                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0925n.06
                                                                                         FILED
                                     Nos. 10-1725, 10-1727
                                                                                    Aug 20, 2012
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,               )
                                        )
      Plaintiff-Appellee,               )              ON APPEAL FROM THE
                                        )              UNITED STATES DISTRICT
v.                                      )              COURT FOR THE WESTERN
                                        )              DISTRICT OF MICHIGAN
SOLOMON HAKEEM JOHNSON,                 )
                                        )
                                                                 OPINION
      Defendant-Appellant.              )
_______________________________________ )


Before: COLE and MERRITT, Circuit Judges, and VARLAN, District Judge.*

       THOMAS A. VARLAN, District Judge. Resolving charges from various indictments

globally, defendant-appellant Solomon Hakeem Johnson (“Johnson”) pled guilty to charges of

conspiracy to possess and possess with intent to distribute cocaine base, possession with intent to

distribute an unspecified quantity of cocaine base, and two charges of armed robbery. A separate

indictment charging Johnson with a third count of bank robbery was dismissed without prejudice.

After hearing argument on Johnson’s objections to the Presentence Investigation Report (“PSR”) at

the sentencing hearing, the district court applied a two-level reduction for acceptance of

responsibility under U.S. Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”) § 3E1.1(a),

but declined to apply the additional one-level decrease available under U.S.S.G. § 3E1.1(b). When

calculating the offense level, the district court also applied the two-point enhancement for

       *
       The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
Nos. 10-1725, 1727
United States v. Solomon Johnson


obstruction of justice under U.S.S.G. § 3C1.1. The district court sentenced Johnson to a term of

imprisonment of 240 months, to be followed by five years’ supervised release. The court set

restitution at $105,933.92, with a mandatory special assessment of $400.00.

       On a consolidated appeal from the sentences imposed in his two armed robbery cases,

Johnson argues that (1) the district court erred in declining to award a third one-level reduction

pursuant to U.S.S.G. § 3E1.1(b), when it found that one of Johnson’s guilty pleas was untimely; and

(2) the district court erred when it applied a U.S.S.G. § 3C1.1 enhancement for obstruction of justice

under the facts of the case because no statement made by Johnson affected the administration of

justice. For the reasons explained herein, we affirm the judgment of the district court with regard

to the obstruction of justice enhancement, and vacate and remand for resentencing with regard to the

additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b).

                                       I. BACKGROUND

       Johnson’s appeal involves three criminal cases against him, all brought in the Western

District of Michigan. On February 5, 2009, a federal grand jury returned an indictment against

Johnson and others, charging him in two counts with conspiring to possess with intent to distribute

cocaine base (Case No. 1:09-CR-29). On April 16, 2009, the grand jury returned a six-count

superseding indictment in the same case, charging Johnson and others in count one with conspiring

to possess and distribute 50 grams or more of cocaine base, and alone in count five with distribution

of an unspecified quantity of cocaine base. Also on April 16, 2009, a single-count indictment

charging Johnson, Ronald Lavar Johnson (“Ronald Johnson”), and Keith Nickerson (“Nickerson”)


                                                  2
Nos. 10-1725, 1727
United States v. Solomon Johnson


with armed robbery of a bank was returned (Case No. 1:09-CR-123). On May 20, 2009, the grand

jury returned a single-count indictment, charging Johnson and one other individual with another

armed robbery of a bank (Case No. 1:09-CR-155). Finally, on October 8, 2009, Johnson, along with

Ronald Johnson and Nickerson, was charged in a two-count indictment with a third armed robbery

of a bank (count one), and conspiracy to obstruct justice and impede the prosecution in Case No.

1:09-CR-123 (count two), the other case charging the three co-defendants with armed robbery (Case

No. 1:09-CR-311).

       On September 16, 2009, Case No. 1:09-CR-123 was dismissed on motion from the

government without prejudice.1 In proceedings before the magistrate judge on November 5, 2009,

Johnson pled guilty and admitted to the robberies charged in Case Nos. 1:09-CR-155 and 1:09-CR-

311. At the same hearing, Johnson pled guilty to count five of the superseding indictment in Case

No. 1:09-CR-29, which charged him with distribution of an unspecified quantity of cocaine base on

a certain date. At the November 5, 2009 hearing, Johnson also attempted to enter guilty pleas to

count two of the indictment in Case No. 1:09-CR-311, charging him with obstruction of justice, and

count one of the superseding indictment in Case No. 1:09-CR-29, charging him with conspiracy to

possess and possess with intent to distribute 50 grams or more of cocaine base. However, after

questioning Johnson, the magistrate judge rejected his pleas to each of those counts. As to count one

of the superseding indictment in Case No. 1:09-CR-29, the magistrate judge was not satisfied with


       1
         The charge forming the basis for Case No. 1:09-CR-123 appears to have been the same
armed robbery of a bank charged in count one of Case No. 1:09-CR-311, to which Johnson pled
guilty on November 5, 2009.

                                                 3
Nos. 10-1725, 1727
United States v. Solomon Johnson


the factual basis for the quantity of cocaine base required to satisfy the elements of the statute under

which he was charged. Based on statements made by Johnson at the hearing, the magistrate judge

likewise found an insufficient factual basis for his guilty plea to count two of Case No. 1:09-CR-311,

the obstruction of justice charge.

        The basis for the obstruction of justice charge, as indicated by the government at the plea

hearing, was Johnson, Ronald Johnson, and Nickerson’s alleged intimidation of Raymond Collins

(“Collins”) while the four were incarcerated together at Newaygo County Jail. After forming a belief

that Collins was cooperating with the government, Johnson and his co-defendants allegedly went

through his belongings and found confirmation for their belief. During this search, they also found

the name, address, and a photograph of Collins’s female friend, and Ronald Johnson allegedly

drafted a threatening letter to her, which she provided to the Federal Bureau of Investigation (“FBI”).

Afterward, the three defendants approached the corrections officers and informed them that for his

safety, Collins should not remain in the cell with them. At the plea hearing, Johnson admitted to

having rummaged through Collins’s belongings and informing the guard that Collins should not be

brought back “in order to avoid conflict.” (Plea Hr’g 41). Johnson denied having any involvement

in the drafting or having knowledge of the contents of the letter to Collins’s female friend.

        When the magistrate judge questioned Johnson about the facts of the bank robbery charged

in count one of the indictment in Case No. 1:09-CR-311, to which he successfully pled guilty,




                                                   4
Nos. 10-1725, 1727
United States v. Solomon Johnson


Johnson stated that he conspired to and committed the robbery with Duane Perry (“Perry”),2 who was

not charged in the indictment in that case, and a female driver. He further indicated that Perry had

died prior to the November 5, 2009, hearing.

       The district court entered a case management order instructing the parties to schedule any

pleas to be entered at least one week prior to the final pretrial conference, and further advising that

any defendant not entering a guilty plea prior to the specified date would not be eligible for a three-

level reduction under U.S.S.G. § 3E1.1. The parties appeared for a scheduled final pretrial

conference on November 23, 2009, and at that hearing, Johnson successfully entered a guilty plea

to count one of the superseding indictment in Case No. 1:09-CR-29, charging him with conspiracy

to possess and possess with intent to distribute 50 grams or more of cocaine base.3

       Utilizing the Guidelines, the PSR consolidated all three cases in which he pled guilty and

recommended that Johnson’s adjusted offense level was 32, with an accompanying criminal history

category of VI. The PSR included no reduction for acceptance of responsibility but did include a

two-level increase in offense level as an adjustment for obstruction of justice pursuant to U.S.S.G.

§ 3C1.1, basing this recommendation on Johnson’s representations that his deceased cousin, Perry,

committed one of the charged robberies with him. The PSR indicated that Nickerson informed law


       2
       Perry’s first name is spelled several different ways throughout the record, including “Dwain”
and “Duane.”
       3
        After Johnson entered a guilty plea to count one in Case No. 1:09-CR-29, the only remaining
charge set for trial was count two of 1:09-CR-311, the conspiracy to obstruct justice charge. The
government moved to dismiss that charge on December 28, 2009, and the district court ordered the
dismissal on December 29, 2009.

                                                  5
Nos. 10-1725, 1727
United States v. Solomon Johnson


enforcement that Johnson conspired with Ronald Johnson and Nickerson for Johnson to take the

blame for the robbery and to implicate Perry, as he was already deceased and had a stature similar

to Ronald Johnson’s. During his interview with the probation officer, Johnson continued to claim,

as he did at the plea hearing on November 5, 2009, that he committed the armed robbery charged in

1:09-CR-311 with Perry alone and that Ronald Johnson and Nickerson were not involved, despite

his learning that the other two each pled guilty to the robbery charge. After adding multiple-count

adjustments pursuant to U.S.S.G. § 3D1.4, according to the PSR, the appropriate offense level was

35, which together with a criminal history category of VI, yielded an advisory Guidelines range of

292 to 365 months’ imprisonment.

       In relevant part to this appeal, prior to his sentencing hearing, Johnson objected to the PSR’s

non-application of a three-level reduction for acceptance of responsibility, claiming that he entered

timely guilty pleas in all cases and that he was honest in revealing all facts known to him. Johnson

also objected to the recommended two-level enhancement for obstruction of justice because he

maintained that he committed the robbery with Perry and was honest in reporting as such, and

because he properly admitted his personal involvement in the robbery in question. At the sentencing

hearing on May 20, 2010, the government agreed with the recommended Guidelines range and other

findings in the PSR.4




       4
           Johnson did not enter into plea agreements in any of his cases.

                                                   6
Nos. 10-1725, 1727
United States v. Solomon Johnson


        Prior to announcing the sentence imposed, the district court heard argument on Johnson’s

objections to the PSR.5 Addressing the objection related to acceptance of responsibility, Johnson’s

counsel asserted that from the beginning of her representation of him, “it was never about whether

or not he was actually guilty of the crime” and that she always knew that Johnson intended to plead

guilty. (Sent. Hr’g 9). Johnson’s counsel addressed that as she understood the situation, what was

preventing him from obtaining the offense-level reduction for acceptance of responsibility was that

he told the court that he committed one of the armed robberies with Perry, rather than with his co-

defendants. Counsel contended that Johnson had always indicated to her that he committed the

robbery with Perry, and she proffered that Johnson had committed many robberies, as indicated in

the PSR. She also suggested that he may have been confused as to which specific robbery was

charged in count one of Case No. 1:09-CR-311. Counsel asserted that Johnson maintaining that he

committed the robbery with Perry did not benefit him in any way and did not change the fact that he

was personally accepting responsibility for the charged robberies. As to the obstruction of justice

enhancement, Johnson’s counsel argued that it overlapped with the acceptance of responsibility issue

in that it related to Johnson’s having stated under oath that he committed the robbery with Perry.

Counsel again asserted that Johnson maintained throughout all proceedings that he committed the



        5
        In addition to the two objections pertinent to this appeal, the district court ruled that it would
apply a one-to-one ratio of crack to powder cocaine, in essence granting Johnson’s objection to the
weight of the drugs. Additionally, the district court overruled Johnson’s objection to his perceived
double counting for restraint of the bank employee under U.S.S.G. § 2B3.1(b)(4)(B), as well as his
objections to adjustments based on robbery involving a financial institution and the amount of money
stolen during the robberies.

                                                    7
Nos. 10-1725, 1727
United States v. Solomon Johnson


robbery with Perry, and she contended that his doing so did not obstruct justice because his

assertions did not impede the investigation in any way.

        The government responded that the PSR’s recommendation that the acceptance of

responsibility reduction not be granted was proper “because the guideline clearly says that if you

don’t truthfully admit the conduct or you falsely deny relevant conduct, then you are not entitled to

acceptance of responsibility.” (Sent. Hr’g 18). In bolstering this point, the government pointed to

the fact that Johnson never admitted to Ronald Johnson and Nickerson’s involvement in the robbery.

The district judge challenged the claim that this counted as Johnson’s relevant conduct under the

Guidelines, stating:

        I abhor the fact that he committed perjury, in all likelihood; I mean there is just no
        question based on everything I have read, based on the fact that the other two men
        have entered guilty pleas. But for purposes of scoring this offense level, or this
        reduction, it really - - and maybe it’s splitting hairs - - but he did truthfully admit his
        conduct. He did not in any way, as I understand it, and I, again, I have read the
        transcripts, the fact that he misrepresented, flat out lied under oath, which, you know,
        I think would have opened him up to a perjury charge, I don’t see that as failing to
        accept responsibility. That’s what this section of the guidelines is all about, I think.

(Sent. Hr’g 19). The government then discussed the letter writing to Collins’s girlfriend intended

to silence Collins, before clarifying that an acceptance of responsibility reduction should not be

awarded because 1) Johnson lied about the others involved in the robbery, and 2) he engaged in

obstruction of justice by participating in writing the letters to Collins’s girlfriend and by lying to the

court and to the probation officer preparing the PSR. Counsel for the government contended, “that’s

normally the general rule is you do not get acceptance of responsibility if you’ve engaged in

obstruction of justice.” Sent. Hr’g 23–23).

                                                    8
Nos. 10-1725, 1727
United States v. Solomon Johnson


          In announcing her rulings on Johnson’s objections pertinent to this appeal, the district judge

stated:

          First of all, with regard to the acceptance of responsibility and timely plea, I’m going
          to grant the objection raised by the defense because I believe, number one, that in a
          strict reading of 3E1.1, even if we look at the relevant conduct issue, I think the
          defendant is entitled to that reduction in offense level. And, number two, I think that
          - - I think it’s clear that he is entitled to it. Okay.

          With regard to the obstruction of justice under 3C1.1, I think that’s a very close call
          because of all of the factual underpinnings in this case. But I do think that the
          government makes its arguments very well; that there was this attempt not only to lie
          about the participation, the joint participation, but all of the other things that were
          going on around that. So I’m going to overrule and deny that objection.

(Sent. Hr’g 35).

          When preparing to announce the adjusted Guidelines range and sentence imposed by the

court, in reviewing the offense level reduction in light of the district judge’s rulings on Johnson’s

objections, the probation officer present at the hearing asked the court whether she was granting

Johnson a “two-level or a three-level decrease” for acceptance of responsibility. (Sent. Hr’g 43).

At first the judge answered that the decrease was three offense levels, but she then stated, “Although

I should maybe back up on that.” (Id.). The court then inquired into the timeliness of the plea to the

drug conspiracy charge from Case No. 1:09-CR-29, the one in which his plea was initially rejected

on November 5, 2009. Counsel for the government pointed out that Johnson ended up pleading in

front of the district judge at the pretrial conference on November 23, 2009, only one week before the

trial date, which was set for December 1, 2009. The district judge determined that the plea to that

charge was not timely, after considering the fact that the government had already moved witnesses


                                                     9
Nos. 10-1725, 1727
United States v. Solomon Johnson


in custody to the area to testify and had filed its trial brief and proposed jury instructions at the time

of the plea at the pretrial conference. The attorney for the government stated that once he had done

such preparations in a case, he “typically would not ask for the additional point” under U.S.S.G. §

3E1.1(b). (Sent. Hr’g 44).

        At that point, defense counsel argued that the government was aware that Johnson planned

to enter a guilty plea to the charge in question and that he had indicated his intention to do so “early

on.” (Id. at 45). Defense counsel further asserted that she felt she had put the government “on notice

that we were going to do everything in our power to come to some sort of a resolution on the drug

case, in as timely a manner as possible[.]” (Id.). The clerk then pointed out to the judge that her

Fifth Amended Case Management Order in the case stated that:

        This Court cannot allocate its resources efficiently if it must open court for a final
        pretrial conference. Therefore, if court is open for a final pretrial conference, even
        if a defendant pleads guilty at the time set for the final pretrial conference, the
        defendant will not receive the one-level reduction in offense level described in
        U.S.S.G. 3E1.1(b).

(Id. at 45–46). After hearing that, the court remarked that the quote from the case management order

“pretty much forecloses the additional point [under U.S.S.G. 3E1.1(b)].” (Id. at 46).

        The final adjusted total offense level determined by the court was 32, with a criminal history

category of VI, rendering an advisory imprisonment range of 210 to 262 months of imprisonment,

with three to five years of supervised release, a fine range of $17,500 to $5 million, which was

waived, restitution of $105,993.92, and a mandatory special assessment of $400. The district court

sentenced as follows:


                                                   10
Nos. 10-1725, 1727
United States v. Solomon Johnson


       So pursuant to the Sentencing Reform Act of 1984, as to docket number 1:09-CR-29,
       Count 1, the drug conspiracy, the mandatory minimum of ten years imprisonment is
       imposed.

       As to docket number 1:09-CR-29, Count 5 the drug possession with intent to
       distribute, I think that’s a fairly insignificant part of this case, and my sentence on
       that charge is 60 months.

       As to docket number 1:09-CR-155, armed bank robbery, I think it’s pretty clear that
       my thought is that this offense is a serious one and deserves serious punishment.
       And my sentence there is for 240 months imprisonment.

       And, likewise, docket number 1:09-CR-311, the second armed robbery charge, 240
       months imprisonment.

       All of these sentences to run concurrently and to be followed by five years of
       supervised release subject to standard conditions or reporting and remaining law
       abiding.

(Id. at 62-63). This timely appeal followed.

                                          II. ANALYSIS

       A. Obstruction of Justice

        We first address Johnson’s argument that the district court erred in applying a two-level

increase for obstruction of justice under U.S.S.G. § 3C1.1. When reviewing a district court’s

application of an obstruction of justice enhancement under U.S.S.G. § 3C1.1, “we employ a

three-step process of review.” United States v. Roberts, 243 F.3d 235, 237 (6th Cir. 2001) (citation

omitted). The three steps are as follows:

       First, this Court applies a clearly erroneous standard to the district court’s findings
       of fact with respect to the enhancement. Second, a district court’s determination of
       whether facts constitute obstruction of justice is a mixed question of law and fact that
       requires de novo review. Third, once there has been a finding that the defendant


                                                 11
Nos. 10-1725, 1727
United States v. Solomon Johnson


        obstructed justice, application of the enhancement is mandatory, so review of the
        enhancement at that point is de novo.

United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (citations omitted). In light of Buford

v. United States, 532 U.S. 59, 66 (2001), this Court also gives “due deference” to the district court’s

application of the Guidelines to the facts of the particular case. Id. at 473; see also United States v.

Cline, 362 F.3d 343, 350 (6th Cir. 2004).

        Johnson asserts that an attempt to obstruct justice requires specific intent and an overt act

constituting a substantial step toward the commission of the obstruction. Johnson contends that no

actual obstruction of justice occurred when he, Ronald Johnson, and Nickerson discussed the fact

that Johnson would tell the FBI that he and his dead cousin committed the robbery charged in Case

No. 1:09-CR-311 together. This assertion is based on Johnson’s argument that the record contains

no indication that law enforcement ever investigated or acted upon his claims at the plea hearing and

during the presentence investigation for the PSR, that he had committed the robbery in question with

his cousin, rather than with his co-defendants. The premise for this argument is that Johnson,

Ronald Johnson, and Nickerson were all charged prior to Johnson’s assertion at his plea hearing, and

that Ronald Johnson and Nickerson had both already pled guilty at the time of his statements in

preparation of the PSR. Johnson thus claims that the statements he made about his cousin’s

involvement or the lack of involvement of his co-defendants were moot and irrelevant to his co-

defendants’ cases, so the statements had no potential to obstruct justice. As Johnson proceeds under

an assumption that his two-level enhancement under § 3C1.1 is based on his attempt to obstruct

justice, he claims that any statements made cannot be considered such an attempt since it was

                                                  12
Nos. 10-1725, 1727
United States v. Solomon Johnson


essentially impossible for him to impact law enforcement’s case at the points at which they were

made.

        The government responds that the district court did not clearly err when it applied the two-

level obstruction of justice increase because of the defendant’s alleged involvement in the sending

of threatening letters, and because of Johnson’s false statements to the district court and to the

probation officer that Perry, rather than his co-defendants, committed one of his charged robberies

with him. The government asserts that false statements made to the court during guilty pleas may

serve as the basis for increases under § 3C1.1 and that the district court’s finding that Johnson lied

under oath during his guilty plea rendered the enhancement proper.

        A two-level enhancement for obstruction of justice is appropriate where “the defendant

willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice

during the course of the investigation, prosecution, or sentencing of the instant offense of

conviction[.]” U.S. Sentencing Guidelines Manual § 3C1.1 (2008). Application Note 4 of § 3C1.1

contains a “non-exhaustive list” of the types of conduct to which the obstruction of justice

enhancement applies. The application note instructs, in relevant part, that the enhancement is

appropriate where the defendant has threatened or intimidated a co-defendant or witness, directly or

indirectly, or attempted to do so, where the defendant has provided materially false information to

a judge or magistrate judge, and where the defendant has provided materially false information to

a probation officer related to a presentence report. U.S. Sentencing Guidelines Manual § 3C1.1 cmt.




                                                 13
Nos. 10-1725, 1727
United States v. Solomon Johnson


n.4(a), (g), (h). The burden is on the government to prove obstruction of justice by a preponderance

of the evidence. United States v. Dunham, 295 F.3d 605, 609 (6th Cir. 2002) (citations omitted).

        In this case, in finding that the obstruction of justice enhancement applied, the district court

found “that there was this attempt not only to lie about the participation, the joint participation, but

all of the other things that were going on around that.” (Sent. Hr’g 35). Earlier in the sentencing

hearing, the court stated that Johnson “in all likelihood” “committed perjury” based on everything

the judge had read about the case, including the fact that Ronald Johnson and Nickerson entered

guilty pleas in the case in which they were charged with committing armed robbery with Johnson,

and that Johnson “misrepresented, flat out lied under oath” about their involvement in the robbery.

(Id. at 19).

        Moreover, in mentioning “all of the other things that were going on around that,” the district

court was likely referring to the threatening letters written by Ronald Johnson, the drafting of which

Johnson was present during and may have played a part in. However, we need not speculate in order

to reach a decision here. That the district court found that Johnson attempted to lie about “the joint

participation” is sufficient for an application of the obstruction of justice enhancement. This is

particularly true in light of the fact that the statements made by Johnson about Perry’s involvement

in the robbery charged in Case No. 1:09-CR-311, which the district court found to be false, were

made to both a judge under oath and to the probation officer preparing the PSR. See U.S. Sentencing

Guidelines Manual § 3C1.1 cmt. n.4(g), (h).




                                                  14
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United States v. Solomon Johnson


        The government was required to prove obstruction of justice by a preponderance of the

evidence at the sentencing hearing, and the district court’s finding that it met that burden is entitled

to due deference. See Buford, 532 U.S. at 66; Dunham, 295 F.3d at 609. The district court’s finding

that Johnson lied under oath about the participation of his co-defendants was not clearly erroneous

when reviewed in light of the fact that each of the co-defendants entered a guilty plea to that charge.

        We therefore find that the district court did not err in applying the two-level enhancement

for obstruction of justice under U.S.S.G. § 3C1.1.

        B. Acceptance of Responsibility

        We next turn to Johnson’s argument that the district court erred in denying him a one-level

reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b). The district court’s

decision to deny Johnson an additional one-level reduction for acceptance of responsibility is entitled

to great deference on review. U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.5 (2008). The

decision is reviewed for clear error. United States v. Webb, 335 F.3d 534, 537–38 (6th Cir. 2003).

A district court’s decision is clearly erroneous only if this court “is left with the definite and firm

conviction that a mistake has been committed.” United States v. Boudreau, 564 F.3d 431, 435 (6th

Cir. 2009) (citations and quotation marks omitted).

        Johnson challenges the denial of an additional one-level reduction for acceptance of

responsibility for a lack of timeliness under § 3E1.1(b) because he entered timely guilty pleas in Case

Nos. 1:09-CR-311 and 1:09-CR-155 and because all parties were aware that he intended to plead

guilty to the charge remaining in Case No. 1:09-CR-29. In this regard, Johnson contends that the


                                                  15
Nos. 10-1725, 1727
United States v. Solomon Johnson


district court committed legal error when it used its decision that his untimely plea made him

ineligible for the additional § 3E1.1(b) reduction in Case No. 1:09-CR-29, to also deny him the

additional point reduction in Case No. 1:09-CR-155, to which he timely pled. Johnson further

argues that the government did not take a firm position on whether Johnson should have been

entitled to an additional point reduction. Johnson contends that the district judge “decided the plea

was not timely regardless of the government’s position because it was not entered until the time of

the final pretrial conference, finding the court’s Case Management Order and the ‘failing one fails

them all premise’ to be dispositive of the issue.” (Id. at 22–23). The government counters that the

fact that the government did not move for the third-level decrease, as required by the Guidelines,

directs that the district court did not err when it declined to grant the additional reduction. The

government further asserts that the district court provided the legitimate reason for denying Johnson

the third-level reduction under § 3E1.1(b), that Johnson did not enter his guilty plea in Case No.

1:09-CR-29 “until after the deadline set by the district court for timely pleas, and the record

demonstrates that the government was already engaging in trial preparation by the time of the

defendant’s guilty plea.” (Appellee Br. 17).

       Section 3E1.1 of the Guidelines provides for a possible reduction of three points for

acceptance of responsibility. Section 3E1.1(a) allows the district court to reduce the offense level

by two points if “the defendant clearly demonstrates acceptance of responsibility for his offense.”

U.S. Sentencing Guidelines Manual § 3E1.1(a). Section 3E1.1(b) allows for a reduction of one

additional point:


                                                 16
Nos. 10-1725, 1727
United States v. Solomon Johnson


       If the defendant qualifies for a decrease under subsection (a), the offense level
       determined prior to the operation of subsection (a) is level 16 or greater, and upon
       motion of the government stating that the defendant has assisted authorities in the
       investigation or prosecution of his own misconduct by timely notifying authorities
       of his intention to enter a plea of guilty, thereby permitting the government to avoid
       preparing for trial and permitting the government and the court to allocate their
       resources efficiently[.]

U.S. Sentencing Guidelines Manual § 3E1.1 (b). Application Note 6 to § 3E1.1 instructs that the

additional one-level reduction may be granted only upon a formal motion by the government at the

time of sentencing “because the [g]overnment is in the best position to determine whether the

defendant has assisted authorities in a manner that avoids preparing for trial.” U.S. Sentencing

Guidelines Manual § 3E.1.1, cmt. n.6 (2008); see also United States v. Coleman, 627 F.3d 205, 214

(6th Cir. 2010). The note further provides:

       The timeliness of the defendant’s acceptance of responsibility is a consideration
       under both subsections, and is context specific. In general, the conduct qualifying for
       a decrease in offense level under subsection (b) will occur particularly early in the
       case. For example, to qualify under subsection (b), the defendant must have notified
       authorities of his intention to enter a plea of guilty at a sufficiently early point in the
       process so that the government may avoid preparing for trial and the court may
       schedule its calendar efficiently.

U.S. Sentencing Guidelines Manual § 3E.1.1 cmt. n.6 (2008).

       In considering Johnson’s argument with regard to acceptance of responsibility, we must

consider the recent published Sixth Circuit panel decision in United States v. Mackety, 650 F.3d 621

(6th Cir. 2011), also originating in the Western District of Michigan. In Mackety, the defendant

entered into a plea agreement, and the government agreed in the agreement that it would not oppose

the defendant’s request for a two-level reduction for acceptance of responsibility under U.S.S.G. §


                                                   17
Nos. 10-1725, 1727
United States v. Solomon Johnson


3E1.1(a). Mackety, 650 F.3d at 622. Mackety entered his guilty plea on the day scheduled for the

final pretrial conference.6 Id. at 625. In determining the relevant advisory range under the

Guidelines, the district court granted the requested two-level reduction for acceptance of

responsibility. Id. at 623. The district court, in accordance with the policy from the district court’s

“Order Setting Final Pretrial and Trial dates,” declined to grant Mackety the third-level reduction

available under § 3E1.1(b). Id. at 624. The district court’s policy mandated: “A defendant who

waits until the time set for the final pretrial conference to plead guilty may not receive the one-level

reduction in offense level described in U.S.S.G. § 3E1.1(b), even if the government is prepared to

move for it.” Id.

        On appeal, Mackety argued that the district court’s policy was inconsistent with the discretion

Congress intended to give to the government under § 3E1.1(b) and that the government in his case

had interpreted the policy “as a categorical denial of a § 3E1.1(b) reduction for acceptance of

responsibility and thus did not move for it.” Id. The panel rejected the government’s argument that

the policy was consistent with case law because the government relied on cases that were decided

prior to the 2003 amendment to § 3E1.1(b), which specified that the third-level reduction under §

3E1.1(b) may only be granted on motion from the government. Id. at 626–25. The panel

additionally rejected the government’s argument that any error by the district court in implementing

and relying on its policy in sentencing Mackety was harmless. Id. at 625. Despite the government’s



        6
         The Mackety opinion indicates that the late timing of the defendant’s plea in that case was
due to a death in his defense counsel’s family. Mackety, 650 F.3d at 626.

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United States v. Solomon Johnson


contention on appeal that it would not have moved for the § 3E1.1(b) reduction even absent the

district court’s policy, the panel found that the policy “influenced the Government not to move for

a § 3E1.1(b) reduction and, in doing so, usurped the Government’s discretion to move for the §

3E1.1(b) reduction.” Id.

       At the sentencing hearing in Mackety, after discussion regarding the timing of the death in

defense counsel’s family and the timing of the guilty plea, the government advised the district court

that it would not move for the § 3E1.1(b) reduction. Id. at 626. The district court then stated that

it could not grant the third-level reduction because the government had not moved for it, but the

court also went on to state that it would have denied the motion, had the government made one. Id.

The panel determined that both the government and the probation officer believed the district court’s

policy that it would not grant a motion for a third-point reduction under § 3E1.1(b) if a defendant

entered a plea at the pretrial conference, which “contravenes § 3E1.1(b),” was mandatory and that

the court’s policy affected the government’s “prerogative and discretion to move for the § 3E1.1(b)

reduction[.]”   Id.   Accordingly, the panel found that Mackety’s sentence was procedurally

unreasonable and remanded for resentencing.

       The Mackety court also explained that counsel advised during argument that the district court

policy denounced in Mackety is not uncommon in the Western District of Michigan. Id. at 627. The

panel then provided an example policy of “[a] second Western District of Michigan judge,” which




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United States v. Solomon Johnson


at the time was posted on that court’s website.7 Although the court did not name the referenced

judge specifically, the policy quoted is the exact policy of the district judge, who sentenced Johnson

and which is at issue in the instant case.8 See id. at 627. The panel advised: “We take this

opportunity to advise that such policies should be discontinued immediately because they are

inconsistent with Congress’ intent that the Government make the decision whether to move for the

additional one-level reduction under § 3E1.1(b).” Id.

        As in Mackety, Johnson claims that the sentencing decision made by the sentencing judge

in this case was based in part on the fact that the guilty plea in one of his three cases was not entered

until the pretrial conference date, in violation of the district court’s case management order. Johnson

argues that the district court improperly found this to be dispositive of the issue. In fact, at the

sentencing hearing, after being reminded of the language of her case management order, the district

court stated that it “pretty much foreclose[d] the additional point.” (Sent. Hr’g 46). Additionally,

the government argues that one of the legitimate reasons for the district court’s denial of the one-

level reduction was that the guilty plea was not entered “until after the deadline set by the district


        7
         See www.miwd.uscourts.gov/rules_opinions.htm. The standing orders referred to by the
court in Mackety do not appear to remain on the Western District of Michigan’s website.
        8
        The case management order, which is quoted in Mackety, 650 F.3d at 627, and was recited
at Johnson’s sentencing hearing, provides:

        This Court cannot allocate its resources efficiently if it must open court for a final
        pretrial conference. Therefore, if court is open for a final pretrial conference, even
        if a defendant pleads guilty at the time set for the final pretrial conference, the
        defendant will not receive the one-level reduction in offense level described in
        U.S.S.G. 3E1.1(b).

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United States v. Solomon Johnson


court for timely pleas.” (Appellee Br. 17). All of these facts, combined with the panel’s finding in

Mackety that case management directives exactly like the one utilized in this particular case deny the

government the discretion it is intended to wield under § 3E1.1(b), lead to our conclusion that

Johnson’s case should be remanded for resentencing.

       In light of the Mackety court’s finding that blanket policies concerning the additional one-

level reduction for acceptance of responsibility available under U.S.S.G. § 3E1.1(b), like the one

utilized in this case, usurp the government’s discretion to move for a reduction, and because we find

that the district court’s policy affected the calculation of the Guidelines range in this case, we find

that Johnson’s sentence was procedurally unreasonable with regard to acceptance of responsibility.

Accordingly, we VACATE the sentence as to the issue of the one-level reduction under U.S.S.G.

§ 3E1.1(b) only, and REMAND for resentencing in light of this ruling.

                                        III. CONCLUSION

       For the reasons explained herein, we AFFIRM the judgment of the district court with regard

to the obstruction of justice enhancement, and VACATE and REMAND for resentencing with

regard to the additional one-level reduction for acceptance of responsibility under U.S.S.G. §

3E1.1(b).




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