## FIL ED May9, 201 3 DEBORAH S . HUNT, Clerk NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION

F ile Nam e: 13a0458n.06 No. 12-1072 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintif f-Appellee , v. RAYMOND R. MCMI CHAEL , Defendant-

Appellant

. ) ) ) ) ) ) ) ) ) ON AP PEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR THE EAS TERN DI STRI CT OF MI CHI GAN

O P I N I O N

BEF ORE: BO GGS and COL E, Circuit J udg es; QUI ST, District J udg e. * COL E, Circuit J udg e. De fenda nt-Appellant Ray

mond McMichae l appea ls the 150-mont h p rison sentenc e imposed by the district court on J anuar y 4, 2012, at McMichae l’s resen t en ci n g hear ing. We a ffirm. I

. On May 28, 2005, McMichae l pleade d g uilty to a char g e of conspiring to manufa cture 1,000

or more ma

rijuana pla

nts in viol ation of 21 U.S.C. §§ 841 and 846. Although he was subject to a twenty -y ear mandatory minimum sentenc e beca use of a 1970 felony

drug conviction, McMichae l

was sentenc ed to imprisonment for 204 months—seventeen y ear s—on J une 23, 2008. This sentenc e ref lected a d o wn war d depar ture as permitted under 18 U.S.C. § 3553(e) based on “substantial

The Honora

ble Gordon J

. Quist, Uni t ed S t ates District J udg e for the Western District of * Michig an, sitting by

desig nation.No. 12-1072

United States v. Ray mond Mc Michae l assistance ” to the g overnme nt in prosec uting another individual. This Court aff irmed the sentenc e on direc t appea l. United States v. Mc Michae l , 377 F. App’ x 529 (6th Cir. 2010). Subsequently , McMichae l obtained an order vacating a

nd expunging his 1970 felony drug conviction and moved to vaca te and expunge his 2008 sentenc e, pursuant to 28 U.S.C. § 2255. Be cause Mc M ic h a e l’ s p r io r d r u g c o n v ic ti o n h a d b e en vaca ted, the enhanc ement provision mandating

a twenty -y ear minimum sentenc e was no longe r applicable

. T h e go vernme nt and McMichae l stipulated that as a result the mandatory minimum sentenc e had been reduc ed from twenty y ear s to ten y ear s. On J anua ry 4, 2012, McMichae l was rese ntence d by the district court to a term of 150 months. Bec ause the district c ourt at rese ntencing did not g ive McMichae l a downwar d depar ture based on substantial assistance , the 2012 sentenc e was 30 months—two and a half y ear s—longe r than the 120 m o n t h s m an dated by statute. I t was, howeve r, four and a half y ear s shorter than the initial 2008 sentence. On appea l, McM i chael argues that the district court err ed at rese ntencing by declining to

rea pply the downward departure based on substantial assistance

. First, he argues t hat res judicata and law of the case doctrine pr eclude d the district c ourt from choosing not to apply the downwar d depar ture. Second, he argues that the sentenc e should be set aside for pros ec utorial and judicial vindictiveness. Finally , he argues th at h i s new sentenc e is proce durally and substantively

unrea sonable. We addr ess these issues in turn. I I

. At his orig inal sentenc ing hear ing, the district court grante d McMichae l a downwar d depar ture for substantial assistance in prosec uting another defe ndant. At rese ntencing , howeve r, the - 2 -No. 12-1072

United States v. Ray mond Mc Michae l district court deter

mined that McMichae l had not, in fac t, provided substantial as s i s t an ce to the g overnme nt. McMichae l the ref ore did not rec eive the same downwar d depar ture at rese ntencing

. On appea l, McM i ch ael argues that the fac tual deter mination reg arding substantial assistance had been made at his first sentenc ing hear ing, and the district cou rt wa s b ar re d by the law of the case doctrine f rom rec onsidering the issue. As a preliminary matter, the g overnme nt argues that to the extent that McMichae l argues that the district court should have gr anted a downwar d depar ture, thi s court has no jurisdiction to hear this appea l. We acknow ledg e that this Court has no authority to revie w a district judge ’s failure to depar t below the statutory minimum so long as the sentenc ing court was awa re that it had discretion to depar t. United States v. Tocco , 306 F.3d 279, 295 (6th Cir. 2002). McMichae l arg ues, howeve r, that whether o r not he provided substantial assistance is a predic ate issue which should be revie wable

on appea l. We ag ree . “[T] he propriety of the court’s rec onsideration of its prior finding ” is revie wed for abuse of discretion. E.E.O.C. v. United Ass’n of Journey men & Apprentices of the Plumbing & Pipefitting Indus. of t he U.S. &Canada, Local No. 120 , 235 F.3d 244, 250 ( 6th Cir. 2000). The law of the case doctrine posits that when a court decide s an issue, “that decision should continue to g overn . . . in subsequent stag es in the same case .” Arizona v. Calif ornia , 460 U.S. 605, 618 (1983). “I ssues decide d at an ear ly stag e of the litigati o n , ei t h er expli citly or by nece ssary infere nce from the dispositi on, constitute the law of the case .” E.E.O.C., 235 F.3d at 249 (interna l quotations omitted). The law of the case doctrine, howeve r, is not an “inexorable command,” id

. at 250, it guides a

court’s discr etion but “it is not i mproper f or a c ourt to depar

t from a pr ior holding

- 3 -No. 12-1072

United States v. Ray mond Mc Michae l if convince d that [t he prior holding] is clear ly err oneous and w ould w ork a manifest injusti ce,” id

. at 249. Wit h respe ct to issues traditional l y wi t hin a trial court’s discretion the law of the case doctrine is nece ssarily lenient: “The n at u re of the decision being rec onsidered

. . . also mandates g iving the

. . . court broad discretion

. . . . Gene rally , a trial judge has broad discretion on evidentiar y

ru l i ng s beca

use . . . [r] igor ously apply ing the law-of -the-c ase doctrine would underc ut the broa d discretion that tra ditionally has bee n acc orded a trial court.” United States v. Todd , 920 F.2d 399, 403 (6th Cir. 1990); see als o Un i t ed States v. W illiams , 728 F.2d 1402, 1406 (11th Cir. 1984) (e mphasizi ng the flexibi lity of the doctrine)

. As with evidentiar y decisions, district j u d ges ar e aff orded broad discretion in sentenc ing decisions. See Gall v. United S t a t es , 5 5 2 U.S. 38, 59-60 (2007). Whil e the doctrine exis ts in order to discourag e relitig ation of issues in a particula r case , it cannot be applied rig idly , espec ially to matters in which district judg es have wide discre tion. The district court, at the first sentenc ing hear ing, expressed skepticism reg arding the “substantial” nature of McMichae l’s assistance

. I t g rante d the motion for substantial assistance , howeve r, at the reque st of the g overnme nt. At the second hear ing, with the newly lowere d mandatory minimum sentenc e, the g overnme nt no longe r believed the motion was war rante d. There fore , it was within the discretion of the district cour

t to revisit its prior dec ision reg arding McMichae l’s substantial assistance. 1

We note that it is not clea r that the district court even had di s cr et i o n to apply the prior 1 substantial assistance decision without a motion from the g overnme nt. 18 U.S.C. § 3553(e) “imposes the condition of a Gover nment motion upon the district court’s authority to depar t.” W ade v. United States , 504 U.S. 181, 185 (1992). The g overnme nt did not rene w its motion for substantial assistance, there fore , the court may not have had the authority to g rant McMichae l a downwar d depar ture for substantial assistance at resente ncing

. - 4 -No. 12-1072

United States v. Ray mond Mc Michae l The doctrine of res judicata is similarly inapplicable here

. “The doctrine of res judicata, or claim prec lusion, provides that a final judgme nt on the merits of an action prec ludes the ‘par ties or their privies from relitigating issues that wer e or could have been r aised’ in a prior action.” Kane

v. Magna Mixe r C o . , 7 1 F.3d 555, 560 (6th Cir. 1995) (quoting Fede rated Dep’ t Stores, Inc. v. Mottie , 452 U.S. 394, 398 (1981))

. Her e, howeve r, the rese ntencing is a continuation of the previous action. There is no “ prior action” betwee n the parties to c onsider. Res judicata there fore does not apply

. Be cause the district court did not abuse its discretion in deter mining that McMichae l did not provide substantial assistance , McMichae l’s first claim fa ils. I I I

. At McMichae l’s rese ntencing hear ing, the g o v er n m en t asked that McMichae l rec eive the same sente nce, 204 months, that had been i mposed at hi s orig inal sentenc ing hear ing. This was a reque st for a sentenc e 84 months—7 y ear s—abo v e M cM i chael’s new mandatory minimum

. At McMichae l’s orig inal sentenc ing he rec eived a sent en ce three y ear s shorter than the mandatory minimum of 240 months—20 y ear s—beca use the g overnme nt had moved for a downwar d depar ture on the basis of substantial assistance . McMichae l now argues that the ne w sentenc e should be set

as ide for prosec utorial vindictiveness based on the gover nment’s failure t o move for a d o wn wa rd depar ture. We re view this question of law de novo. “To punish a person beca use he h as d o ne what the law plainly allows him to do is a due proce ss violati o n of the most basic sort, and for an ag ent of the State to pursue a course of action whose objec tive is to penalize a person’ s relianc e on his le g al rig hts is patently unconstitutional.” - 5 -No. 12-1072

United States v. Ray mond Mc Michae l Bordenkirc her v. Haye

s , 434 U.S. 357, 363 (1978) (citing North Carolina v. Pearce , 395 U.S. 711, 738 (1969) (opinion of Bla ck, J ., concur ring in part and dissenting in part)) (interna l quotations and citations omitted). Howeve r, “the Due Process Clause is n ot offe nded by all possibili ties of incre ased punishment

. . . but only by those that pose a rea listi c likelihood of vind i ct iveness.” Blackle dge v. Perry , 417 U.S. 21, 27 (1974) (internal q u o tations omitted). “A defenda nt alleg ing prosec utorial vindictiveness must show either actua l vindictiveness or a rea listi c likelihood of vindictiveness.” United States v. Roach , 502 F.3d 425, 443 (6th Cir. 2007) (interna l quotations and citation omitted). There is no evidenc e of actua l vindictiveness in this case . There fore , McMichae l must show a rea listi c likelihood of vindictiveness. A rea listi c likelihood of vindictiveness is shown by demonstrating a prosec utor’s “stake in deter ring the exercise of a protec ted rig ht” and t he

unrea sonablene ss of the prosec utor’s conduct. Id

. (quoting United States v. Poole ,407 F.3d 767, 774 (6th Cir. 2005)); see also United States v. Andrews , 633 F.2d 449, 454 (6th Cir. 1980). McMichae l is unable to make this showing

. Even if McMichae l could demonstrate the g overnme nt’s “stake ” in this case , he cannot show t h at t h e prosec utor acte d unrea sonably

. I t is evident from the rec ord that the prosec utor fe l t McMichae l’s newly expunged 1970 felony conviction should be taken into acc ount at rese ntencing and ther efor e did not believe Mc Michae l’s sentenc e should be re duced a ny further : [P ROSECUTOR] : Now, what I ’m try ing to g et acr oss, J udg e, is that even though the g uideline rang e here is the statutory minimum of 120 months, there are g ood rea sons not to impose a sentenc e of 120 month s . A s entenc e of 120 months would be require d of a defe ndant in Mr.McMicha el’s position who had not been arr ested at all in 1970. But Mr. McMichae l was arr ested in 1970, serve d a term of imprisonment. He was clea

rly —he admits he was involved with marijuana

. He is just denying now that his conviction was validly imposed. - 6 -No. 12-1072

United States v. Ray mond Mc Michae l

McMichae l argues that the prosec utor’s failure to seek a downwar d depar ture for substantial assistance demonstrates that he was acting vindictively

. Howeve r the transcr ipt makes it clea r that the prosec utor believed that the new statutory minimum was too low g iven McMichae l’s admissions to the 1970 activity

—an arg ument which is e ntirely permissible and rea sonable at sentenc ing. See United States v. W

atts , 519 U.S. 148, 154-56 (1997); United States v. Milton , 27 F.3d 203, 208-09 (6th Cir. 1994) (holding that a sentenc ing court may consider all rele vant offe nses during sentenc ing including conduct for which a defe ndant has been acquitted)

. I n the prosec utor’s view, the statutory minimum h ad b ee n l o we red but no rele vant fac ts had chang ed about McMichae l since the first sentenc ing hear ing. Given that the prosec utor made clea r his belief that the new statutory minimum

was not appropr iate, he was not unrea sonable to reque st, based on the 1970 offe nse, that a sentenc e iden t i cal to the orig inal sentenc e be imposed. A prosec utor has discretion to deter mine when to

m o v e for a downwar d depar ture based on substantial assistance , subject only to constitutiona l limit ations. W

ade , 504 U.S. at 185-86. I f t h e p ro s ec u t o r did not believe McMichae l deser ved a lower sentenc e he was not unrea sonable to decline to rene w the motion for a downwar d depar ture. B e c a u s e M c M ic hael cannot demonstrate unrea sonablene ss he has failed to show a r e a li s ti c li k e li h o o d of vindictiveness. I V. McMichae l also argues that the district court’s ref usal to g rant a downwar d depar ture based

on substantial assistance violated his Fifth Am endment due proce ss rig hts beca use it had the appe ar an ce of judicial vindictiveness. This argument also fails. A presumption of judicial - 7 -No. 12-1072

United States v. Ray mond Mc Michae l vindictiveness does not arise when a defe ndant i s rese ntence d to an equal or shorter term t han the orig inal sentenc e. United States v. Rodgers , 278 F.3d 599, 604 (6th Cir. 2002). I n 2012 McMichae l

was sentenc ed to 150 months, a reduc tion from his orig inal 204 month sentenc e. There fore no presumption of judicial vindictiveness a rises in this case. V. Finally , McMichae l arg

ues that the sentenc e imposed by the district court was proce durally and sub s t antively unrea sonable. We revie w both issues under the abuse of discretion standard. United States v. O’ Georgia , 569 F.3d 281, 287 ( 6th Cir. 2009). A. McMichae l argues that the sentenc e was proce durally unrea sonable beca use the district court failed to consider his substantial assistan ce an d i m p roperly focuse d on the harmful eff ects of marijuana

. A sentenc e is proce durally unrea sonable “if it is marke d by signific ant proce dural err or, such as failing to calc ulate (or improperly calc ulating) the Guidelines rang e, trea ting the Guidelines

as mandatory , failing to consider the § 3553(a) fac tors, selec ting a sentenc e based on clea rl y

err oneous fac ts, or failing to adequa tely explain the chosen sentenc e . . . .” United States v. Houston , 529 F.3d 743, 753 ( 6th Cir. 2008) (quoting Gall , 552 U.S. at 51) (inter nal quotations omitt ed). The district court had no obliga tion to g ive McMichae l a downwar d depar ture for substantial assi s t an ce . As noted above, the district court was not bound by its prior decision. The court discussed the issue during the rese ntencing hear ing, stated t h at i t d i d not fee l that McMichae l’s assi s t an ce was “substantial,” and noted that it had no authority to g rant the depar ture without a g overnme nt motion. W e find no a buse of discr etion here

.

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United States v. Ray mond Mc Michae l Fur thermore , the district judge did not rely on clea rly err oneous fac ts in his char acte rization of t h e h ar m ful eff

ects of marijuana

. Congr ess has classified marijuana as a S chedule I controlled substance under the Controlled Substances Act. See 21 U.S.C. § 812(c)

. “Schedule I drug s are cate g orized as such beca

use of their high potential for abuse, lack of any acc epted medical use, and absenc e of any acc epted safe ty for use in medically supervised trea tment.” Gonzales v. Raich , 545 U.S. 1, 14 (2005). Whil e the parties ag ree that there are disputes reg arding the impacts of marijuana , those disputes are not sufficie nt to find that the district court relied on plainly incorr ec t facts in sentenc ing Mc Michae l. B. McMichae l also arg

ues that the new sentenc e is substantively unrea sonable. “A sentenc e may be substantively unrea sonabl e if the district court selec ts the sentenc e arbitra rily , bases the

s en t ence on impermissible fac tors, fails to consider pertinent § 3553(a) fac tors or g iv es an

unrea sonable amount of weig ht to any pertinent fa ct o r . . . . For a sentenc e to be substantively

rea sonable, it must be proportionate to the s er i o u s n ess of the circ umstances of the offe nse and offe nder, and sufficie nt but not g reater than nece ssary , to comply with the purposes of § 3553(a) .” United States v. Vowell , 516 F.3d 503, 510, 512 (6th Cir. 2008) (interna l quotations, alterations and citations omitt ed). We do not find that the district court a b u s e d it s discretion by imposing a 150-month sentenc e. McMichae l a

rg ues that “[t] he existence of a 120 month mandatory

minimum sentenc e nece ssarily ref lects a le g islative finding tha t a 120 month sentence adequately ref lects the ser iousness

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United States v. Ray mond Mc Michae l of the offe nse and provides just p u n i s h m en t
. ” One hundred twenty months, howeve r, is only the minimum sentenc e and does not provide for “just punishment” in a ll c ircumstance s. When taking into acc ount the § 3553(a) fac tors, a district court has discretion to enhanc e the sentenc e above the mandatory minimum to acc ount for the circ umstances of a particula r crime. Gall , 552 U.S. at 59-60. Her e, the district court gav e sufficie nt justification for imposing a sentenc e above the minimum

. The court noted that, unlike McMichae l’s co-de fenda nts who rec eived lower sentenc es, McMichae l was t he leader of the org anization dist ributing ma rijuana. The court a lso took note of the fac t that the marijuana at issue was particula rly potent, that McMichae l made a “whole lot of money ” fr om the enter

prise, and that McMichae l returne d to illega l drug sales afte r rec eiving a pardon on a previous drug cr i m e. The court also considere d the stable family life in which McMichae l was ra ised. On abuse- of-discr etion revie w, we will g ive “due defe renc e to the district c ourt’s rea soned and rea sonable decision that the § 3553(a) fac tors, on the whole, justified the sentenc e.” Vowell , 516 F.3d at 512 (quoting Gall , 552 U.S. at 59-60)( alterations omitted). The district court g ave adequate consideration to the § 3553(a) f actor s to justi fy

a sente nce 30 months above the Guidelines ra ng e. VI

. For the fore g oing r easons, the se ntence imposed by the district court is af

firmed.

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