United States v. Stratman

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 13, 2009
• Docket: 07-3271
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0022n.06 Filed: January 13, 2009

Nos. 06-4448, 06-4615, 07-3271, 07-3272

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT GEORGE LEBREUX (No. 06-4448), ) COURT FOR THE NORTHERN JAMIE MOORE (No. 06-4615), ) DISTRICT OF OHIO CLEMENT STRATMAN, III (No. 07-3271), and ) JOHN ROBERT SHREWDER (No. 07-3272), ) ) Defendants-Appellants. )

Before: DAUGHTREY and KETHLEDGE, Circuit Judges, and RESTANI, Judge.*

RESTANI, Judge. In June 2002, the Federal Drug Enforcement Agency and the Ohio

Bureau of Criminal Identification and Investigation began investigating Michael Higgins,

Marteeastaye Edwards, and others involved in an enterprise that distributed “Club Drugs,” including

methamphetamine, crystal methamphetamine, and 3,4-methylenedioxymethamphetamine

(“MDMA”), otherwise known as “Ecstasy.” In 2006, Defendants-Appellants George Lebreux, Jamie

Moore, Clement Stratman, III, and John Robert Shrewder pled guilty before the United States

District Court for the Northern District of Ohio to offenses based on their involvement in the

* Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by designation. Nos. 06-4448, 06-4615, 07-3271, 07-3272 United States v. Lebreux, et al.

enterprise. Moore1 appeals his conviction, asserting a violation of the Double Jeopardy Clause of

the Fifth Amendment. Lebreux,2 Stratman,3 and Shrewder4 appeal their sentences. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We dismiss Lebreux’s appeal,

affirm Moore’s conviction, and affirm Stratman’s and Shrewder’s sentences.

I. LEBREUX

We dismiss Lebreux’s sentencing appeal because in his plea agreement, Lebreux expressly

waived his right to appeal his sentence if the sentence was within the range contemplated in the plea

agreement. The plea agreement contemplated a total offense level of 32 and stipulated that the

district court would determine Lebreux’s criminal history category, although the parties believed

Lebreux probably would have a criminal history category of II and an advisory range of 135 to 168

months. The district court ultimately set Lebreux’s total offense level at 32, with a criminal history

1 Moore pled guilty to conspiracy to distribute and to possess with the intent to distribute MDMA, a controlled substance, and to distribution of MDMA, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and the district court sentenced him to imprisonment for 24 months, supervised release for 3 years, and a $300 assessment. 2 Lebreux pled guilty to conspiracy to distribute and to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and the district court sentenced him to 151 months of imprisonment, supervised release for 5 years, and a $100 assessment. 3 Stratman pled guilty to conspiracy to distribute and to possess with the intent to distribute controlled substances and to distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and the district court sentenced him to 130 months of imprisonment, supervised release for 5 years, and a $300 assessment. 4 Shrewder pled guilty to conspiracy to distribute and to possess with the intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 and the district court sentenced him to 170 months of imprisonment, 3 years of supervised release, and a $100 assessment. -2- Nos. 06-4448, 06-4615, 07-3271, 07-3272 United States v. Lebreux, et al.

category of I, and sentenced Lebreux to 151 months of imprisonment, within the corresponding

advisory range of 121 to 151 months. The court “reviews the question of whether a defendant

waived his right to appeal his sentence in a valid plea agreement de novo.” United States v. Smith,

344 F.3d 479, 483 (6th Cir. 2003). “Criminal defendants may waive their right to appeal as part of

a plea agreement so long as the waiver is made knowingly and voluntarily.” United States v.

Swanberg, 370 F.3d 622, 625 (6th Cir. 2004). A waiver is made knowingly and voluntarily if the

defendant confirms understanding and agreement to the waiver after the district court has explained

the waiver. See id. at 626. Here, the District Court explained the waiver to Lebreux and asked

Lebreux if he understood it, and Lebreux responded, “[y]es.” (J.A. 550–51.) Because Lebreux

understood and agreed to his plea agreement, he knowingly and voluntarily waived his right to

appeal.

II. MOORE

Moore claims that his federal conviction violates the Double Jeopardy Clause because in

2003, he was convicted in an Ohio state court of trafficking in drugs based on the same conduct.

Because Moore did not raise a double jeopardy claim before the district court, we review his claim

for plain error. See United States v. Branham, 97 F.3d 835, 842 (6th Cir. 1996). Moore’s claim

lacks merit, as successive state and federal prosecutions based on the same conduct do not violate

the Double Jeopardy Clause because the state and federal governments are separate sovereigns. See,

e.g., Abbate v. United States, 359 U.S. 187, 193–96 (1959) (reaffirming United States v. Lanza, 260

U.S. 377 (1922)); United States v. Louisville Edible Oil Prods., Inc., 926 F.2d 584, 587 (6th Cir.

1991). Although the Supreme Court has suggested that two sovereigns may not prosecute for the

-3- Nos. 06-4448, 06-4615, 07-3271, 07-3272 United States v. Lebreux, et al.

same conduct if one sovereign was “a tool” of the other or one prosecution “was a sham and a cover

for” the other, Bartkus v. Illinois, 359 U.S. 121, 123–24 (1959), both sovereigns may prosecute if

their law enforcement authorities have merely cooperated with each other, see id. at 123; United

States v. Djoumessi, 538 F.3d 547, 550–51 (6th Cir. 2008). Moore does not allege either occurrence,

and the record indicates only cooperation between the federal and state law enforcement authorities.

The Double Jeopardy Clause therefore did not bar Moore’s federal prosecution.

III. STRATMAN

Stratman argues that he should have received a downward departure from the guideline range

or a sentencing variance based on sentencing entrapment or outrageous government conduct. He

claims that a government cooperating witness (“CW”), who posed as a former lawyer who could

provide assistance to Stratman’s incarcerated partner, induced Stratman to sell larger amounts of

drugs than he normally would. Stratman’s argument fails.

A district court’s sentencing determinations are reviewed for reasonableness under the abuse

of discretion standard. Gall v. United States, __ U.S. __, 128 S. Ct. 586, 594 (2007). We cannot

review a district court’s denial of a downward departure unless the court “(1) improperly computed

the guideline range; (2) was unaware of its discretion to depart downward from the guideline range;

or (3) imposed the sentence in violation of law or as a result of the incorrect application of the

Sentencing Guidelines.” United States v. May, 399 F.3d 817, 827 (6th Cir. 2005) (internal

quotations and citation omitted). Stratman does not allege that any of these exceptions are present.

Even if we could review the denial of the downward departure, we have never recognized

the theory of sentencing entrapment. See United States v. Gardner, 488 F.3d 700, 716–17 (6th Cir.

-4- Nos. 06-4448, 06-4615, 07-3271, 07-3272 United States v. Lebreux, et al.

2007); Sosa v. Jones, 389 F.3d 644, 648–49 (6th Cir. 2004). Nevertheless, the district court

explicitly considered Stratman’s theory of sentencing entrapment,5 but found it inapplicable to

Stratman’s case because Stratman admitted he was part of the drug conspiracy long before he met

the CW, had a central role in the drug enterprise, and sold large amounts of drugs for profit to many

people, not just the CW. There is also no indication in the record that Stratman demonstrated any

hesitation in supplying the large amounts of crystal methamphetamine to the CW.

Further, a review of the district court’s decision to not impose a lower sentence under 18

U.S.C. § 3553(a) reveals that Stratman’s sentence was reasonable. The district court found sufficient

evidence to support its guideline determination and addressed the section 3553(a) factors, but did

not sentence Stratman at the bottom of the guideline range because of his serious role in the drug

conspiracy, which included the large quantity of drugs he made available to a large number of people

in a wide geographic area. Accordingly, the district court imposed a reasonable sentence and did not

abuse its discretion in refusing to impose a reduced sentence based on sentencing entrapment,

outrageous government conduct, or other similar theories.

IV. SHREWDER

Shrewder argues that his sentence of imprisonment for 170 months violates the Eighth

Amendment because there were significant disparities between his sentence and the sentences of

other co-defendants, particularly his daughter, Tracy Shrewder, who was sentenced to 97 months of

5 The defense of entrapment or inducement cannot be established if the government merely provided the opportunity to commit the crime to a defendant predisposed to commit it, and the defendant took advantage of the opportunity. See Jacobson v. United States, 503 U.S. 540, 548–50 (1992); United States v. Kussmaul, 987 F.2d 345, 349 (6th Cir. 1993). -5- Nos. 06-4448, 06-4615, 07-3271, 07-3272 United States v. Lebreux, et al.

imprisonment, and because, as a seventy-year-old man in failing health, he will likely die in prison.

Upon de novo review of Shrewder’s constitutional sentencing challenge, see United States v.

Martin, 526 F.3d 926, 941 (6th Cir. 2008), we conclude it also fails.6

The Eighth Amendment forbids cruel and unusual punishments and “contains a ‘narrow

proportionality principle’ that ‘applies to noncapital sentences.’” United States v. Olan-Navarro, 350

F.3d 551, 554 (6th Cir. 2003) (quoting Ewing v. California, 538 U.S. 11, 20 (2003) (plurality

opinion)). This prohibition, however, applies only to sentences that are “grossly disproportionate”

to the crime. Id.

Shrewder has not demonstrated that his sentence was grossly disproportionate to the crime

he committed or to the sentences of his co-defendants. The district court spent considerable time

calculating the applicable guideline range. The district court found sufficient evidence to set

Shrewder’s base offense level at 38 and to apply a 2-level enhancement under U.S.S.G.

§ 2D1.1(b)(1) for possession of dangerous weapons and a 3-level enhancement under U.S.S.G.

§ 3B1.1(b) for Shrewder’s aggravated role in the conspiracy. The district court then applied a 3-level

reduction for acceptance of responsibility and a 1-level reduction for substantial assistance, resulting

in an offense level of 39 and a guideline range of 262 to 327 months’ imprisonment. The district

court then carefully considered the § 3553(a) factors, varied downward to an offense level of 35, and

6 The Government asserts that because Shrewder “did not specifically argue an Eighth Amendment violation” in the district court, plain error is the proper standard of review. (Appellee’s Br. 42.) Nevertheless, because the sentencing judge did not inquire as to whether the parties had objections to the sentence, see J.A. 994–95, Shrewder is not required to demonstrate plain error on appeal, see United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). -6- Nos. 06-4448, 06-4615, 07-3271, 07-3272 United States v. Lebreux, et al.

imposed 170 months of imprisonment, which was within the guideline range of 168 to 210 months

for that offense level.

Contrary to Shrewder’s contentions, the district court explicitly considered his age, mental

condition, and physical problems when applying the § 3553(a) factors and allowed a 4-level variance

because of these concerns. Notably, the district court highlighted the fact that this variance permitted

the court to place Shrewder in a range that made “sense along with the other people, who we have

been sentencing in your case. So you’re not completely out of whack.”7 (J.A. 991–92.) Shrewder’s

sentence was not identical to the other co-defendants, and specifically his daughter, because of the

evidence demonstrating his aggravated leadership role and firearm possession, which enhanced his

offense level. Accordingly, the district court imposed a sentence that was not grossly

disproportionate and reflected both the seriousness of Shrewder’s conduct and his personal

characteristics.8

V. CONCLUSION

Accordingly, we DISMISS Lebreux’s appeal, AFFIRM Moore’s conviction, and AFFIRM

Stratman’s and Shrewder’s sentences.

7 For example, Higgins also received 170 months of imprisonment. 8 To the extent that Shrewder may be making other challenges to the district court’s sentencing determination, these challenges, when reviewed for reasonableness under an abuse of discretion standard, would also fail. -7-