               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0736n.06

                                            No. 12-5564
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                          Aug 08, 2013
                                FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff - Appellee,                               )
                                                           )
               v.                                          )
                                                           )        ON APPEAL FROM THE
WILLIAM H. LONG,                                           )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE EASTERN
       Defendant - Appellant.                              )        DISTRICT OF TENNESSEE
                                                           )


BEFORE: KEITH, CLAY, and KETHLEDGE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. William H. Long appeals the 135-month sentence he

received after pleading guilty to nineteen counts of extortion under color of right, 18 U.S.C. § 1951,

six counts of money laundering, 18 U.S.C. § 1956(a)(3)(A), one count of providing a firearm and

ammunition to a convicted felon, 18 U.S.C. § 922(d), and one count of possession with intent to

distribute over five kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A).1 Long claims that the

Government’s refusal to file a substantial assistance motion on his behalf was unconstitutional. He

also appeals the procedural and substantive reasonableness of his sentence. For the reasons detailed

below, the district court’s judgment is affirmed in its entirety.




       1
          This is Long’s second appeal to the Sixth Circuit. His first sentence was vacated as
procedurally unreasonable and remanded to recalculate his base offense level. See generally United
States v. Long, 457 F. App’x 534 (6th Cir. 2012).
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Page 2


I.         Background

           On February 28, 2008, a federal grand jury returned a twenty-eight count indictment against

William “Billy” Long, the elected Sheriff of Hamilton County, Tennessee. Pursuant to a sealed plea

agreement, Long pleaded guilty to the first twenty-seven counts. His case stemmed from a reverse

sting operation by the Federal Bureau of Investigation (FBI) that lasted from April 2007 to February

2008. The Presentence Investigation Report described Defendant’s preexisting relationship with

Eugene Overstreet, the FBI’s cooperating witness (“CW”). Overstreet went on to wear an

audio/video recording device on his person, which captured Defendant perpetrating the crimes to

which he pleaded guilty. He perpetrated these crimes while acting in his official capacity as county

sheriff.

II.        U. S. Sentencing Guideline § 5K1.1 Motion for Substantial Assistance

           Pursuant to the plea agreement, the Government consented to filing a substantial assistance

motion if, in its assessment, it concluded that Defendant had provided substantial assistance. In a

memorandum, it concluded that Defendant had not because: (1) third-party assistance provided on

Defendant’s behalf was disproportionate to Defendant’s crimes and created a conflict of interest, (2)

Defendant had no personal knowledge of information he claimed was relevant to a separate

corruption case, and (3) defense counsel’s prior treatment of Overstreet, a potential witness in the

other corruption case. Defendant filed motions to compel the Government to file the substantial

assistance motion, alleging unconstitutional motive. The district court denied the motions upon the




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finding that the Government had legitimate and rational reasons for finding Defendant’s assistance

insubstantial.

        Defendant appeals the district court’s factual finding that the Government did not harbor an

unconstitutional motive in refusing to file a § 5K1.1 substantial assistance motion in violation of

Wade v. United States, 504 U.S. 181 (1992). Specifically, he alleges that the Government sought

to retaliate against him for exercising his Sixth Amendment rights to the effective assistance of

counsel and confrontation. As evidence he submits the Government’s memorandum, which lambasts

defense counsel’s choice to disclose Overstreet’s informant status and attack his credibility during

a press conference as inconsistent with substantial assistance. Defense counsel’s behavior was one

of three reasons the Government cited for refusing to file the motion. A district court’s interpretation

and application of the U.S. Sentencing Guidelines is reviewed de novo while its factual findings

underlying the application of the Guidelines are reviewed for clear error. United States v. Hawkins,

274 F.3d 420, 426 (6th Cir. 2001). We find clear error when a review of the entire record leaves us

with a “definite and firm conviction that a mistake has been committed.” United States v. Lalonde,

509 F.3d 750, 763 (6th Cir. 2007) (internal quotation and citation omitted). We are not left with

such a conviction here.

        Section § 5K1.1 of the Sentencing Guidelines allows a sentencing court to depart below the

advisory range if the government files a motion indicating that a defendant has provided them with

substantial assistance in the investigation or prosecution of another person who has committed a

crime. U.S. Sentencing Guidelines Manual § 5K1.1, cmt. nn. 1–2. In Wade, the Supreme Court held

that Section § 5K1.1 “gives the Government a power, but not a duty, to file a motion when a

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defendant has substantially assisted.” Wade, 504 U.S. at 185. However, “federal district courts have

authority” to review and grant relief if a prosecutor’s refusal to file a substantial assistance motion

is based on an unconstitutional motive. Id. at 185–86. For relief, a defendant must make “a

substantial threshold showing.” Id. at 186. This is the only Supreme Court case to address this

matter.2

       Defendant contends that the Government has an unconstitutionally vindictive motive in

violation of the Sixth Amendment because one of the three reasons the Government refused to file

was Defendant’s act of publicly disclosing Overstreet’s informant status and attacking his credibility.

“[W]hile an individual certainly may be penalized for violating the law, he just as certainly may not

be punished for exercising a protected statutory or constitutional right.” United States v. Goodwin,

457 U.S. 368, 372 (1982).

       There are two ways in which a defendant can prove prosecutorial vindictiveness. In this case,

Defendant has the burden of proving actual prosecutorial vindictiveness. Alabama v. Smith, 490

U.S. 794, 799 (1989). To prove actual vindictiveness, a defendant must present objective evidence

that the prosecutor’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 prevail on appeal, Defendant must

present evidence that leaves us firmly convinced that the district court was mistaken in its factual




       2
         Sixth Circuit precedent is unclear on how to approach a Wade claim beyond holding that
appellate review is limited only to whether the Government had an unconstitutional motive in
refusing to file a substantial assistance motion and does not permit review of the Government’s
decision for any other reason. See United States v. Lukse, 286 F.3d 906, 909 (6th Cir. 2002).

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finding that the Government was not unconstitutionally motivated in its refusal. Defendant has not

presented such evidence.

       In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the Supreme Court reviewed the motives

behind a prosecutor’s charging decision. Its reasoning, nevertheless, is instructive here because both

a charging decision and the decision whether to file a § 5K1.1 motion are largely discretionary and

this discretion is given considerable deference. Compare Bordenkircker, 343 U.S. at 364 (“[S]o long

as the prosecutor has probable cause to believe that the accused committed an offense defined by

statute . . . what charge to file or bring before a grand jury [] generally rests entirely in his

discretion.”) with Wade, 504 U.S. at 185 ( “[T]he Government [has] a power, not a duty, to file a

motion when a defendant has substantially assisted.”) and U.S. Sentencing Guidelines Manual §

5K1.1, cmt. n.3. (“Substantial weight should be given to the government’s evaluation of the extent

of the defendant’s assistance . . . .”). The Bordenkircher Court held that the defendant failed to

prove actual vindictiveness when the government made good on a threat to indict a defendant with

an additional charge punishable by life imprisonment if he refused to plea. Id. at 358–59. “[S]o long

as the accused is free to accept or reject the prosecution’s offer[,]” the Court held, “discouraging []

the defendant’s assertion of his trial rights” is “an inevitable and permissible” part of the plea

bargaining process. Id. at 363, 364 (internal punctuation omitted).

       In addition to defense counsel’s behavior, the Government proffered other reasons for

refusing to file the motion: the lack of proportionality between Defendant’s crimes and the third-

party assistance provided on his behalf; the conflict of interest apparent in accepting the third-party

assistance; and Defendant’s lack of personal knowledge of any events relevant to a separate case.

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The district court found the first reason was rational and legitimate because Defendant pleaded to

twenty-seven offenses—including nineteen counts of extortion, six counts of money laundering, and

one count of drug trafficking—while the third-party assistance only secured a state misdemeanor

offense—involving half an ounce of marijuana and three prescription pills worth about $120. The

district court reasoned the conflict of interest was rational and legitimate because the third party

assistance was provided to Defendant’s former employer before the federal government agreed to

the third party assistance. Finally, Defendant does not dispute the Government’s characterization

that he lacks personal knowledge of events relevant to a separate case. For these reasons, we are not

firmly convinced that the district court was mistaken in concluding that the Government’s refusal

was not based on actual vindictiveness for any action taken by defense counsel rather than “its

rational assessment of the cost and benefit that would flow from moving.” Wade, 504 U.S. at 187.

Cf. Goodwin, 457 U.S. at 380 n.11 (“A charging decision does not levy an improper ‘penalty’ unless

it results solely from the defendant’s exercise of a protected legal right, rather than the prosecutor’s

normal assessment of the societal interest in prosecution.”).

III.    Reasonableness of the Sentence

        Defendant challenges the reasonableness of his sentence. Defendant’s calculated advisory

Guideline range was 135–68 months. The district court imposed concurrent terms of 135 months

for each of his extortion, money laundering, and drug trafficking offenses and 120 months for

providing a firearm to a convicted felon. The terms were at the bottom end of Defendant’s advisory

range. We review a district court’s sentencing determination “under a deferential abuse-of-discretion

standard for reasonableness.” Lalonde, 509 F.3d at 769 (quoting Gall v. United States, 552 U.S. 38,

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128 S.Ct. 586, 591 (2007)) (internal quotations omitted). This review contains both a procedural and

a substantive component, addressing the former first and then the latter. Id. After a thorough review

of the record, we affirm Defendant’s sentence.

       Defendant claims the district court committed procedural error by failing to explain its

rejection of his military service and loss of pension as mitigating factors. There are three steps in

our procedural reasonableness review, ensuring that the district court:

       (1) properly calculated the applicable advisory Guidelines range; (2) considered the
       § 3553(a) factors as well as the parties’ arguments for a sentence outside the
       Guidelines range; and (3) adequately articulated its reasoning for imposing the
       chosen sentence, including any rejection of the parties’ arguments for an outside-
       Guidelines sentence and any decision to deviate from the advisory Guidelines range.

United States v. Petrus, 588 F.3d 347, 351–52 (6th Cir. 2009).

       Defendant does not assert that the district court improperly calculated the advisory range.

Step two was properly executed: the district court stated that it had reviewed all the material

provided by Defendant and at sentencing Defendant presented argument on his military service and

loss of pension. Step three was properly executed as well. It is apparent from the context and the

record that Long’s status as a public official was an aggravating factor that overshadowed his

mitigating factors. Thus, the record does not reveal any procedural error. See United States v.

Lapsins, 570 F.3d 758, 774 (6th Cir. 2009) (“A less lengthy explanation will suffice for a within-

Guidelines sentence when ‘the record makes clear that the sentencing judge considered the

[defendant’s] evidence and arguments.”)(quoting Rita v. United States, 551 U.S. 338, 359 (2007)).

        On appellate review, sentences imposed within a properly calculated Guidelines range are

afforded a rebuttable presumption of reasonableness. United States v. Benson, 591 F.3d 491, 500

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(6th Cir. 2010); see also United States v. Smith, 358 F. App’x 634, 639 (6th Cir. 2009)). Defendant

cannot rebut the presumption of reasonableness by alleging that a sentence lower than the one at the

bottom end of his advisory range would have been sufficient to meet the statutory sentencing goals.

See United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006) (“[Defendant’s] mere allegation that

the sentence imposed is greater than necessary to achieve the goals of punishment outlined in

§3553(a) is insufficient to rebut the presumption of reasonableness.”).

IV.    Conclusion

       For the foregoing reasons, Defendant’s sentence is affirmed in its entirety.




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