contention that
he was supposed to get “shock probation” after he had served
only six months in prison. Shock probation is a term of art
for early release that may be granted in the discretion of the
Ohio trial court. See Ohio v. Bistarkey, No. 90-CR-290, 1994
WL 456473, *2 (Ohio Ct. App. Aug. 19, 1994); O.R.C. §
2947.061. Because defendants are able to get out of prison
much sooner than under normal conditions, many state
defendants file motions for shock probation in Ohio.
The district court, however, concluded that Henderson’s
criminal history category was not overstated and pointed out
that the plain language of § 4A1.1 mandated that the court
add three points for the robbery conviction. It then departed
downward four offense levels because of Henderson’s
assistance to the government, which was a 70-month
reduction, and sentenced Henderson to 140 months of
imprisonment, followed by a 5-year period of supervised
release, and a $100 special assessment. Henderson timely
filed a notice of appeal.
Nos. 98-4087/4369 United States v. Henderson, et al. 9
Now, according to 4A1.1(a), three points are added for
each prior sentence of imprisonment exceeding one year
and one month. On May 30th of 1990, the defendant was
sentenced to 3-15 years of imprisonment for robbery. On
November 27th of 1991, the defendant received shock
probation. This term of imprisonment clearly fulfills the
criteria for a three-point enhancement under 4A1.1(a).
Therefore, the Court finds that the defendant is deserving
of the three criminal history points pursuant to that
section.
As pointed out by the district court, three points are added for
each prior sentence of imprisonment exceeding one year and
one month. See U.S.S.G. § 4A1.1(a). Henderson admits that
he served a sentence of one year and approximately six
months for his 1990 robbery conviction. Consequently,
§ 4A1.1(a) is clearly applicable.
Henderson, however, attempts to avoid the application of
§ 4A1.1(a) by arguing that his sentence on the robbery
conviction would have been less than one year and one month
had his defense lawyer in 1990 filed for “shock probation” in
a more timely fashion. This argument, however, is unavailing
because this circuit has held that “the federal sentencing
forum [is] not the proper forum for a constitutional challenge
to a prior conviction used to enhance a sentence.” Turner v.
United States, 183 F.3d 474 (6th Cir. 1999) (citing Custis v.
United States, 511 U.S. 485 (1994)).
Finally, even if the district court had accepted Henderson’s
argument and found that he should have served only six
months for his robbery conviction instead of a year and six
months, such a finding would not have changed his overall
criminal history category. Under § 4A1.1(b), two points
would have been assessed for the 1990 robbery conviction
because Henderson’s sentence would have exceeded sixty
days. If two points are used instead of three, then
Henderson’s total criminal history points would have been
eight instead of nine. Eight criminal history points, however,
still result in a criminal history category of IV, the same

-- 4 of 6 --

8 United States v. Henderson, et al. Nos. 98-4087/4369
convictions. The Court finds that these convictions do
not produce a criminal history category which
significantly over represents the defendant’s criminal
history and are an accurate prediction of the defendant’s
likelihood to commit further crimes. So, therefore, no
downward departure is warranted.
In addressing a similar argument from Nelms, the district
court further acknowledged its authority to depart downward:
[I]f reliable information indicates that the defendant’s
criminal history category does not adequately reflect the
seriousness of the defendant’s past criminal conduct or
the likelihood that the defendant will commit other
crimes, the Court may consider imposing a sentence and
departing from the otherwise applicable guideline range.
The example might be two misdemeanors close to a 10-
year prior instant offense. . . . The Court finds that a
departure in this case is unwarranted and due to the
constant violations and convictions that the defendant has
had, that the departure is not applicable under 4A1.3 or
any other paragraph of that report.
Because the district court was clearly aware of its discretion
to depart downward in both Henderson’s and Nelms’s cases,
its informed decision not to depart is unreviewable. See
United States v. Brown, 66 F.3d 124, 128 (6th Cir. 1995)
(“[A] lower court’s informed decision not to depart from a
valid guideline range is not reviewable.”).
C. The district court properly assessed three criminal
history points for the sentence that Henderson
received relating to his robbery conviction
Henderson also argues that he should not have been
assessed three criminal history points for serving over one
year and one month in prison for his robbery conviction. See
U.S.S.G. § 4A1.1(a). In addressing that argument, the district
court concluded as follows:
Nos. 98-4087/4369 United States v. Henderson, et al. 5
With respect to Nelms’s sentence, his record includes
juvenile convictions for receiving stolen property and
attempted drug abuse, neither of which were used in
calculating his criminal history. As an adult, Nelms has a
conviction for aggravated trafficking in drugs in 1991, four
drug convictions between the span of 1992 to 1993, and a
drug abuse conviction in 1995. Nelms’s six drug convictions
resulted in a criminal history score of thirteen under the
guidelines. He is also a “career offender” because, as an
adult, he had been convicted of two felony drug crimes prior
to his felony plea on the cocaine importation charge. See
U.S.S.G. 4B1.1. A total criminal history score of thirteen
combined with his career offender status resulted in a criminal
history category of VI.
At Nelms’s sentencing hearing, he argued that the offenses
that made him a career offender were committed when he was
eighteen and nineteen years old and involved only a small
amount of drugs. Thus, according to Nelms, his “prior history
[did] not accurately reflect the gravity of the career offender
status.” The district court, however, found that Nelms’s
criminal history category adequately reflected his past
conduct, especially considering the amount of violations that
he had committed. On the other hand, it did depart downward
three levels on account of Nelms’s assistance to the
government. This departure resulted in a thirteen month
reduction from the low end of Nelms’s original guideline
range and a sixty month reduction from the maximum
possible sentence that he could have received. After the
departure, Nelms’s offense level was twenty-eight and his
criminal history category was VI, which resulted in a
sentencing range of 140 to 175 months. Nelms was sentenced
to 175 months of imprisonment, followed by a 4-year period
of supervised release, and a $100 special assessment.
Because Nelms ran from the arresting officers, attempted to
conceal evidence, and had a lengthy criminal history, he was
sentenced at the high end of the guideline range. Nelms filed
a timely notice of appeal.

-- 5 of 6 --

6 United States v. Henderson, et al. Nos. 98-4087/4369
II. ANALYSIS
A. Standard of review
Both Henderson and Nelms argue that the district court
abused its discretion when it denied their motions for a
downward departure. The government counters by arguing
that the district court did not abuse its discretion because it
was aware that it had the authority to depart downward. All
of the parties cite Koon v.United States, 518 U.S. 81 (1996),
for the proposition that we review a district court’s decision
not to depart for an abuse of discretion. Koon, however, dealt
with a district court’s affirmative decision to depart
downward, which is inapplicable to a district court’s decision
not to depart from the sentencing guidelines. See United
States v. Brown, 98 F.3d 690 (2d Cir. 1996).
In Brown, the Second Circuit addressed Koon’s
applicability to a decision not to depart from the sentencing
guidelines and held the following:
[I]t is well established in this Circuit that a court’s
decision not to depart from the Guidelines is not
normally appealable. On appeal, however, Brown urges
that the Supreme Court’s recent decision in Koon . . .
requires that we apply an “abuse of discretion standard”
to a judge’s decision not to depart from a prescribed
Guidelines range. The Koon case, however, concerned
the appropriate standard for reviewing a judge’s decision
to depart. Because Koon did not involve a judge’s
decision not to depart, it does not affect the law of this
Circuit barring appeal where a district court decides not
to depart.
Id. at 692 (citations and parentheticals omitted).
We agree with the Second Circuit’s reasoning in Brown and
find that Koon does not alter this court’s precedent that
generally precludes appeals from decisions not to depart from
the guideline range. See United States v. Rudolph, 190 F.3d
720, 722 (6th Cir. 1999) (holding, in a post-Koon case, that
Nos. 98-4087/4369 United States v. Henderson, et al. 7
“[u]nless a district court mistakenly believes that it lacks the
legal authority to depart below the guidelines range, this court
may not review a district court’s decision not to depart.”);
United States v. Pruitt, 156 F.3d 638, 650 (6th Cir. 1998) (“A
district court’s discretionary refusal to depart downward is
generally not appealable, unless the district court mistakenly
believed it did not have legal authority to depart downward.”).
Consequently, the primary issue in the case before us is
whether the district court believed that it had the legal
authority to depart downward if it were to find that
Henderson’s and Nelms’s criminal history categories
overstated the seriousness of their past conduct.
Henderson also argues that the district court erred when it
assessed him with three criminal history points for his 1990
robbery conviction. With respect to sentencing
determinations, we review a district court’s factual findings
under the “clearly erroneous” standard, and review its legal
conclusions under the de novo standard. See United States v.
Waldon, __ F.3d __, 2000 WL 178107, at * 9 (6th Cir. Feb.
17, 2000).
B. The district court made an informed decision not to
depart downward in both Henderson’s and Nelms’s
cases, making those decisions unreviewable
At Henderson’s sentencing hearing, the district court
commented as follows regarding Henderson’s argument that
his criminal history category was overstated:
Regarding the criminal history being overstated and
asking for a downward departure under 4A1.3, as you
have argued here and in your paperwork, in that it
consists of minor violations. Section 4A1.3 states that if
the defendant’s criminal history category significantly
over represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will
commit future crimes, a downward departure may be
appropriate. In the instant case, the defendant between
1986 and 1997 had 12 convictions, some of which were
of a violent nature. They also included three OMVI

-- 6 of 6 --