Case: 16-16313 Date Filed: 10/06/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT __________________________
No. 16-16313 Non-Argument Calendar __________________________
D.C. Docket No. 3:15-cr-00019-TCB-RGV-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNY GROVER,
Defendant - Appellant.
__________________________
Appeal from the United States District Court for the Northern District of Georgia __________________________
(October 6, 2017)
Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Kenny Grover appeals an 84-month sentence. Grover received his sentence
after pleading guilty to three counts of conspiracy to attempt to distribute Case: 16-16313 Date Filed: 10/06/2017 Page: 2 of 7
methamphetamine and three counts of extortion under color of official right. 21
U.S.C. §841(a), 18 U.S.C. 1951. Grover’s sentence was a downward variance
from the Guideline range. On appeal, he advances two arguments. First, he argues
that he should have received a sentence reduction based on the government’s
alleged sentencing factor manipulation. Second, he argues that the District
Court clearly erred in applying a role enhancement under U.S.S.G. § 3.1B1.1(c) to
his sentencing calculation. The first contention we dispose of on the facts. The
second we need not decide on the merits because any Guideline enhancement
errors were harmless and the sentence was substantively reasonable.
I.
We review a district court’s Guideline findings of fact for clear error and
will disturb them only if a review of all the evidence leaves this Court with “a
definite and firm conviction that a mistake has been committed.” United States v.
Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). The district court’s
factual findings in support of a sentencing enhancement must be affirmed if
plausible in light of the record as a whole. United States v. Ladson, 643 F.3d 1335,
1341 (11th Cir. 2011). The reasonableness of a final sentence is reviewed only for
abuse of discretion. United States v. Decampo, 573 F.3d 1091, 1096 (11th Cir.
2009). This Court reviews de novo the district court’s interpretation and
application of the Guidelines. United States v. Rhind, 289 F.3d 690, 693 (11th Cir.
2 Case: 16-16313 Date Filed: 10/06/2017 Page: 3 of 7
2002). Harmless error review applies to a district court’s Guideline calculations if
the court would have imposed the same sentence after considering the 18 U.S.C. §
3553(a) factors, regardless of any potential Guideline error. United States v.
Keene, 470 F.3d 1347, 1348–49 (11th Cir. 2006).
A.
The District Court did not err in declining to reduce Grover’s total sentence
under the doctrine of sentencing factor manipulation.
Sentencing factor manipulation occurs when the government manipulates a
sting operation to increase a defendant’s potential sentence. United States v. Haile,
685 F.3d 1211, 1223 (11th Cir. 2012). This doctrine “asks whether the
manipulation inherent in a sting operation, even if insufficiently oppressive to
support an entrapment defense, or due process claim, must sometimes be filtered
out of the sentencing calculus.” United States v. Lange, 862 F.3d 1290, 1296 (11th
Cir. 2017) (citation omitted). “[T]o bring sting operations within the ambit of
sentencing factor manipulation, the government must engage in extraordinary
misconduct.” United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir. 2007).
The standard a defendant must meet is therefore “high.” Id. A finding of
sentencing factor manipulation “would simply reduce the sentence applied to a
defendant’s conduct.” Id. at 1270. Although this Court recognizes sentencing
factor manipulation as a potential means of sentence reduction, we have never
3 Case: 16-16313 Date Filed: 10/06/2017 Page: 4 of 7
applied it to reduce a sentence nor otherwise countenanced the doctrine as a
legitimate defense. See Lange, 862 F.3d at 1296.
Grover argues the government wrongfully manipulated his sentencing
factors by unnecessarily increasing both the quantity of methamphetamine used in
the sting and the number of transactions in which he accepted bribes, noting the
government’s control over all facets of the case. This argument fails. Not only
have we never found government conduct “sufficiently reprehensible” to reduce a
sentence based on sentencing factor manipulation, we have uniformly rejected such
claims under similar circumstances. See, e.g., Ciszkowski, 492 F.3d at 1271
(noting that “[g]overnment-created reverse sting operations are recognized and
useful methods of law enforcement investigation” and finding that government’s
selection of firearm with silencer was not manipulation even though it resulted in
Guideline enhancement); United States v. Bohannon, 476 F.3d 1246, 1262 (11th
Cir. 2007) (government’s selection of “minor” victim for sting operation was not
manipulation despite resulting enhancement); United States v. Sanchez, 138 F.3d
1410, 1414 (11th Cir. 1998) (government’s selection of a large quantity of drugs
was insufficient to find manipulation); United States v. Govan, 293 F.3d 1248,
1251 (11th Cir. 2002) (government’s decision to make four purchases instead of
one, even when intended to strengthen the case for conviction, was not
manipulation); Lange, 862 F.3d at 1296–97 (conducting five transactions rather
4 Case: 16-16313 Date Filed: 10/06/2017 Page: 5 of 7
than one was not outrageous in light of the government’s interest in removing
firearms from the streets). This precedent presents a formidable obstacle Grover
cannot overcome. This is especially so when, as Special Agent Hosty testified, the
government had a legitimate interest in identifying all corrupt corrections officers
through repeated operations. Cf. Lange, 862 F.3d at 1297.
The defendant cannot show that the government’s actions were
extraordinary enough to warrant a sentence reduction based on factor
manipulation. The District Court therefore did not err, and accordingly we affirm
in this respect.
B.
We need not reach the question of whether the District Court properly
enhanced Grover’s offense level for playing a leadership role, because any error in
Guideline application would have been harmless.
As stated above, we review the imposition of an aggravating role
enhancement for clear error. See Rodriguez-Lopez, 363 F.3d at 1137.
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Case: 16-16313 Date Filed: 10/06/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT __________________________
No. 16-16313 Non-Argument Calendar __________________________
D.C. Docket No. 3:15-cr-00019-TCB-RGV-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNY GROVER,
Defendant - Appellant.
__________________________
Appeal from the United States District Court for the Northern District of Georgia __________________________
(October 6, 2017)
Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Kenny Grover appeals an 84-month sentence. Grover received his sentence
after pleading guilty to three counts of conspiracy to attempt to distribute Case: 16-16313 Date Filed: 10/06/2017 Page: 2 of 7
methamphetamine and three counts of extortion under color of official right. 21
U.S.C. §841(a), 18 U.S.C. 1951. Grover’s sentence was a downward variance
from the Guideline range. On appeal, he advances two arguments. First, he argues
that he should have received a sentence reduction based on the government’s
alleged sentencing factor manipulation. Second, he argues that the District
Court clearly erred in applying a role enhancement under U.S.S.G. § 3.1B1.1(c) to
his sentencing calculation. The first contention we dispose of on the facts. The
second we need not decide on the merits because any Guideline enhancement
errors were harmless and the sentence was substantively reasonable.
I.
We review a district court’s Guideline findings of fact for clear error and
will disturb them only if a review of all the evidence leaves this Court with “a
definite and firm conviction that a mistake has been committed.” United States v.
Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004). The district court’s
factual findings in support of a sentencing enhancement must be affirmed if
plausible in light of the record as a whole. United States v. Ladson, 643 F.3d 1335,
1341 (11th Cir. 2011). The reasonableness of a final sentence is reviewed only for
abuse of discretion. United States v. Decampo, 573 F.3d 1091, 1096 (11th Cir.
2009). This Court reviews de novo the district court’s interpretation and
application of the Guidelines. United States v. Rhind, 289 F.3d 690, 693 (11th Cir.
2 Case: 16-16313 Date Filed: 10/06/2017 Page: 3 of 7
2002). Harmless error review applies to a district court’s Guideline calculations if
the court would have imposed the same sentence after considering the 18 U.S.C. §
3553(a) factors, regardless of any potential Guideline error. United States v.
Keene, 470 F.3d 1347, 1348–49 (11th Cir. 2006).
A.
The District Court did not err in declining to reduce Grover’s total sentence
under the doctrine of sentencing factor manipulation.
Sentencing factor manipulation occurs when the government manipulates a
sting operation to increase a defendant’s potential sentence. United States v. Haile,
685 F.3d 1211, 1223 (11th Cir. 2012). This doctrine “asks whether the
manipulation inherent in a sting operation, even if insufficiently oppressive to
support an entrapment defense, or due process claim, must sometimes be filtered
out of the sentencing calculus.” United States v. Lange, 862 F.3d 1290, 1296 (11th
Cir. 2017) (citation omitted). “[T]o bring sting operations within the ambit of
sentencing factor manipulation, the government must engage in extraordinary
misconduct.” United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir. 2007).
The standard a defendant must meet is therefore “high.” Id. A finding of
sentencing factor manipulation “would simply reduce the sentence applied to a
defendant’s conduct.” Id. at 1270. Although this Court recognizes sentencing
factor manipulation as a potential means of sentence reduction, we have never
3 Case: 16-16313 Date Filed: 10/06/2017 Page: 4 of 7
applied it to reduce a sentence nor otherwise countenanced the doctrine as a
legitimate defense. See Lange, 862 F.3d at 1296.
Grover argues the government wrongfully manipulated his sentencing
factors by unnecessarily increasing both the quantity of methamphetamine used in
the sting and the number of transactions in which he accepted bribes, noting the
government’s control over all facets of the case. This argument fails. Not only
have we never found government conduct “sufficiently reprehensible” to reduce a
sentence based on sentencing factor manipulation, we have uniformly rejected such
claims under similar circumstances. See, e.g., Ciszkowski, 492 F.3d at 1271
(noting that “[g]overnment-created reverse sting operations are recognized and
useful methods of law enforcement investigation” and finding that government’s
selection of firearm with silencer was not manipulation even though it resulted in
Guideline enhancement); United States v. Bohannon, 476 F.3d 1246, 1262 (11th
Cir. 2007) (government’s selection of “minor” victim for sting operation was not
manipulation despite resulting enhancement); United States v. Sanchez, 138 F.3d
1410, 1414 (11th Cir. 1998) (government’s selection of a large quantity of drugs
was insufficient to find manipulation); United States v. Govan, 293 F.3d 1248,
1251 (11th Cir. 2002) (government’s decision to make four purchases instead of
one, even when intended to strengthen the case for conviction, was not
manipulation); Lange, 862 F.3d at 1296–97 (conducting five transactions rather
4 Case: 16-16313 Date Filed: 10/06/2017 Page: 5 of 7
than one was not outrageous in light of the government’s interest in removing
firearms from the streets). This precedent presents a formidable obstacle Grover
cannot overcome. This is especially so when, as Special Agent Hosty testified, the
government had a legitimate interest in identifying all corrupt corrections officers
through repeated operations. Cf. Lange, 862 F.3d at 1297.
The defendant cannot show that the government’s actions were
extraordinary enough to warrant a sentence reduction based on factor
manipulation. The District Court therefore did not err, and accordingly we affirm
in this respect.
B.
We need not reach the question of whether the District Court properly
enhanced Grover’s offense level for playing a leadership role, because any error in
Guideline application would have been harmless.
As stated above, we review the imposition of an aggravating role
enhancement for clear error. See Rodriguez-Lopez, 363 F.3d at 1137. However,
“it is not necessary to decide guidelines issues or remand cases for new sentence
proceedings where the guidelines error, if any, did not affect the sentence.” Keene,
470 F.3d at 1349. Such an error is harmless if, assuming the Guidelines issue had
been decided in the defendant’s favor, (1) the district court would have imposed
the same sentence, and (2) the sentence imposed was reasonable in light of the §
5 Case: 16-16313 Date Filed: 10/06/2017 Page: 6 of 7
3553(a) factors. Because the District Court stated at sentencing that it “would have
sentenced this defendant to 84 months regardless of how [it] ruled on the
objections in this case[,]” the only remaining issue is whether that sentence is
reasonable.
Our review of a sentence for reasonableness is “deferential,” and places the
burden on the defendant to prove his sentence unreasonable in light of the record
and § 3553(a). Keene, 470 F.3d at 1350 (citation omitted). Although we are not
required to presume a sentence is reasonable because it falls within the Guideline
range, we normally expect a sentence within that range to be reasonable. See Rita
v. United States, 551 U.S. 338, 347, 127 S. Ct. 2456, 2462–63 (2007). We
consider the totality of the circumstances, including any variance from the
Guideline range. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)
(citing Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007)).
Here, Grover’s 84-month sentence constitutes an 84-month downward
variance below the low end of the Guideline range. Because of this downward
variance, and because we find the sentence otherwise reasonable under all the
circumstances,1 it cannot be said the District Court clearly erred. We therefore
1 The Appellee puts it well: “At the time of his offenses, Grover was a [Georgia Department of Corrections (“GDOC”)] correctional officer who accepted multiple bribe payments from a purported drug trafficker in return for his assistance with and protection of the delivery of eight kilograms of what he believed to be methamphetamine, all while wearing his GDOC uniform . . . . In short, Grover sold his badge to a drug dealer for personal profit.” 6 Case: 16-16313 Date Filed: 10/06/2017 Page: 7 of 7
affirm in this respect without addressing the merits of the Guideline enhancement
challenge.
For the above reasons, the District Court’s sentence is AFFIRMED.
Accordingly, the District Court stressed that the 84-month sentence was “necessary” and that “[t]his was a very serious crime, and it deserves serious time.” 7