NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0736n.06 No. 12-5564 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f - App ellee,

v. WILLIAM H. LO NG , Defendan t - Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM T HE UNI TED STATES DI STRICT COURT FOR THE EAS TERN DI STRI CT OF TEN

NESSEE

BEFORE: K

EITH , CLAY, and KETHLE DG E, Circuit Judges. DAMON J. KEITH, Circuit Judge

. Wil liam H. L ong appea ls the 135-month sentenc e he

rec eived afte r pleading g uilty to nineteen counts of extorti on under color of rig ht, 18 U.S.C. § 1951, six counts of m oney launder ing, 18 U.S.C. § 1956(a) (3)( A), one count of providing a firear m and ammunition to a convicted felon, 18 U.S.C. § 922(d), and one count o f p o s s es s ion with intent to distribute over five kilogr ams of coca ine, 21 U.S.C. §§ 841(a) (1), (b)( 1)(A)

. L ong claims that the 1 Gover nment’s ref

usal to file a substantial assistance motion on his behalf was unconstitutional. He also appea ls the proce dural and substantive rea sonablene ss of his sentenc e. For the rea sons detailed below, the district cour

t’s judgme nt is affirmed in its entirety

.

T h i s i s L ong ’s second appea l to the Six th Circuit. His first sentenc e was vacated as 1 proce durally unrea sonable and rema nded to rec alculate his base offe nse level. See generally United States v. Long , 457 F. App’ x 534 (6th Cir. 2012).No. 12-5564

United States v. W

illiam H. Long Pag e 2

I. Background On Fe bruar

y 28, 2008, a fede ral g rand jury returne d a twenty -eig ht count indictment ag ainst Wil liam “B illy ” L ong , the elec ted Sheriff of Hamilton County , Tenne ssee. Pursuant to a seale d plea ag ree ment, L ong pleade d g uilty to the first twenty -seve n counts. His case stemmed from a reve rse sting opera tion by the Fe dera l Bur eau of I nvestig ation (F BI ) that lasted from April 2007 to Fe bruar y 2008. The Presentenc e I nvestig ation Report descr ibed Def endant’ s pree x isting rela tionship with Eug ene Over street, the FB I ’s cooper ating witness (“CW”). Over st re et went on to wea r an audio / v i d eo rec ording device on his person, which captur ed Def endant perpe trating the crimes to which he pleade d g uilty

. He perpe trated these crimes while acting in his officia l capa city as county sheriff

. II. U. S. Sentencing Guidelin e § 5K 1.1 Motion for Su bstantial Assi stance Pursuant to the plea ag ree ment, the Gover nment consente d to filing a substantial assistance motion if, in i ts assessment, it conclude d that Def endant had provided substantial assistance . I n a memorandum, it conclude d that Def endant had not beca

use: (1) third-par

ty assistance provided on Def endant’ s behalf was disproportionate to Def endant’ s crimes and cre ated a conflict of interest, (2) Def endant had no persona l knowledg e of i n fo rmation he claimed was rele vant to a separ ate

corr uption case , and (3) defe nse counsel’s prior treatment of Overstree t, a potential witness in the other corr uption case . Def

endant filed motions to compel the Gover nment to file the substantial assistance motion, alleg ing unconstitutional motive. The district court denied the motions upon the

Pag e 2 of 8No. 12-5564

United States v. W

illiam H. Long Pag e 3 finding that the Gover

nment had leg itimate and rational rea sons for finding Def endant’ s assistance insubstantial. Def endant appea ls the district court’s fac tual finding that the Gover nment did not harbor an unconstitutional motive in ref using to file a § 5K1.1 substantial assistance moti on in violation of W ade v. Uni ted St ates , 504 U.S. 181 (1992). Specifica lly , he allege s that the Government soug ht
to reta liate ag ains t h i m for exercising his Six th Amendment rig hts to the eff ective assistance of

c o unsel and confr ontation. As evidenc e he submits the Gover nme n t’ s me mo r a

n d u m, w h ic h la

mb a s ts defe nse counsel’s choice to disc lose Over street’ s informant status and attack his c redibility during

a press confe renc e as inconsistent with substantial assistance

. Def ense counsel’s behavior was one of three rea sons the Gover nment cited for ref

using to file the motion. A district court’s interpre tation and application of the U.S. Sentencing Guidelines is revie wed de novo while i t s fa ct u al finding s underly ing the application of the Guidelines are revie wed for clea r err or. United States v. Hawkins , 274 F.3d 420, 426 (6th Cir. 2001). We find clea r err or when a revie w of the entire rec ord leave s us with a “def

inite and firm conviction that a mistake has been committed.” United States v. Lalonde , 509 F.3d 750, 763 (6th Cir. 2007) (interna l quotation an d ci t at i o n o m i tted). We are not left with such a c onviction here

. Section § 5K1.1 of the Sentencing Guidelines allows a sentenc ing court to depar t below the advisory rang e if the g overnme nt files a motion indicating that a defe ndant has provided them with substantial assistance in the investiga tion o r p ro secution of another person who has committed a crime. U.S. Sentencing Guidelines Manual § 5K1.1, cmt. nn. 1–2. I n W ade , the Supreme Court held that Sect i o n § 5 K1

. 1 “g ives the Gover nment a power , but not a duty , to file a motion when a Pag e 3 of 8No. 12-5564

United States v. W

illiam H. Long Pag e 4 defe ndant has substantially assisted.” W ade , 504 U.S. at 185. Howeve r, “fe dera l district courts have authority ” to r eview and g rant relief if a prosec utor’s ref usal to f ile a substantial a ssistance motion is based on an unconstitutional motive. Id

. at 185–86. For relief , a defe ndant m u s t make “a substantial threshold showing .” Id

. at 1 86. This is the only Supreme Court case to addre ss this
matter. 2 Def endant contends that the Gover nment h as an unconstitutionally vindictive motive in violation of the Six th Amendment beca use one of the three rea sons the Gover nment ref used to file

w a s D e f e ndant’s act of publicly disclosing Over street’ s informant status a n d a tt a c k in g h is c r e d ib il it

y . “[W ]hi le an individual cer tainly may be penalized for violating the law, he just as cer tainly may not be punished for exercising a protec ted statutory or constitutional rig ht.” United States v. Goodwin , 457 U.S. 368, 372 (1982). There are two way s in which a defe ndant can prove prosec utorial vindictiveness. I n this case , Def endant has the burd en o f proving actua l prosec utorial vindictiveness. Alabama v. Smith , 490 U.S. 794, 799 (1989). To prove actua l vindictiveness, a defe ndant must prese nt objective evidenc e that the prosec utor’s decision was “motivated by a desire to punish him for doing something that the law plainly allowed him to do.” Goodwin , 457 U.S. at 384. To preva il on appea l, Def endant must prese nt evidenc e that leav es u s firmly convince d that the di strict court was mistaken in its fac tual

Six th Circuit prece dent is unclea r on how t o approa ch a W ade claim bey ond holding that 2 appellate revie w is limit ed only to whether the Go v ernment had an unconstitutional motive in ref using to file a substantial assistance motion and does n o t p er m it revie w of the Gover nment’s decision for

any other re ason. See U

nited States v. Lukse , 286 F.3d 906, 909 ( 6th Cir. 2002). Pag e 4 of 8No. 12-5564

United States v. W

illiam H. Long Pag e 5 finding that the Gover

nment was not unconstitutionally motivated in its ref usal. Def endant has not prese nted such e vidence

. I n Bordenkirc her v. Haye s , 434 U.S. 357 ( 1978), the Supreme Court r eviewe d the motives behind a prosec utor’s char g ing decision. I ts rea soning, never theless, is instructive here beca use both

a char g ing decision and the decision whether to file a § 5K1.1 motion are larg ely discretionar y and this discretion is g iven cons id era ble defe renc e. Compare Bordenkirc ker , 343 U.S. at 364 (“[S] o long

as the prosec utor has probable cause to believe that the acc used committed an offe nse define d by
statut e . . . what char g e to file or bring befor e a g rand jury [] g ener ally rests entirely in his discretion.”) with W

ade , 504 U.S. at 185 ( “[T] he Gover nment [has] a power , not a duty , to file a motion when a defe ndant has substantially assisted.”) and U.S

. S en tencing Guidelines Manual § 5K1.1, cmt. n.3. (“Substantial weig ht should be g iven to the g overnme nt’s evalua tion of the extent

o f the defe ndant’s assistance

. . . .”). The Bordenkirc her Court held that the defe ndant fa i l ed t o prove actua l vindictiveness when the g overnme nt made g ood on a threa t to indict a defe ndant with

an additional char g e punishable by life imprisonment if he ref used to plea. Id

. at 358–59. “[S] o long

as the acc used is fre e to acc ept or reje ct the prosec ution’s offe r[,] ” the Court held, “discoura g ing []
t h e d ef en dant’s asser

tion of his trial rig hts” is “an inevitable and permissible” part of the p l ea barg aining proce ss. Id . at 363, 364 (interna l punctuation omitted). I n addition to defe nse counsel’s behavior , the Gover nment proff

ered o t h er rea sons for ref using to file th e m o t i o n : the lack of proportionality betwee n Def endant’ s crimes and the thirdparty assistance provided on his behalf ; the conflict of interest appar ent in acc epting the third-par ty assistance ; and Def

endant’ s lack of per sonal knowledg e of a ny events re levant to a se para te ca se. Pag e 5 of 8No. 12-5564

United States v. W

illiam H. Long Pag e 6 The dist rict court found t he first rea son was rational and legitimate because Def endant pleade d to twenty -seve n offe nses—including nineteen counts of extorti on, six counts of money launder ing, and

one count of drug traff

icking —while t he third-par ty assistance only secur ed a state misdemeanor offe nse—involving half an ounce of marijuana and three presc ription pills worth about $120. The d istrict court rea soned the conflict of interest was rational and leg itimate beca use the thir d p ar t y assistance was provided to Def endant’ s former employ er before the federa l g overnme nt ag ree d to the t hird party assistance

. Finally , Def endant does not dispute the Government’s charac terization that he lacks persona l knowledg e of events rele vant to a separ ate case . For these rea sons, we are not firmly convince d that the di strict court was mistaken in concluding that the Government’s refusal

was not based on actua l vindictiveness for any action taken by defe nse cou n s el rathe r than “its rational assessment of the cost and benef it that would flow from moving.” W ade , 504 U.S. at 187. Cf. Goodwin , 457 U.S. at 380 n.11 (“A char g ing decision does not levy an improper ‘pena lty ’ unless it results solely from the defe ndant’s exercise of a protec ted leg al rig ht, rathe r than the prosec utor’s normal asse ssment of the societa l interest in prosec ution.”). III. Reasonableness of the Sentence Def endant challeng es the rea sonablene ss of his sentence . Def endant’ s calc ulated advisory Guideline rang e was 135–68 months. The district court i mposed concur rent terms of 135 months fo r eac h of his extorti on, money launder ing, and drug traff icking offe nses and 120 month s fo r providing a firea

rm to a convicted felon. The terms wer e at the bottom end of Def endant’ s advisory rang e. We r e v ie w a d is tr ic t c o u r t’ s s e n te ncing deter

mination “under a defe rential abuse- of-discr etion standard for rea sonablene ss.” Lalonde , 509 F.3d at 769 (quoting Gall v. United States , 552 U.S. 38, Pag e 6 of 8No. 12-5564

United States v. W

illiam H. Long Pag e 7 128 S.Ct

. 586, 591 (2007)) (interna l quotations omitted). This revie w contains both a proce dural and

a substantive component, addre ssing the former first and then the latter. Id

. After a thoroug h revie w of the re cord, w e af

firm Def endant’ s sentence

. Def endant claims the district court committed proce dural err or by failing to expl ai n its reje ction of hi s milit ary service and los s of pension as m itigating fac tors. There are three steps in our proc edura l rea sonablene ss review , ensuring that the district court: (1) proper ly calc ulated the applicable advisory Guidelines rang e; (2) considere d the § 3 5 53(a) fac tors as well as the parties’ arg uments for a sentenc e outsid e t h e Guidelines rang e; and (3) adequately articula ted its rea soning for i m p o s i ng the chosen sentenc e, including any reje ction of the p ar t i es’ arg uments for an outsideGuidelines sentenc e and any decision to deviate from the advisory Guidelines rang e. United States v. Pe trus , 588 F.3d 347, 351–52 ( 6th Cir. 2009). Def endant does not asser

t that the di strict court im proper ly calc ulated the advisory rang e. Step two was proper ly executed: the district court stated that it had re v i ew ed al l the materia l provided by Def

endant and at sentenc ing Def endant prese nted arg

ument on his milit ary service and loss of pension. Step three w as prope rly executed as well. I t is appare nt from the conte x t and the

rec ord that L ong ’s status as a public officia l was an ag g rava ting fac to r t h at o v er s hadowe d his mitigating fac tors. Thus, the rec ord does not reveal an y proce dural err or. See United States v. Lapsins , 570 F.3d 758, 774 (6th Cir. 2 0 0 9 ) (“A less leng thy explanation will suffice for a withinGuidelines sentenc e when ‘the rec ord makes clea r that the sentenci ng judge considere d the [defendant’ s] evidenc e and arg uments.”)( quoting Rita v. United States , 551 U.S. 338, 359 (2007))

. On appellate revie w, sentenc es imposed within a proper ly calc ulated Guidelines rang e are aff orded a rebuttable presumption of reasonable ness. United St ates v. Benson , 591 F.3d 491, 500 Pag e 7 of 8No. 12-5564

United States v. W

illiam H. Long Pag e 8 (6th Cir. 2010); see also United States v. Smith , 358 F. App’x 634, 639 (6th Cir. 2009)). Def endant
cannot rebut the presumption of rea sonablene ss by alleg ing that a sentenc e lower than the one at the bottom end of his advisory rang e would have been sufficie nt to meet the statutory sentenc ing g oals. See United States v. Dex ta , 470 F.3d 612, 616 (6th Cir. 2006) (“[Def endant’ s] mere alleg ation that
t h e s entence imposed is g rea ter than nece ssary to achie ve the g oals of punishment outline d i n §3553(a) is insufficient to rebut the pr esumption of rea sonablene ss.”). IV. Conclusion For the fore g oing r easons, De fenda nt’s sentenc e is aff

irmed in its entirety

.

Pag e 8 of 8