United States v. Michael Carlton

356 F. App'x 864
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 18, 2009
Docket08-1442
StatusUnpublished
Cited by5 cases

This text of 356 F. App'x 864 (United States v. Michael Carlton) 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. Michael Carlton, 356 F. App'x 864 (6th Cir. 2009).

Opinions

RALPH G. GUY, JR., Circuit Judge.

Defendant Michael Carlton pleaded guilty to conspiracy to distribute marijuana and received a sentence that included 204 months of incarceration. Carlton appeals, asserting that the district court (1) improperly considered the possibility of a future Fed.R.Crim.P. 35(b) motion in ruling on the government’s USSG § 5K1.1 motion, and (2) imposed an unreasonable sentence. He also claims ineffective assistance of counsel at sentencing. Finding [866]*866the district court’s downward departure to be an appropriate exercise of discretion within an overall reasonable sentence, we affirm. We decline to consider Carlton’s claim of ineffective assistance on direct appeal.

I

In November 2005, Arizona law enforcement officers stopped a car and arrested an individual transporting 309 pounds of marijuana to Michigan. The ensuing investigation led to the arrest of Carlton and six other individuals in April 2007. Carlton and codefendant Thomas Kent were identified as the leaders of a marijuana smuggling conspiracy. Their operation involved elderly couriers who were recruited in order to avoid police detection. The defendants included Carlton’s uncle, Ray Deck, Jr., with whom Carlton had spent time and smoked marijuana as a child, and who assisted in the recruitment of senior couriers. The seven codefendants were charged with conspiracy to distribute more than 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(B)(vii).

Carlton entered into a plea agreement with the government, and his plea was accepted by the district court in February 2008. The presentence report (PSR) issued by the probation department indicated a base offense level of 32. The PSR also enumerated adjustments as follows: 2 levels upward for possession of a firearm; 4 levels upward for Carlton’s role in the offense; 2 levels upward for obstruction of justice; and 3 levels downward for acceptance of responsibility, resulting in a level of 37. Carlton was placed in a criminal history category of II. The resultant guideline sentencing range was from 235 to 293 months of incarceration.

At the time of sentencing Carlton objected to two enhancements in the PSR— the firearm enhancement and the enhancement for his role in the offense. The district court overruled the objections. The government made a downward departure motion, based on substantial assistance, which the district court granted, adjusting Carlton’s offense level downward to a level of 34.1 This resulted in a guidelines sentencing range of 168 to 210 months in prison.

The district court chose a 204-month prison sentence, explaining:

Under the guidelines as calculated, the sentence range is 235 to 293 months. The 5K motion of the government recommends a departure of three levels, which still creates a significant range, 168 to 210 months at guideline level 34. And it’s the intended sentence of the Court to impose incarceration of 204 months in this case, which is within the three-level range recommended by the government but toward the higher end of that and not the lower end of it.
And the government isn’t clear on where it is in respect to where within the range other than to say it’s up to the Court. So let me talk a little bit about why I come up with 204 months.
And I think, as counsel probably have already run, if you look at the levels of offense 34, 35, 36, and 37, 204 months is available at either level 34 or level 35. It’s not available at 36 or 37. And so it’s of significant benefit to the defendant. But by the same token, it still leaves room, because there’s ongoing activities that the defendant might be useful in, either alone or with Mr. Kent, and if continued cooperation and effort results in even further prosecutions or penetration of even upper, higher layers of the conspiracy, that still is a possibility under the plea agreement and a Rule 35 motion.
[867]*867And let me say in general on the 5Ks, I think it’s significant and important that a defendant is willing to help make the case against a coconspirator, particularly one who is at the same level or arguably higher level in the conspiracy. That’s a significant benefit to the government, though in this case, given the evidence at least that I’ve seen so far, although it makes the government’s job easier, there was certainly sufficient evidence for the government to bring prosecution against somebody like Mr. Kent anyway. So it’s substantial assistance.

The court then speculated about the source of the $12 million earned or grossed by the leader of the conspiracy, Kent, and stated that

Mr. Kent later — but Mr. Carlton as well given his placement in the organization — have an opportunity to help penetrate that level of this organization. And that’s the kind of thing that I look at in deciding that an even more significant — I think three levels is significant — but an even more significant benefit is warranted.

Following the discussion of the appropriate downward departure, the district court moved to its “rationales” for its 204-month sentence. The court first described why it considered the elderly couriers to be “in some senses ... real victims here,” noting the couriers’ general vulnerability and financial distress. The district court went on to explain its sentence:

Another factor in terms of victims that we don’t often think about. You know, when a criminal organization is generating $12 million at least in earnings over a two-year period, those earnings aren’t running through the legitimate revenue system the way everybody’s else’s earnings are, and that means that honest taxpayers pick up the difference. $12 million in two years is a lot of money, it generates a lot of tax revenue that’s never seen in the system. And that’s a part of I think the sentencing considerations in 3553(a) when we talk about the nature, extent, and scope of the criminal activity. Somebody needs to pay for that.
There’s also the overall financial system that depends on currency being deposited in places like banks, investment banks, and other places that in turn leverage that to generate loans to legitimate businesses that create jobs and otherwise improve the overall economic status of the country. Again, any underground economy, any black market economy robs the system of that benefit because that money has got to be laundered somewhere. Probably not around here.
And, again, the nature and extent of the conspiracy extending like this over two years with significant dollar volumes has a very real impact on the economic system, not to mention the fact that people involved in it who might otherwise be engaged in useful activity aren’t.
And, of course, the more obvious victims of the crime are the users — including possibly Mr. Carlton here; I would agree with that — whose lives are impaired as a result of using this from a young age or at any age. That’s a part of the process as well.
I think that it is important to recognize that one of the things I see — not just in Mr.

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356 F. App'x 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-carlton-ca6-2009.