                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0578n.06

                                            No. 10-4511                                     FILED
                           UNITED STATES COURT OF APPEALS                              Jun 06, 2012
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )       ON APPEAL FROM THE
                                                      )       UNITED STATES DISTRICT
v.                                                    )       COURT FOR THE NORTHERN
                                                      )       DISTRICT OF OHIO
DAVOHN GODSEY,                                        )
                                                      )
       Defendant-Appellant.                           )
                                                      )




       BEFORE: GIBBONS, ROGERS, and COOK, Circuit Judges.


       PER CURIAM. Davohn Godsey appeals his 175-month sentence for drug offenses. For the

reasons set forth below, we vacate the district court’s judgment and remand for resentencing.

       Pursuant to a written plea agreement, Godsey pleaded guilty to conspiring to distribute and

possess with intent to distribute cocaine base, cocaine, and marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and 846 (Count 1), possessing with intent to distribute approximately 217 grams of

cocaine base in violation of 21 U.S.C. § 841(a)(1) (Count 2), and possessing with intent to distribute

approximately 122 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count 3). With respect

to Godsey’s sentencing, the parties agreed to recommend a sentence within the advisory guidelines

range as calculated in accordance with the computations and stipulations set forth in the plea

agreement. The government agreed not to oppose a three-point reduction in the applicable offense

level for Godsey’s acceptance of responsibility pursuant to USSG § 3E1.1. The parties agreed that

the following represented the correct computation of the applicable offense level: “That the
No. 10-4511
United States v. Godsey

defendant conspired to possess with intent to distribute at least 150 grams but less than 500 grams

of crack cocaine (Base Offense Level 32) (mandatory minimum 10 years imprisonment).”

According to the plea agreement, the parties understood that if the district court granted Godsey a

three-level reduction for acceptance of responsibility, found that he met the criteria for the two-level

reduction under the safety valve provisions, see 18 U.S.C. § 3553(f), USSG § 5C1.2(a), and accepted

the plea agreement’s factual stipulations, then his total offense level would be 27. The plea

agreement continued: “While there is no agreement with respect to the Criminal History category

of the defendant, assuming a Criminal History category of I, the Guideline Range would be 70 to 87

months.” Per the plea agreement, Godsey, acknowledging that the plea agreement was entered into

pursuant to Federal Rule of Criminal Procedure 11(c)(1)(b), understood that the recommendations

and stipulations contained in the plea agreement were not binding on the district court and that “there

is no agreement as to his sentencing guideline level or criminal history category.”

        The probation office prepared a presentence report using the 2009 edition of the sentencing

guidelines. Grouping the three drug counts together, see USSG § 3D1.2(d), the presentence report

set forth a base offense level of 32 based on the drug quantities involved. After a three-level

reduction for acceptance of responsibility and a two-level safety valve reduction, the presentence

report calculated a total offense level of 27. Although Godsey had no convictions resulting in

criminal history points, corresponding to a criminal history category of I, the presentence report

provided a lengthy list of arrests and other criminal conduct not resulting in charges or convictions.

Godsey’s total offense level of 27 and criminal history category of I yielded a guidelines range of 70

to 87 months. The presentence report pointed out that the statutory mandatory minimum sentence

for Counts 1 and 2 was 120 months if the safety valve provisions were not applied. The presentence

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United States v. Godsey

report further noted that the new sentencing guidelines in effect on November 1, 2010, pursuant to

the Fair Sentencing Act of 2010 (FSA) would reduce the offense level by two based on the quantity

of crack cocaine.

        Godsey was sentenced on November 22, 2010. Godsey objected to the presentence report’s

allegations of other criminal conduct; the district court, going through Godsey’s specific objections,

stated that it would disregard many of these incidents for sentencing purposes. Noting that the

presentence report set forth a total offense level of 27, the district court stated that “[i]t would be a

25 under the current guidelines, but they are not applicable.” The district court found that the

presentence report’s criminal history category of I under-represented Godsey’s criminal history and

therefore departed upward to a criminal history category of II. On this basis, the district court denied

application of the safety valve provisions. The district court calculated the guidelines range for

Counts 1 and 2 as 121 to 151 months and sentenced Godsey to concurrent terms at the maximum of

that range—151 months. The district court initially calculated the guidelines range for Count 3 as

70 to 78 months and varied downward to a 24-month sentence to run consecutively to the sentence

imposed on Counts 1 and 2, for a total sentence of 175 months of imprisonment. The district court

imposed a lifetime of supervised release. After the sentencing hearing was adjourned, the district

court reconvened the parties and recalculated the guidelines range for Count 3 as 21 to 27 months.

As the 24-month sentence on Count 3 was within the recalculated range, the district court did not

alter its previously announced sentence.

        This timely appeal followed.        Godsey challenges his sentence as procedurally and

substantively unreasonable. In the alternative, Godsey asserts that the government breached the plea

agreement by taking positions during the sentencing hearing that were inconsistent with the

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United States v. Godsey

stipulations and recommendations contained in the plea agreement. The government concedes that

Godsey’s sentence is not procedurally reasonable because the district court incorrectly calculated the

guidelines range and agrees that a remand for resentencing is appropriate. The government contends

that Godsey’s other claims of procedural and substantive unreasonableness are moot in light of the

need for resentencing.

        We review the district court’s sentencing determination for procedural and substantive

reasonableness under a deferential abuse-of-discretion standard. United States v. Battaglia, 624 F.3d

348, 350 (6th Cir. 2010). We “must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines range . . . .”

Gall v. United States, 552 U.S. 38, 51 (2007).

        As the government concedes, the district court incorrectly calculated the guidelines range for

Counts 1 and 2, overlooking the three-level reduction for Godsey’s acceptance of responsibility.

Reducing the base offense level of 32 by three levels for acceptance of responsibility would result

in a total offense level of 29, which, when combined with a criminal history category of II, would

yield a guidelines range of 97 to 121 months of imprisonment—not 121 to 151months as calculated

by the district court.

        In addition, the government correctly notes that the sentencing guidelines in effect on the date

of Godsey’s sentencing incorporated the FSA-based amendments, and would appear to reduce

Godsey’s offense level by an additional two levels. In accordance with the FSA, the Sentencing

Commission issued an emergency amendment to the guidelines, effective November 1, 2010, that

reduced the base offense level for various quantities of crack cocaine. As Godsey was sentenced on




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United States v. Godsey

November 22, 2010, three weeks after the amendment took effect, the amended guideline should

have been applied.

       While the Government has declined to address some additional issues properly raised by

Godsey, judicial economy warrants our addressing three of them. See United States v. McDaniel,

398 F.3d 540, 551 (6th Cir. 2005).

       Godsey argues that the district court improperly relied on incident reports involving

allegations of dissimilar uncharged conduct to depart from criminal history category I to II. USSG

§ 4A1.3(a)(1) allows an upward departure “[i]f reliable information indicates that the defendant’s

criminal history category substantially under-represents the seriousness of the defendant’s criminal

history or the likelihood that the defendant will commit other crimes.” Types of information that

may form the basis for such an upward departure include “[p]rior similar adult criminal conduct not

resulting in a criminal conviction.” USSG § 4A1.3(a)(2)(E) (emphasis added). Although Godsey’s

presentence report set forth a lengthy list of arrests and other criminal conduct not resulting in

charges or convictions, only one prior arrest involved drug trafficking. The district court moreover

stated that it would disregard many of these incidents for sentencing purposes. An upward departure

based on criminal history was therefore not warranted.

       In any event, the district court erroneously used the criminal history departure to deny Godsey

safety valve relief. The safety valve provisions of 18 U.S.C. § 3553(f) and USSG § 5C1.2(a) require

the district court to impose a guidelines sentence without regard to any statutory minimum sentence

if the defendant meets certain criteria. To be eligible for safety valve relief, a defendant must “not

have more than 1 criminal history point, as determined under the sentencing guidelines.” 18 U.S.C.

§ 3553(f)(1); see also USSG § 5C1.2(a)(1). The presentence report found that Godsey had zero

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United States v. Godsey

criminal history points, but the district court denied application of safety valve relief because his

criminal history category was under-represented. We have held that a departure based on the

inadequacy of a defendant’s criminal history category under USSG § 4A1.3 does not affect the

defendant’s criminal history score or eligibility for safety valve relief. United States v. Penn, 282

F.3d 879, 881-82 (6th Cir. 2002). The safety valve provision should accordingly have been applied,

which in turn would reduce his offense level by two levels. USSG § 2D1.1(b)(16).

       The district court also erred in ungrouping Godsey’s three counts and calculating one

guidelines range for Counts 1 and 2 and another range for Count 3. USSG § 3D1.2(d) requires the

grouping of the drug offenses in this case.

       Godsey requests that we reassign his case to a different district court judge upon remand.

Our authority under 28 U.S.C. § 2106 to remand a case to a different judge “‘is an extraordinary

power and should rarely be invoked. . . . [R]eassignments should be made infrequently and with the

greatest reluctance.’” Armco, Inc. v. United Steelworkers of Am., 280 F.3d 669, 683 (6th Cir. 2002)

(quoting United States v. Winters, 174 F.3d 478, 487 (5th Cir. 1999)). In determining whether

reassignment is necessary, we consider: “(1) whether the original judge would reasonably be

expected to have substantial difficulty in putting out of his or her mind previously expressed views

or findings; (2) whether reassignment is advisable to preserve the appearance of justice; and

(3) whether reassignment would entail waste and duplication out of proportion to any gain in

preserving the appearance of fairness.” Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006).

       Reassignment is not necessary in this case. We believe that the sentencing judge would not

have substantial difficulty in setting aside his previously expressed views regarding the identified




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guidelines issues and that there is a benefit to having Godsey resentenced by the judge who has

presided over his case, as well as the cases of his three co-defendants, from the beginning.

       For the foregoing reasons, we VACATE Godsey’s sentence and REMAND to the district

court for resentencing. Resentencing shall be consistent with this opinion, but our remand is

otherwise general rather than limited.




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