1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRETT L. HENDERSON(98-4087), DAVID NELMS(98-4369),

Defendants-Appellants.

Appeal from the United St

for the Southern District of 

No. 97-00098—George C. S

Submitted: Marc

Decided and Filed: M

Before: WELLFORD, SILER, 

Judges.

____________

COUNSE

ON BRIEF: Brian E. GoldberColumbus, Ohio, William K. Fulm
2 United States v. Henderson, et al. Nos. 98-4087/4369

for Appellants. Robyn R. Jones, ASSISTANT UNITEDSTATES ATTORNEY, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Brett Henderson

and David Nelms pled guilty to conspiring to import cocainein violation of 21 U.S.C. § 963. Both are appealing theirsentences, claiming that their criminal history categoriesoverstate the seriousness of their past conduct. Because ofthis, they argue that the district court erred when it deniedtheir motions for a downward departure from the UnitedStates Sentencing Guidelines. Henderson also argues that thedistrict court erred when it assessed him with three criminalhistory points, pursuant to U.S.S.G. § 4A1.1(a), for serving asentence in excess of one year and one month for a pastrobbery conviction. The district court rejected Henderson’sand Nelms’s arguments and found that their criminal historycategories adequately reflected their numerous pastconvictions. For the reasons set forth below, we AFFIRM

the judgment of the district court.

I. BACKGROUND

In the summer of 1996, two brothers, Mark and Gary

Seawell, developed an organization to import cocaine fromBelize and Mexico into Columbus, Ohio for distribution.From the summer of 1996 through the summer of 1997, theSeawells hired other individuals, including Brett Henderson,to recruit couriers for them. A courier would travel toChetamul, Mexico and receive a pair of tennis shoes with ahalf kilogram of cocaine concealed in the sole of each shoe.Upon receiving the shoes, a courier would place them on hisfeet and wear them back to Columbus. Henderson and theother recruiters would pick up the cocaine from theirrespective couriers and deliver it to Gary Seawell fordistribution.
10 United States v. Henderson, et al. Nos. 98-4087/4369

category that Henderson received with nine points. Thus,even if Henderson’s argument had merit, the applicableguideline sentencing range would have remained the same. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court.

Nos. 98-4087/4369 United States 

Nelms was involved in a cocaine 

in August of 1997. Instead of havinback in their tennis shoes, this partimail from Belize to Columbus. TService, however, intercepted thcontrolled delivery to one of NelmSeawell then instructed this co-conto another co-conspirator named Meighan arrived to pick up the pwas with him. Upon being approafled. Nelms was ultimately arrestcocaine had been shipped was recwhere Nelms had attempted to Subsequent investigation further distributed cocaine for the Seawexpecting to receive a portion of thAugust shipment.

Shortly thereafter, Henderson an

numerous drug charges. On Decemseparate plea agreements, they eacto import cocaine in violation of sentencing, the government fileU.S.S.G. 5K1.1, seeking downwHenderson and Nelms based on investigation of their co-conspirahad provided more assistance tharecommended that the district courfor Henderson and three offense district court granted the governmaccordingly.

In determining Henderson’s se

pointed out that he had twelve conthem were not included in Hencomputation due to the length of tsome of them had occurred. Thpurposes of the computation inoperating a motor vehicle while unin 1987, a robbery conviction in 1
4 United States v. Henderson, et al. Nos. 98-4087/4369

1993 and 1995, a conviction for driving under a suspendedlicense in 1995, disorderly conduct convictions in 1996 and1997, and a negligent assault conviction in 1997. Hendersonreceived a total of nine criminal history points that resulted ina criminal history category of IV for purposes of sentencing.These nine points were derived by assessing Henderson threecriminal history points for the 1990 robbery conviction, seeU.S.S.G. § 4Al.1(a), four points for the other numerousconvictions that he had, see U.S.S.G. § 4A1.1(c), and twopoints for committing the instant offense while on probation,see U.S.S.G. § 4A1.1(d). 

Henderson made several objections to his criminal history

calculation. One of his primary contentions was that hiscriminal history category overstates the seriousness of his pastconduct. In other words, because his past criminal historyconsists of a number of “minor” violations, Henderson arguedthat his criminal history category exaggerates the significanceof his past conduct. His other main argument was that heshould not receive the three point assessment for his 1990robbery conviction because of his unsupported contention thathe was supposed to get “shock probation” after he had servedonly six months in prison. Shock probation is a term of artfor early release that may be granted in the discretion of theOhio trial court. See Ohio v. Bistarkey, No. 90-CR-290, 1994WL 456473, *2 (Ohio Ct. App. Aug. 19, 1994); O.R.C. §2947.061. Because defendants are able to get out of prisonmuch sooner than under normal conditions, many statedefendants file motions for shock probation in Ohio. 

The district court, however, concluded that Henderson’s

criminal history category was not overstated and pointed outthat the plain language of § 4A1.1 mandated that the courtadd three points for the robbery conviction. It then departeddownward four offense levels because of Henderson’sassistance to the government, which was a 70-monthreduction, and sentenced Henderson to 140 months ofimprisonment, followed by a 5-year period of supervisedrelease, and a $100 special assessment. Henderson timelyfiled a notice of appeal.

Nos. 98-4087/4369 United States 

Now, according to 4A1.1(a), theach prior sentence of imprisonmand one month. On May 30th of sentenced to 3-15 years of imprisNovember 27th of 1991, the deprobation. This term of imprisoncriteria for a three-point enhancTherefore, the Court finds that thof the three criminal history psection.

As pointed out by the district courteach prior sentence of imprisonmeone month. See U.S.S.G. § 4A1.1(he served a sentence of one yeamonths for his 1990 robbery co§ 4A1.1(a) is clearly applicable. 

Henderson, however, attempts t

§ 4A1.1(a) by arguing that his conviction would have been less thhad his defense lawyer in 1990 filea more timely fashion. This argumbecause this circuit has held thaforum [is] not the proper forum for to a prior conviction used to enhanUnited States, 183 F.3d 474 (6th CUnited States, 511 U.S. 485 (1994

Finally, even if the district court 

argument and found that he shomonths for his robbery conviction months, such a finding would not criminal history category. Undewould have been assessed for the because Henderson’s sentence wdays. If two points are used Henderson’s total criminal history eight instead of nine. Eight criminstill result in a criminal history 
8 United States v. Henderson, et al. Nos. 98-4087/4369

convictions. The Court finds that these convictions donot produce a criminal history category whichsignificantly over represents the defendant’s criminalhistory and are an accurate prediction of the defendant’slikelihood to commit further crimes. So, therefore, nodownward departure is warranted.

In addressing a similar argument from Nelms, the districtcourt further acknowledged its authority to depart downward:

[I]f reliable information indicates that the defendant’scriminal history category does not adequately reflect theseriousness of the defendant’s past criminal conduct orthe likelihood that the defendant will commit othercrimes, the Court may consider imposing a sentence anddeparting from the otherwise applicable guideline range.The example might be two misdemeanors close to a 10-year prior instant offense. . . . The Court finds that adeparture in this case is unwarranted and due to theconstant violations and convictions that the defendant hashad, that the departure is not applicable under 4A1.3 orany other paragraph of that report.

Because the district court was clearly aware of its discretionto depart downward in both Henderson’s and Nelms’s cases,its informed decision not to depart is unreviewable. See

United States v. Brown, 66 F.3d 124, 128 (6th Cir. 1995)(“[A] lower court’s informed decision not to depart from avalid guideline range is not reviewable.”). C. The district court properly assessed three criminal

history points for the sentence that Hendersonreceived relating to his robbery conviction

Henderson also argues that he should not have been

assessed three criminal history points for serving over oneyear and one month in prison for his robbery conviction. SeeU.S.S.G. § 4A1.1(a). In addressing that argument, the districtcourt concluded as follows:

Nos. 98-4087/4369 United States 

With respect to Nelms’s sente

juvenile convictions for receivattempted drug abuse, neither calculating his criminal history. conviction for aggravated traffickdrug convictions between the spadrug abuse conviction in 1995. Neresulted in a criminal history scguidelines. He is also a “career adult, he had been convicted of twto his felony plea on the cocaine U.S.S.G. 4B1.1. A total criminacombined with his career offender shistory category of VI.

At Nelms’s sentencing hearing, 

that made him a career offender weeighteen and nineteen years old aamount of drugs. Thus, according t[did] not accurately reflect the grastatus.” The district court, howcriminal history category adequconduct, especially considering the he had committed. On the other hathree levels on account of Negovernment. This departure resureduction from the low end of Nrange and a sixty month reducpossible sentence that he could hdeparture, Nelms’s offense level criminal history category was Vsentencing range of 140 to 175 monto 175 months of imprisonment, foof supervised release, and a $Because Nelms ran from the arresconceal evidence, and had a lengthsentenced at the high end of the gua timely notice of appeal.
6 United States v. Henderson, et al. Nos. 98-4087/4369

II. ANALYSIS

A. Standard of review

Both Henderson and Nelms argue that the district court

abused its discretion when it denied their motions for adownward departure. The government counters by arguingthat the district court did not abuse its discretion because itwas aware that it had the authority to depart downward. Allof the parties cite Koon v.United States, 518 U.S. 81 (1996),for the proposition that we review a district court’s decisionnot to depart for an abuse of discretion. Koon, however, dealt

with a district court’s affirmative decision to departdownward, which is inapplicable to a district court’s decisionnot to depart from the sentencing guidelines. See UnitedStates v. Brown, 98 F.3d 690 (2d Cir. 1996). 

In Brown, the Second Circuit addressed Koon’s

applicability to a decision not to depart from the sentencingguidelines and held the following:

[I]t is well established in this Circuit that a court’sdecision not to depart from the Guidelines is notnormally appealable. On appeal, however, Brown urgesthat the Supreme Court’s recent decision in Koon . . .

requires that we apply an “abuse of discretion standard”to a judge’s decision not to depart from a prescribedGuidelines range. The Koon case, however, concernedthe appropriate standard for reviewing a judge’s decisionto depart. Because Koon did not involve a judge’sdecision not to depart, it does not affect the law of thisCircuit barring appeal where a district court decides notto depart.

Id. at 692 (citations and parentheticals omitted).

We agree with the Second Circuit’s reasoning in Brown and

find that Koon does not alter this court’s precedent that

generally precludes appeals from decisions not to depart fromthe guideline range. See United States v. Rudolph, 190 F.3d

720, 722 (6th Cir. 1999) (holding, in a post-Koon case, that

Nos. 98-4087/4369 United States “[u]nless a district court mistakenllegal authority to depart below the gmay not review a district court’s United States v. Pruitt, 156 F.3d 63district court’s discretionary refusgenerally not appealable, unless thbelieved it did not have legal authorConsequently, the primary issue whether the district court believauthority to depart downward Henderson’s and Nelms’s crimoverstated the seriousness of their 

Henderson also argues that the d

assessed him with three criminal hrobbery conviction. With determinations, we review a distriunder the “clearly erroneous” stanconclusions under the de novo stanWaldon, __ F.3d __, 2000 WL 1717, 2000).B. The district court made an 

depart downward in both Hcases, making those decision

At Henderson’s sentencing h

commented as follows regarding Hhis criminal history category was o

Regarding the criminal history asking for a downward departuhave argued here and in your consists of minor violations. Sethe defendant’s criminal historover represents the seriousnecriminal history or the likelihoocommit future crimes, a downappropriate. In the instant case1986 and 1997 had 12 convictioof a violent nature. They also