                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0542n.06
                            Filed: August 1, 2006

                                            No. 05-1125

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES,                                            )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
v.                                                        )        DISTRICT OF MICHIGAN
                                                          )
PAUL JOHN SAKE,                                           )                         OPINION
                                                          )
       Defendant-Appellant.                               )




BEFORE:        MOORE, COLE and CLAY, Circuit Judges.

       R. GUY COLE, JR., Circuit Judge. Paul John Sake pleaded guilty to conspiring to possess

with intent to distribute 3, 4-methylenedioxy methamphetamine (“MDMA”), a schedule I- controlled

substance commonly referred to as “Ecstacy,” in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C),

and 846. Sake now challenges his sentence of 120 months’ imprisonment on a variety of bases. For

the reasons that follow, we AFFIRM Sake’s sentence.

                                                 I.

       Paul John Sake was indicted in the United States District Court for the Western District of

Michigan on August 12, 2003, along with Jason Valdez and Adam Williams, on one count of

conspiracy to possess with intent to distribute Ecstacy. Each defendant pleaded guilty to the sole

count of the indictment. A third co-conspirator, Ezra Salmon, who was not indicted in federal court,

pleaded guilty in state court to possession of Ecstasy with intent to deliver.
No. 05-1125
United States v. Sake

       Valdez, Williams, and Salmon agreed to cooperate with the government, and Valdez and

Williams stipulated by plea to a specific amount of relevant conduct. Valdez pleaded guilty to

conspiring to possess with intent to distribute a quantity of 18,000 pills of Ecstacy and Williams to

a quantity of 14,000 pills. Valdez and Williams were sentenced to 60 and 37 months’ imprisonment,

respectively, in federal court. Salmon was sentenced in state court to twelve months’ imprisonment.

       In contrast to his co-conspirators, Sake contested the relevant conduct that was attributed to

him. The Presentence Investigation Report (“PSR”) recommended that 18,600 pills of Ecstacy and

1.5 gallons of human growth hormone (“GHB”) be attributed to Sake on the basis of the proffers of

his co-conspirators and the statements of investigating officers. Sake denied responsibility for any

more than 5,500 pills, and denied having sold any GHB. As a result, the district court conducted

a three-day sentencing hearing, at which Valdez, Williams, and Salmon, among others, testified on

behalf of the government. At the conclusion of this hearing, the district court found, by a

preponderance of the evidence, that the PSR estimate was accurate: Sake was responsible for at

least 18,000 pills of methamphetamine and 1.5 gallons of GHB.

       The PSR also recommended that Sake not be granted a reduction of his offense level for

acceptance of responsibility. Furthermore, on the basis of testimony from one of Sake’s fellow

county jail inmates, the PSR recommended a two-point increase in Sake’s offense level for

obstruction of justice. The inmate, Tim Haithcox, stated that Sake asked him whether he would “set

up” Salmon, who had cooperated with the government, by planting drugs at Salmon’s residence.

Furthermore, Haithcox claimed that Sake offered him $1,500 to “rub out” Salmon, while making

a pistol motion to his head. Finally, Sake allegedly asked Haithcox if the district judge was likely

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United States v. Sake

to take a bribe. The PSR ultimately calculated Sake’s total offense level at 32, with a criminal

history category of III.

       The district court declined to credit Haithcox’s allegations and therefore rejected the PSR’s

obstruction- of-justice recommendation. The district court asked the prosecutor whether she thought

Sake should get a reduction for acceptance of responsibility. The prosecutor recommended a two-

point reduction, but opined that Sake had not lived up to his obligation to accept responsibility in

that he had, inter alia, contested the relevant conduct attributable to him. The district court reduced

Sake’s offense level by two for acceptance of responsibility.

       Sake also requested a downward departure due to poor mental health. In support of this

request, Sake introduced the testimony of Dr. William Brooks, a psychologist, who opined that Sake

suffered from bipolar and “major depressive” disorder. The government relied on the testimony of

Dr. Jill Grant, a forensic psychologist employed by the Federal Bureau of Prisons, who testified that

Sake suffered from cyclothymia, a disorder similar to bipolar disorder but more common and less

severe. The district court credited the testimony of Grant over that of Smith, and found that Sake’s

mental health problems could be treated adequately in a prison facility, and declined to depart

downward.

       Ultimately, the district court calculated a total offense level of 28, which, given Sake’s

uncontested criminal history category of III, yielded a recommended sentencing range of 97 to 121

months. Acknowledging the advisory nature of the Guidelines under United States v. Booker, 543

U.S. 220 (2005), issued only days earlier, the district court sentenced Sake to 120 months’




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United States v. Sake

imprisonment with a recommendation that he receive treatment for drug addiction and mental health

problems. This timely appeal followed.

                                                  II.

                                                  A.

       Sake argues that any “unstipulated conduct” that would increase his sentence must be proven

beyond a reasonable doubt. Therefore, according to Sake, he can only be attributed with the 5,000

and 5,500 pills that he admitted distributing. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the

Supreme Court held that any fact that increased a defendant’s sentence beyond the statutory

maximum must be admitted or proven beyond a reasonable doubt. Id. at 490. Contrary to Sake’s

argument, however, “Apprendi does not apply to Guidelines determinations, only statutory

maximums.” United States v. DeJohn, 368 F.3d 533, 546 (6th Cir. 2004). The maximum sentence

for conspiracy to distribute a schedule I substance is twice what Sake received, 21 U.S.C. §

841(b)(1)(D) (setting maximum sentence at 20 years), and thus the proscriptions of Apprendi have

not been triggered.

       Indeed, provided that it “err[s] on the side of caution,” a district court is entitled to estimate

uncertain drug quantities. United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1999); United

States v. Gardner, 417 F.3d 541, 546 (6th Cir. 2005) (reaffirming Walton post-Booker). We review

such an estimation for clear error, id. at 543, meaning that this Court will “ask whether on the entire

evidence it is left with the definite and firm conviction that a mistake has been committed,” United

States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004) (internal citation omitted).




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United States v. Sake

       In this case, the district court conducted a three-day, thirteen-witness sentencing hearing.

At that hearing, all three of Sake’s co-conspirators, each of whom admitted to distributing thousands

of pills themselves, testified that Sake was at the heart of the conspiracy. The court credited

Salmon’s testimony in particular because, in the words of the court, Salmon was “the most credible

witness in this whole hearing.” Consistent with the testimony of Sake’s co-conspirators, 18,000 pills

and 1.5 gallons of GHB is a conservative estimate. Additionally, another county jail inmate testified

that Sake admitted to shipping between 18,000 and 20,000 pills of methamphetamine. Accordingly,

Sake’s first claim, related to the amount of relevant conduct attributed to him, must fail.

                                                 B.

       Sake next argues that the district court erred in refusing to depart downward, pursuant to

U.S.S.G. § 5H1.3 or “Chapter Five,” on the basis that Sake suffered from bipolar disorder. This

Court does not have jurisdiction to review a district court’s conscious and express decision not to

depart downward from the Guidelines where the judge understands that he has the authority to

depart downward and does not consider unlawful reasons. United States v. Stewart, 306 F.3d 295,

329 (6th Cir. 2002); United States v. Butler, 207 F.3d 839, 843 (6th Cir. 2000). See also United

States v. Puckett, 422 F.3d 340, 345 (6th Cir. 2005) (reaffirming Steward post-Booker); United

States v. Jones, 417 F.3d 547, 550 (6th Cir. 2005). But see United States v. McBride, 434 F.3d 470,

475 (6th Cir. 2006) (holding that the refusal to downward depart may be considered as a factor in

reviewing a sentence for overall reasonableness). Therefore, Sake’s second claim fails.

                                                 C.




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United States v. Sake

       Sake argues that the government breached Sake’s plea agreement by failing to recommend

an additional, one-level reduction for acceptance of responsibility. As an officer of the court, a

prosecutor’s error may under certain circumstances necessitate reversal of a conviction or sentence.

See United States v. Swanberg, 370 F.3d 622, 629 (6th Cir. 2004). Nor would such an error be

harmless in this case, since a one-level reduction would have changed Sake’s recommended

sentencing range to between 87 and 108 months. We review de novo an allegation that the

government breached its plea agreement, United States v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002),

which is in essence a contract, see Jones, 417 F.3d at 549 n.1 (citing Ricketts v. Adamson, 483 U.S.

1, 10-12 (1987)).

       According to Sake’s plea agreement, “[s]hould the Court grant a two-level reduction . . . the

government . . . will move the Court to grant an additional one[-]level reduction.” The district court

granted a two-level reduction, and hence Sake argues that the government should have moved for

an additional reduction. Read in its entirety, however, the “Acceptance of Responsibility” clause

to which Sake refers does not support the relief he requests. The clause reads (emphasis added):

       The United States agrees not to oppose the Defendant’s request for a reduction of his
       offense level for acceptance of responsibility under § 3E1.1 of the United States
       Sentencing Guidelines provided the Defendant satisfies the criteria for such a
       reduction. Should the Court grant a two-level reduction as provided herein, the
       government certifies that the plea was provided sufficiently in advance of trial to
       allow the government to forego the expenses of trial preparation and will move the
       Court to grant an additional one[-]level reduction pursuant to U.S.S.G. § 3E1.1(b),
       as amended.

       To “satisf[y] the criteria” for an acceptance of responsibility reduction under the Guidelines,

a defendant must “clearly demonstrate[] acceptance of responsibility,” U.S.S.G. § 3E1.1(a).



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Meanwhile, “[a] defendant who falsely denies, or frivolously contests, relevant conduct that the

court determines to be true has acted in a manner inconsistent with acceptance of responsibility.”

U.S.S.G. § 3E1.1. (comment 1(a)).1 In this case, Sake contested the relevant conduct attributable

to him, and the district court determined that Sake’s claim that he was only responsible for between

5,000 and 5,500 pills of methamphetamine was false. Thus, Sake has acted in a manner inconsistent

with acceptance of responsibility, as defined by the Sentencing Guidelines.

       That the district court did ultimately decide to reduce Sake’s sentence by two points does not

change our analysis. Following the Supreme Court’s decision in Booker v. United States, 543 U.S.

220 (2005), a district court has the discretion to take the Guidelines under advisement, but ultimately

discount them. The court chose to do so in this case. Sake’s actions of falsely or frivolously

denying relevant conduct absolved the government of its obligation, since the obligation was

premised on Sake’s satisfaction of the relevant criteria.




       1
        U.S.S.G. 3E1.1, comment 1(a), reads in its entirety:

       1. In determining whether a defendant qualifies under subsection (a), appropriate
       considerations include, but are not limited to, the following:
       (a) truthfully admitting the conduct comprising the offense(s) of conviction, and
       truthfully admitting or not falsely denying any additional relevant conduct for which
       the defendant is accountable under § 1B1.3 (Relevant Conduct). Note that a
       defendant is not required to volunteer, or affirmatively admit, relevant conduct
       beyond the offense of conviction in order to obtain a reduction under subsection (a).
       A defendant may remain silent in respect to relevant conduct beyond the offense of
       conviction without affecting his ability to obtain a reduction under this subsection.
       However, a defendant who falsely denies, or frivolously contests, relevant conduct
       that the court determines to be true has acted in a manner inconsistent with
       acceptance of responsibility.


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United States v. Sake

        Moreover, it was only in the event that the district court awarded a reduction “as provided

herein,” i.e., based on the Guideline criteria, that the government was further obligated to move for

an additional reduction. In recommending a two-level reduction, the government explicitly referred

to its release from the acceptance clause at sentencing; government counsel recommended a two-

level reduction, though it “need not do so under the terms of the plea agreement.” It would be an

odd result were the government absolved of its responsibility to recommend any reduction, but

obligated to recommend an additional reduction should the court exercise its discretion in Sake’s

favor. Accordingly, Sake’s third claim fails.

                                                   D.

        Fourth, Sake argues that the district court’s application of the Protect Act of 2003, Pub. L.

No. 108-21, violates the Ex Post Facto Clause of the Constitution, U.S. Const. Art. I, § 9. An ex

post facto violation occurs when a law is retroactively applied to a defendant to her disadvantage.

Weaver v. Graham, 450 U.S. 24, 29 (1981). Ordinarily, this Court would review an ex post facto

challenge de novo. United States v. Richardson, 437 F.3d 550, 555 (6th Cir. 2006); United States

v. Copeland, 321 F.3d 582, 601 (6th Cir. 2003) (“This court reviews a constitutional challenge to

a defendant’s sentence de novo wherever the defendant preserves the claim for appellate review.”).

However, because Sake makes this argument for the first time on appeal, we instead review for plain

error. Id.; United States v. Hamm, 400 F.3d 336, 339 (6th Cir. 2005). “To establish plain error, a

defendant must show (1) that an error occurred in the district court; (2) that the error was plain, i.e.,

obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse




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United States v. Sake

impact seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”

Id. (internal citation omitted).

        The district court did not expressly apply the Protect Act. In reducing Sake’s sentence by

two points for acceptance of responsibility, however, the court stated: “I think [Sake] is entitled to

two points . . . and he’s not entitled to three, because [the prosecutor] didn’t move for three, that’s

what the guidelines require.” The district court clearly refers to U.S.S.G. § 3E1.1(b), which, as

amended by the Protect Act, requires that the government move for a third point of reduction. A

least one circuit has held that where a defendant whose offense predates the passage of the Protect

Act is only granted a two-point reduction under the Guidelines, that defendant has been subjected

to an ex post facto law. See United States v. Borer, 412 F.3d 987, 990-91 (8th Cir. 2005).

        If the court erred in applying the Protect Act, however, the error was neither obvious nor

prejudicial to Sake’s significant rights, nor adverse to the fairness, integrity, or reputation of the

proceeding. Prior to amendment, and at the time of Sake’s offense, the Guidelines provided that a

defendant was entitled to a three-level reduction if he “timely notifie[d] authorities of his intention

to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and

permitting the court to allocate its resources efficiently.” Id. at 989-90 (quoting U.S.S.G. §

3E1.1(b)(2) (Nov. 1, 2002)). In this case, Sake disputed the relevant conduct, thereby forcing a

costly hearing. The requirement that Sake “clearly demonstrate[] acceptance of responsibility” was

included by amendment in 1992, a decade before Sake’s offense. See U.S.S.G. § 3E1.1 (Historical

Notes). Therefore, Sake cannot prevail on this claim.




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                                                 E.

       Sake next argues that the district court’s ex post facto application of United States v. Booker,

543 U.S. 220, which had not been decided at the time of Sake’s offense, violates the Due Process

Clause. It is clear that Booker was meant to apply retroactively. Booker, 543 U.S. at 268 (“[W]e

must apply today’s holdings . . . to all cases on direct review.”). We have held, however, that where

a defendant was treated the same post-Booker as he would have been treated pre-Booker, ex post

facto concerns are not implicated. Richardson, 437 F.3d at 555 (citing Weaver v. Graham, 450 U.S.

24, 29 (1981)). In this case, Sake was sentenced within a range calculated under the Guidelines.

The district court determined Sake’s relevant conduct in the same manner as it would pre-Booker.

Compare Walton, 908 F.2d at 1302, with Gardner, 417 F.3d at 546. Thus, Sake’s claim must fail.

                                                 F.

       Finally, Sake argues that his sentence was unreasonable. Following Booker, we review a

district court’s sentence for reasonableness, subjecting findings of law to de novo review and

findings of fact for clear error. United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005); United

States v. Davidson, 409 F.3d 304, 310 (6th Cir. 2005). Clear error occurs only when “the reviewing

court is left with the definite and firm conviction that a mistake has been committed.” United States

v. Ayen, 997 F.2d 1150, 1152 (6th Cir. 1993). A sentence that was properly calculated under the

now-advisory Guidelines is presumptively reasonable, assuming that the district court discussed the

factors outlined in 18 U.S.C. § 3553(a). Webb, 403 F.3d at 383; see also Booker, 543 U.S. at 764-

65.




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United States v. Sake

        In this case, the district court identified its obligation to assess the § 3553(a) factors and

proceeded to do so. For instance, the district court discussed the impact of Ecstasy on the

community, and on Sake in particular. The court discussed an outstanding bench warrant for Sake’s

arrest in Orange County, California, his likelihood of re-offending, and the necessity of psychiatric

treatment. In arguing that his sentence of 120 months was unreasonable, Sake essentially reiterates

his earlier challenges. Sake argues that he was entitled to a lesser sentence due to an inflated

assessment of relevant conduct and because he has mental health problems. Sake adds that his co-

defendants received substantially lower sentences for similar conduct. Given the extensive

testimony of Sake’s co-conspirators concerning his role in the offense, the district court’s finding

of relevant conduct did not constitute clear error.

        Nor did the district court commit clear error in crediting Dr. Grant’s diagnosis over that of

Dr. Brooks. Grant’s diagnosis was premised on interviews with nursing correctional staff, Sake’s

family members, Sake, and Brooks. In contrast, Brooks acknowledged that his diagnosis was the

result only of self-reporting and family history and his observations of Sake’s daily prison activities.

Brooks admitted that, in situations such as Sake’s wherein a defendant seeks to gain a reduction in

his sentence on the basis of mental health, a forensic evaluation is “very important.” Moreover, he

conceded that he was not trained as a forensic evaluator, and that forensic evaluation differs

considerably from general evaluation.

        Finally, as the district court also mentioned, the disparity in the sentences received by Sake’s

co-conspirators reflects a difference in their histories and behavior. Valdez and Williams, for

example, only had a criminal history category of I, as opposed to Sake’s criminal history category

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United States v. Sake

of III. Moreover, Valdez and Williams stipulated to relevant conduct, which Sake did not.

Accordingly, Sake’s sixth and final claim fails.

                                               III.

       For the reasons that precede, we AFFIRM Sake’s sentence of 120 months’ imprisonment.




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