United States of America v. John Hise

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0725n.06
No. 08-6324
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN HISE,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
Before: KEITH, KENNEDY, and COOK, Circuit Judges.
COOK, Circuit Judge. As a result of his role in a methamphetamine conspiracy, John Hise
pleaded guilty to one count of conspiracy to manufacture methamphetamine. Hise’s presentence
report estimated a base offense level of thirty-six, a criminal history category of II, and an advisory
guidelines range of 151–188 months’ imprisonment. Before sentencing, and pursuant to Hise’s plea
agreement, the government moved for a section 5K1.1 substantial-assistance downward departure.
For his part, Hise requested a section 3B1.2 reduction for minimal participation in the conspiracy.
At sentencing, the district court granted the government’s motion, denied Hise’s motion, and
imposed 120 months’ imprisonment—the statutory minimum. Hise now appeals, contending that
the district court should have sentenced him below the statutory minimum for two reasons: (1) his
plea agreement included the government’s consent to a sentence below the statutory minimum, and
(2) his insignificant role in the conspiracy warranted a sentence reduction. We affirm.

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I.
Although a district court may grant a downward departure under U.S.S.G. § 5K1.1 for a
defendant’s substantial assistance, a section 5K1.1 motion “does not authorize a departure below the
statutory minimum.” United States v. McIntosh, 484 F.3d 832, 835 (6th Cir. 2007) (citing Melendez
v. United States, 518 U.S. 120, 124 (1996)). Only if “the government moves for such a departure
under either 18 U.S.C. §§ 3553(e) or 3553(f)” may a court depart below the statutory minimum. Id.
(citing Melendez, 518 U.S. at 125–26). Focusing then on the two sections that authorize a below-
minimum departure, we first eliminate section 3553(f) because Hise has more than one criminal
history point. See id. That leaves section 3553(e), which authorizes a court—upon motion by the
government—to impose a sentence below the statutory minimum for a defendant’s substantial
assistance. 18 U.S.C. § 3553(e). All agree that the government filed no such motion regarding Hise.
And although “specific language . . . or . . . an express reference to § 3553(e) is [not] necessarily
required before a court may depart below the statutory minimum,” the government must express, in
some way, “its desire or consent that the court depart below the statutory minimum before the court
may do so.” Melendez, 518 U.S. at 126 n.5.
Hise maintains that the government consented to a section 3553(e) downward departure here,
just as it did in United States v. McIntosh—the sole case upon which he relies—because, like the
McIntosh plea agreement, Hise’s plea agreement gives the district court complete discretion in
sentencing him. Not quite.

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An ambiguity drove the decision in McIntosh. There, the government agreed to consider
filing a section 5K1.1 motion for downward departure—a motion that, as discussed, would not have
authorized a below-minimum sentence. McIntosh, 484 F.3d at 836. Yet, the government also agreed
that the district court could exercise “complete discretion” in determining the extent of the
downward departure. Id. (internal quotation marks omitted). The tension between these two
provisions blurred the district court’s sentencing discretion, prompting the court to construe the
ambiguity in the defendant’s favor. Id. Unlike the McIntosh agreement though, Hise’s plea
agreement does not include the phrase “complete discretion.”
Having distinguished Hise’s sole authority, we are left with four aspects of Hise’s agreement
that he contends collectively grant the district court complete discretion in sentencing him so as to
authorize a departure below the statutory minimum under section 3553(e):
• the plea agreement does not foreclose the possibility of a section 3553(e) motion or otherwise
expressly limit the district court’s sentencing discretion;
• the district court “may impose any lawful term of imprisonment up to the statutory
maximum”; [R. 655, Plea Agreement ¶ 2(a)]
• “the United States may bring to the Court’s attention the nature, extent, and value of the
defendant’s cooperation so that it may be considered in determining a fair and appropriate
sentence under the facts of the case”; [id. ¶ 8] and
• “the sentence in this case will be determined by the Court after it receives the pre-sentence
report from the United States Probation Office and any information presented by the parties”
and “will be based upon the entire scope of the defendant’s criminal conduct, the defendant’s

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criminal history, and pursuant to other factors and guidelines as set forth in the Sentencing
Guidelines and the factors set forth in 18 U.S.C. § 3553.” [id. ¶ 11]
But even aggregating these aspects of his sentencing agreement fails to advance Hise’s cause. We
address each in turn.
First, it would have been a needless redundancy had the plea agreement expressly foreclosed
the possibility of a section 3553(e) motion or otherwise limited the district court to a sentence at or
above the mandatory minimum, because a sentence above the minimum is the default position.
Expressing this limitation would have just reiterated the status quo under Melendez—that a court
may not depart below the statutory minimum absent a motion under section 3553(e) or section
3553(f). See McIntosh, 484 F.3d at 835.
Second, though a “lawful” term of imprisonment could include a sentence below the statutory
minimum, such a departure is lawful only if the government first files one of the two specified
motions, or otherwise expresses its desire or consent to a departure below the statutory minimum.
See id.
Third, although the agreement authorizes “a fair and appropriate sentence” if the government
notifies the court of Hise’s cooperation, implicit in this authorization is a sentence’s lawfulness. And
the government’s consideration for Hise’s cooperation could come in the form of filing either a
section 5K1.1 motion or a section 3553(e) motion. The government opted for the motion that did
not permit a below-minimum departure.

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Finally, the fourth feature merely informs Hise of two standard sentencing procedures, neither
of which speaks to the district court’s sentencing discretion.
Simply put, even viewed cumulatively, Hise’s plea agreement cannot be read to include the
requisite feature under McIntosh—complete discretion in sentencing—so as to authorize a departure
below the statutory minimum.
II.
Hise also posits that the district court procedurally erred when it denied the motion to reduce
his sentence under U.S.S.G. § 3B1.2, given his comparatively insignificant role in the conspiracy.
Hise having received the statutory minimum sentence, no additional reduction could be granted by
the district court. Any alleged error in the calculation of his sentence is therefore harmless. See
United States v. Katzopoulos, 437 F.3d 569, 574 (6th Cir. 2006) (“Erroneous application of the
Guidelines in violation of the Sixth Amendment requires reversal unless the error is found to be
harmless.”).
III.
For these reasons, we affirm.

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