United States v. Kenneth Ferguson

518 F. App'x 458
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 2, 2013
Docket09-6297
StatusUnpublished
Cited by15 cases

This text of 518 F. App'x 458 (United States v. Kenneth Ferguson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kenneth Ferguson, 518 F. App'x 458 (6th Cir. 2013).

Opinions

OPINION

JAMES G. CARR, District Judge.

Defendant Kenneth Ferguson appeals his 200-month sentence on procedural and substantive grounds. The defendant also claims his attorney was constitutionally ineffective for failing to include in his argument for a downward variance a discussion of the unfairness of the 100:1 crack/powder cocaine ratio.

For the following reasons, we REVERSE AND REMAND for resentencing.

BACKGROUND

A. Presentence Investigation Report

1. Offenses of Conviction

The starting point for considering the defendant’s challenge to his sentence is the Presentence Investigation Report (“PSI”). According to the PSI, on November 25, 2008, the grand jury indicted the defendant and a codefendant, William Vondell Hickerson, in a nine-count indictment with conspiracy to sell and selling crack cocaine. The indictment named the defendant in Counts Six, Seven and Nine:

[459]*459Count Six: Sales on April 25, 2008, by Hickerson and defendant. A confidential informant went twice to Hickerson’s residence. The first time he bought 1.2 grams of crack from Hickerson. The second time the defendant sold him .6 grams of crack. (PSI ¶¶ 4, 12).1
Count Seven: Sales on April 29, 2008, by Hickerson and defendant. The Cl bought 1.1 grams of crack from Hickerson and later .4 grams from the defendant. (¶¶ 4, 13).
Count Nine: Conspiring with Hickerson and others from December, 2007 to April, 2008 to distribute crack cocaine. (¶ 5). Taking into consideration the sales to a Cl and the sales which would have generated the funds found during execution of a search warrant, the total drug quantity encompassed in the conspiracy was 11.36 grams of crack. (¶ 19).

Informants told the Coffee County, Tennessee, Sheriffs Department that Hicker-son “was running one of the largest crack cocaine operations” in the county. (¶ 14). Prior to the defendant’s arrest, he was “residing with” Hickerson “at Hickerson’s residence.” (¶ 56)2 According to Count 9 of the indictment, the defendant had begun his conspiratorial activities with his code-fendant by December, 2007 — within seven months of parole after serving over five years of a twenty-five year sentence for aggravated robberies and robbery (as described below). (¶¶ 5, 43).

2. Guideline Calculation

a. Without Career Offender Enhancement: 70-87 Months

As initially calculated, the defendant’s base offense level, based on 11.36 grams of crack cocaine and crediting him with a three-point reduction for acceptance of responsibility due to his guilty plea, was 21.

The defendant’s criminal history category was V. This was based on a computation of twelve criminal history points, which the Probation Officer assessed on the basis of:

3 pts. 1998 sale of two rocks of crack cocaine for $20.3
1998 criminal impersonation; possession of narcotic equipment; traffic offense.
1999 theft of property between $500 and $1000.
Driving without a license; evading.
Aggravated robbery with a weapon (four counts); robbery (one count).4
Add-on for committing the instant offenses while on parole
Add-on for committing the instant offenses less than two years after release from custody
Total 125

The sentences for the first four counted convictions were: 1) crack cocaine — three [460]*460years, with release from a boot camp after four and a half months, to probation, revoked for absconding;6 2) impersonation, etc. — forty-five days at 30%; 3) theft — ■ unknown; and 4) traffic offense — thirty days.

The four counts of aggravated robbery and one count of robbery resulted in a sentence of twenty-five years. The defendant’s sixteen-count indictment resulted from a month-long crime spree between December 15, 2000, and January 17, 2001. The indictment included twelve counts of aggravated robbery, two counts of “especially aggravated kidnapping,” one count of robbery, and one count of attempted robbery. The defendant pled to the indicated four counts of aggravated robbery and one count of robbery. He served five years and five and a half months until being paroled on May 9, 2007. Five months later a parole violator warrant issued. With an adjusted offense level of 21 and criminal history category of V, the defendant’s guideline range would have been 70-87 months.

b. With Career Offender Enhancement: 188-235 Months

Seventy to 87 months was not, however, the applicable range.

The probation officer applied the career offender enhancement under § 4B1.1 based on the 1998 two-rock crack cocaine and 2001 robbery convictions. This automatically increased the defendant’s base offense level to 34 and his criminal history category to VI. With a three-level reduction for acceptance of responsibility, the result was a guideline range applicable at sentencing of 188-235 months.

3. Other Pertinent Information in the PSI

The PSI referenced the defendant’s drug addiction. In addition, the PSI stated that the defendant reported he suffered from manic depression since he was a juvenile, and had been treated for depression, a suicide attempt and substance abuse in 1998. (¶ 59). The PSI does not otherwise confirm the self-reported manic-depression diagnosis.

During an earlier incarceration the defendant received his GED. (¶ 62). His employment record was sparse. The probation officer was unable to confirm his employment with the entities for whom the defendant had told the officer he had worked. (¶ 64). When arrested, the defendant had no income, assets or liabilities. (¶ 65).

B. Sentencing Proceedings

The defendant’s attorney filed a motion for downward departure on October 14, 2009. (R. 76). This filing, the Judge noted at the outset of the sentencing hearing, was “a couple of days late.” (Sentencing Tr. 2/lines 12-13). The Judge also correctly observed that the request, though styled as one for a downward departure, more accurately was for a variance from the Guideline sentence. (Id. at lines 10-11). The attorney’s motion asserted four grounds for deviating from the Guideline range, as enhanced by the career offender designation:

1. The small amount of crack that the defendant sold in 1998 (less than half a gram) and small amounts the defendant himself sold to the Cl in this case (one gram);
[461]*4612. That, despite the designation of four of his prior robbery offenses as aggravated, he only had a gun in one of the robberies, and that had been a BB gun;
3. The defendant did not have a leadership role in the offenses of conviction; and
4. His criminal history category of VI significantly overstated the seriousness of the defendant’s criminal history.

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Cite This Page — Counsel Stack

Bluebook (online)
518 F. App'x 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kenneth-ferguson-ca6-2013.