NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0541n.06
No. 09-1231 FILED
Aug 23, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
v. ) On Appeal from the United States
) District Court for the Western
HERBERT L. LOVE, ) District of Michigan
Before: BOGGS, ROGERS, and COOK, Circuit Judges.
PER CURIAM. Herbert Love was indicted in 1994 and charged with conspiracy to distribute
cocaine, in violation of 21 U.S.C. §§ 846 and 841(a). He pled not guilty and proceeded to a jury trial
in Grand Rapids, Michigan. On June 27, 1994, howeverâ€"several days into his trialâ€"Love, who
was free on an unsecured bond, failed to appear and the trial was concluded in his absence. After
the close of evidence, the presiding judge instructed the jury that the government did not need to
prove a specific amount of drugs were involved in the conspiracy for the jury to find Love guilty.
Upon deliberation, the jury found Love guilty, without making a specific finding as to the amount
of cocaine for which he was responsible.
United States v. Love
Love, as it happened, had skipped town; he eluded justice for eleven years. In 2005,
however, he was eventually discovered living in Pomona, California by local police, who took him
into custody and returned him to Michigan for sentencing.1
A Presentence Investigation Report, originally prepared in August 1994 and supplemented
in 2006, indicated that the minimum statutory term of imprisonment was ten years, with a maximum
of life.2 It further indicated Love to have a criminal history category of II and a total offense level
of 40 (including a base offense level of 38 that was predicated on Love's being held accountable for
between 150 and 500 kilograms of cocaine, and a two-level enhancement for obstruction of justice
arising from his abscondment), resulting in a Guidelines range of 324â€"405 months of imprisonment.
The PSR nevertheless recommended a below-Guidelines sentence of 240 months "pursuant to 18
U.S.C. § 3553(a)(1) and (a)(2)(A)."
Love allegedly spent much of his time in Pomona doing odd jobs for senior citizens for
minimal pay and providing free haircuts for homeless persons in connection with a homeless
ministry at a local Baptist church. Nothing in the record suggests that he engaged in any criminal
activity following his abscondment from Michigan; he was discovered as a fugitive only after
providing his name to police who were investigating the mugging of one of Love's friends.
The PSR appears to have assumed that a decision by the court that Love was responsible for
a given amount of cocaine would affect the statutory minimum and maximum along with the
applicable Guidelines range. In reality, the statutory limits on Love's sentence were fixed by the fact
that he was convicted by the jury of conspiracy to distribute an undetermined amount of cocaine.
Pursuant to 21 U.S.C. § 841(b)(1)(C), he could have received anywhere from zero to 240 months
of imprisonment for the charged offense absent a finding that he had been previously convicted of
a felony, not the ten-years-to-life range that would have obtained had the jury found him to have
been responsible for more than five kilograms. Though the government filed an information alleging
that Love had previously been convicted of a felony drug offense in Texas, a circumstance that
would have increased Love's statutory maximum penalty to 360 months, Love contested the finality
of that conviction and the district court apparently did not rule on that issue before issuing its original sentencing decision.
[End Page 2]
United States v. Love
The district court sentenced Love on April 12, 2006. At that time, the judge found Love to
have been responsible for between 50 and 150 kilograms of cocaine, an amount below the PSR's
recommended calculation (and one that would have reduced Love's total offense level to 38, with
a recommended sentencing range of 262 to 327 months), but sentenced Love to the PSR-
recommended 240 months of imprisonment. See United States v. Love, 289 F. App'x 889, 890â€"91
(6th Cir. 2008). As it happened, that sentence matched the applicable statutory maximum sentence
given the fact that Love had been convicted of conspiracy to distribute an unspecified amount of
cocaine, but whether this was by chance or by design was not apparent from the record because the
district court did not explicitly re-calculate the Guidelines range after finding a decreased drug
quantity, nor did it discuss the statutory maximum penalty.
Love appealed his 240-month sentence, arguing that a jury ought to have determined the
quantity of cocaine for which he was responsible, that his counsel had been ineffective for failure
to raise that issue below, and that the district court erred in failing to calculate the proper Guidelines
range. A panel of this court vacated the sentence and remanded for re-sentencing on the basis of the
last of these grounds only, holding that, although 240 months was within the prescribed statutory
range, the district court had committed procedural error by failing to calculate the applicable
Guidelines range and by failing to evaluate the statutory maximum. Love, 289 F. App'x at 894.
The district court conducted a re-sentencing hearing on February 12, 2009. After repeating
his finding that Love had been responsible for 50 to 150 kilograms of cocaine during the course of
the conspiracy, the judge found Love to have a base offense level of 36, then added a two-level
enhancement for the obstruction of justice caused by Love's abscondment. The judge also found
[End Page 3]
United States v. Love
Love to have a criminal history category of II. The Guidelines version effective at that time, like the
version effective in 2006, specified a range of 262â€"327 months of imprisonment at offense level 38
and criminal history category II. See U.S.S.G. Ch.5, Pt.A (Nov. 2008). Unlike at the original
sentencing, at re-sentencing the judge explicitly indicated that Love had previously been convicted
of a felony drug offense and that the statutory maximum was therefore 360 months rather than 240
months. However, the court found that the circumstances, particularly the fact that Love was not "a
long-time criminal," warranted a below-Guidelines sentence of 204 months.
This timely appeal followed.
Love first argues that his sentence was substantively unreasonable, contending that an
analysis of the factors the district court was required to consider under 18 U.S.C. § 3553(a) when
sentencing him should have resulted in his being sentenced to no more than ten years of
We review claims of substantive unreasonableness in sentencing for abuse of discretion.
United States v. Vonner, 516 F.3d 382
, 389 (6th Cir. 2008). "A sentence may be substantively
unreasonable where the district court selects the sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider pertinent § 3553(a) factors or gives an unreasonable amount
of weight to any pertinent factor." United States v. Martinez, 588 F.3d 301
, 328 (6th Cir. 2009)
(citation, internal quotation marks, and alteration marks omitted). Sentences that fall within a
properly calculated Guidelines range are entitled to a rebuttable presumption of reasonableness.
[End Page 4]
United States v. Love
United States v. Harmon, 607 F.3d 233
, 240 (6th Cir. 2010). Because Love's sentence is below a
properly calculated Guidelines range, moreover, Love's task of persuading us that it is unreasonable
is "even more demanding" than if the sentence had been within the Guidelines range. See United
States v. Curry, 536 F.3d 571
, 573 (6th Cir. 2008).
Love specifically alleges that the 204-month sentence imposed upon him was greater than
necessary to accomplish the goals of 18 U.S.C. §3553(a). That section cabins a sentencing judge's
discretion to the extent that a criminal defendant's sentence must be "sufficient, but not greater than
necessary" to (1) reflect the seriousness of the offense, promote respect for the law, and provide just
punishment for the offense; (2) afford adequate deterrence to criminal conduct; (3) protect the public
from further crimes of the defendant; and (4) provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the most effective manner. 18
U.S.C. § 3553(a). In addition to the foregoing concerns, § 3553(a), in relevant part, also requires a
sentencing judge to take into consideration the nature and circumstances of the offense and the
defendant, the kinds of sentences available, the sentence recommended by the United States
Sentencing Guidelines, and the need to avoid unwarranted sentencing disparities among defendants
with similar records who have been found guilty of similar conduct. Ibid.
In brief, Love's substantive unreasonableness argument contends that he did not play a major
role in the drug distribution scheme; that his age and lack of criminal history make him an unlikely
candidate for recidivism; that he has been rehabilitated, as demonstrated by (1) various good works
in the community and lack of criminal activity during his time as an absconder and (2) self-
improvement during his current incarceration; and that his co-defendants at the "top of the food
[End Page 5]
United States v. Love
chain" received only 180 months of imprisonment, resulting in an unwarranted sentencing disparity
when compared to his 204-month sentence.
Love's arguments on appeal do not demonstrate an abuse of discretion by the trial court.
Rather than pointing to evidence that the court's selection of a seventeen-year sentence was arbitrary,
based on impermissible factors, made without consideration of pertinent § 3553(a) factors, or made
after giving an unreasonable amount of weight to any particular factor, Love largely re-argues on
appeal his own view of how these factors ought to be applied to him. Indeed, his argument on appeal
as to substantive unreasonableness is, with minor changes, a word-for-word reprise of the re-
sentencing memorandum he submitted to the district court.
Because these arguments are carbon copies of those made to the district court, they do not
address, much less overcome, the presumption that the district court's sentence based on its own
evaluation of these arguments was proper. Moreover, even were we to construe Love's brief as
alleging that the district court gave too little weight to his personal characteristics and other
mitigating factors, and too much weight to retribution and general deterrence, such an argument
"ultimately boils down to an assertion that the district court should have balanced the § 3553(a)
factors differently," and, as such, is "â€˜simply beyond the scope of our appellate review, which looks
to whether the sentence is reasonable, as opposed to whether in the first instance we would have
imposed the same sentence.'" United States v. Sexton, 512 F.3d 326
, 332 (6th Cir. 2008) (quoting
United States v. Ely, 468 F.3d 399
, 404 (6th Cir. 2006)).
Additionally, Love's sentence appears to reflect the trial judge's full evaluation of the §
3553(a) factors and the arguments Love presented. Though Love contends that he was a minor
[End Page 6]
United States v. Love
distributor, the judge found that his role included both carrying and distributing cocaine and
"facilitating" the conspiracy by introducing members to each other and procuring cars and other
needed items. The judge also took Love's age and lack of extensive criminal history into account,
noting that "he's kind of had episodic issues with crime. . . . at [some] points he appears to have
gone a period of time with really very, very little of any criminal contact . . . ." and concluding that
"having said this is a long-time criminal is not true. Not true." Having done so, the district court
"was free to reach its own conclusion about defendant's danger to the community based on the
circumstances of the offense and the district court's years of experience monitoring individuals on
parole and supervised release," and was similarly free to determine the relative importance of that
factor when weighed in the balance against the other relevant sentencing considerations. See United
States v. Janosko, 355 F. App'x 892, 897 (6th Cir. 2009).
As to Love's sentencing-disparity argument, we have explicitly held that the need to avoid
unwarranted sentencing disparities, as set forth in 18 U.S.C. § 3553(a)(6), "concerns national
disparities between defendants with similar criminal histories convicted of similar criminal
conductâ€"not disparities between co[-conspirators]." United States v. Conatser, 514 F.3d 508
(6th Cir. 2008). Moreover, the sentencing judge in this case found not only that Love had played an
important role in facilitating the conspiracy, but also that a two-level enhancement for obstruction
of justice seriously underrepresented the nature of the obstruction. Thus Love was in a materially
different circumstance than his co-conspirators at sentencing, a reality that the trial court took into
consideration when it considered the proportionality of Love's sentence. Comparisons between Love
and his co-conspirators were simply not apposite.
[End Page 7]
United States v. Love
Love next makes the argument that the district court violated his Sixth Amendment right to
trial by jury in sentencing him as if the jury had found him responsible for at least 50 kilograms of
cocaine, when in fact the jury returned a general verdict of guilty on the conspiracy charge without
having found any particular quantity of drugs attributable to Love specifically. Love makes this
argument in two versions, first claiming that the court's decision to hold him responsible for at least
50 kilograms of cocaine was a "structural error" in the same sense as treating the Sentencing
Guidelines as mandatory or violating a defendant's right to choice of counsel are structural errors,
and thus requires remand even in the absence of a showing of prejudice. See United States v.
Gonzalez-Lopez, 548 U.S. 140
, 141 (2006) (holding that violations of the right to counsel of choice
are not subject to harmless-error analysis); United States v. Barnett, 398 F.3d 516
, 527â€"28 (6th Cir.
2005) (presuming prejudice when Sentencing Guidelines treated as mandatory). He secondly claims
that, in the alternative, the judge's sentence was "simple error." In both varieties, Love grounds his
argument on the fact that the Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466
(2000) and United States v. Booker, 543 U.S. 220
(2005) generally require that any fact "necessary
to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty
or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."
Booker, 543 U.S. at 244. Because the jury in his case did not specify the amount of cocaine for
which he was responsible, Love argues, it was error under Apprendi and Booker to sentence him as
if he were responsible for anything other than the smallest amount of cocaine punishable under the
statute: less than 25 grams, which would correspond with a base offense level of 12 and (assuming
[End Page 8]
United States v. Love
his criminal history category and upward adjustment for obstruction of justice remained the same)
result in a Guidelines range of 18 to 24 months.
These arguments are identical in substance to those presented and rejected in Love's earlier
appeal. In our opinion of August 12, 2008, the panel summarized the issue then before it as follows:
Love contends that the Sixth Amendment, as interpreted in Apprendi v. New Jersey,
forbids sentencing courts from finding facts that increase a defendant's sentence for
a drug offense unless a jury has designated a drug quantity by special verdict. Love
infers from Apprendi that the jury's determination of guilt for an unspecified quantity
of cocaine permits sentencing for only the minimum amount punishable under the
Guidelinesâ€"less than twenty-five grams.
Love, 289 F. App'x at 891 (citation omitted). Our earlier decision unambiguously rejected this line
of argument, holding that it was refuted by the Supreme Court's decision in Harris v. United States,
536 U.S. 545
(2002). The Court in Harris, we noted, "held that juries need only determine the â€˜outer
limits' of a sentence, leaving the court free to make factual determinations that increase the sentence
within the jury-authorized range." Love, 289 F. App'x at 891 (quoting Harris, 536 U.S. at 567).
Because the 240-month sentence being reviewed at that time did not exceed the maximum statutory
penalty applicable for an indefinite amount of cocaine, we held, it did not run afoul of Apprendi. Id.
at 891â€"92; see also 21 U.S.C. § 841(b)(1)(C) ("In the case of a controlled substance in schedule I
or II . . . such person shall be sentenced to a term of imprisonment of not more than 20 years.").3
On re-sentencing, the district court found Love's maximum sentence under 21 U.S.C. §
841(b)(1)(C) to be thirty years, the statutory maximum for those persons who "commit such a
violation after a prior conviction for a felony drug offense has become final." Love argued below
that he had not actually been convicted in the prior case in question, which involved a 1993 plea of
guilty and subsequent deferred adjudication in the state of Texas. The district court found this to
have been a prior conviction, a decision that is not before us now but one that does not offend
Apprendi, which explicitly exempts prior convictions from the requirement that facts used to
[End Page 9]
United States v. Love
It follows that Love's current attempt to make this argument is barred by the law of the case
doctrine. "As most commonly defined, the doctrine of the law of the case posits that when a court
decides upon a rule of law, that decision should continue to govern the same issues in subsequent
stages in the same case." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800
, 815â€"16 (1988)
(alteration marks and citation omitted).
It is true that "a subsequent contrary view of the law by the controlling authority" in a
pending case is one of the limited circumstances in which disregarding the law of the case may be
justified. United States v. Moored, 38 F.3d 1419
, 1421 (6th Cir. 1994) (citation omitted). While
Love's appellate brief does gamely argue that Harris was "decisively overrule[d]" by the Supreme
Court's decision in Cunningham v. California, 549 U.S. 270
(2007), we note that Cunningham was
decided on January 22, 2007â€"more than five months before Love filed his opening brief in his
original appeal and more than eighteen months before our decision in that case was filed. Thus
Cunningham was not a subsequent view of the law at all.
Nor, moreover, was Cunningham's view of the law contrary to that we expressed in Love's
original appeal. The portion of Cunningham cited by Love indicates that the Supreme Court "has
repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater
potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt,
not merely by a preponderance of the evidence." Cunningham, 549 U.S. at 281 (emphasis added). increase a sentence beyond a prescribed statutory maximum be found by a jury beyond a reasonable
doubt. United States v. Craft, 495 F.3d 259
, 266 (6th Cir. 2007); see Apprendi, 530 U.S. at 490.
Whether the "outer limit" of Love's sentence was twenty years or thirty years was not dependent on
the judge's determination as to the quantity of cocaine for which Love was responsible.
[End Page 10]
United States v. Love
Thus the Apprendi line of cases, including Booker and Cunningham, continue to apply only in the
circumstances delineated by this court in Love's earlier appealâ€"that is, when a finding is made that
increases the defendant's maximum potential sentence. Because he was sentenced under the portion
of the code governing conspiracy to distribute an unspecified amount of cocaine, Love's maximum
potential sentence (including the enhancement for his prior felony conviction) was 360 months rather
than the potential life imprisonment to which he would have been exposed if the jury had specified
that it found him responsible for five or more kilograms of cocaine.4 See 21 U.S.C. § 841(b)(1)(A).
Hence the judge's decision to calculate a Guidelines range based on his own finding that Love had
been responsible for between 50 and 150 kilograms of cocaine did not change the maximum
sentence authorized by the jury, and the 204-month sentence did not violate Love's Sixth
Love's final argument is that the district court erred in determining an amount of cocaine
over 16 kilograms attributable to him, because any such amount was not within the scope of his
criminal agreement with his co-conspirators. Love further notes that our decision in United States
v. Campbell, 279 F.3d 392
(6th Cir. 2002), requires a sentencing court to find that conduct being
imputed to a conspiracy defendant have been within the scope of the defendant's agreement and
At re-sentencing, the government actually argued that Love's responsibility for more than
5 kilograms of cocaine and his prior felony conviction did subject him to a mandatory minimum of
20 years of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A). The judge rejected this argument,
explicitly finding that there was no mandatory minimum of 20 years. Thus it is clear that Love was sentenced under 21 U.S.C. § 841(b)(1)(C), which imposes no minimum sentence and carried the
maximum terms of imprisonment noted above.
[End Page 11]
United States v. Love
reasonably foreseeable to him. "[T]he district court's determination of the quantity of drugs
attributable to a defendant for sentencing purposes" is reviewed for clear error. United States v.
Jackson, 470 F.3d 299
, 310 (6th Cir. 2006). "[A] district court's decision concerning a defendant's
role in an offense" is also reviewed for clear error. United States v. Gates, 461 F.3d 703
, 709 (6th
At the outset, it should be noted that it is somewhat unclear whether Love is arguing that (1)
the district court committed a procedural error in failing to make a determination as to whether his
co-conspirators' actions were within the scope of the conspiracy agreement, or that (2) the district
court simply did not have enough support for concluding that those actions were within that scope.
His brief on appeal claims that the court violated his procedural due process rights "by not abiding
by the facts presented at trial in determining drug quantities," but also that the court "failed to find
the other co-defendant's (sic) conduct was within the scope of Love's criminal agreement."
In either case, he is incorrect. Procedurally, the district court referred specifically to Love's
role as a facilitator in order to indicate the extent to which Love was involved in the conspiracy.
Later, counsel for Love and the district judge had the following exchange:
MR. AVELLANO: . . . I think that the scope of the agreement relates to the amount
of drugs that were being given to Mr. Love because he was at basically the end of the
line. He was not much higher than just a user, which he was, and he wasâ€"
THE COURT: Excuse me. You're notâ€"I guess I didn't make myself clear. He was
an introducer. He was a connector. I found that. That's what I found. I was here.
I think I was downstairs, but I was in this courthouse. I made these findings.
[End Page 12]
United States v. Love
Thus the court made a particularized finding that the scope of Love's agreement included his
function as an "introducer" and "connector" who facilitated the distribution of cocaine by his co-conspirators.
Nor were these findings without substantive support. A district court may infer the scope
of a defendant's agreement "from the conduct of the defendant and others." Campbell, 279 F.3d at
400 (citation and internal quotation marks omitted). In addition to his own purchases of multiple
kilograms of cocaine at a time, Love helped recruit co-conspirator Troy Lei into the conspiracy by
"[t]elling [him] how much money [he] could make going to Florida to transport cocaine from there
to various places in Michigan." Later, Love was used as a conduit to pay Lei for driving cocaine
supplier Juan Carlos Sanchez around Battle Creek while Sanchez looked to purchase a house in
which to "stockpil[e] heavy loads of cocaine." Love was also aware of and facilitated the
involvement of Roger Nesbitt, Lei's stepfather, who stipulated that he himself had been responsible
for at least 150 kilograms of cocaine. Thus the court found that "while [Love] didn't have the
involvement he might have had otherwise, he certainly had the ability to introduce, connect up, and
make sure that cars and people were where they wanted to be, not in a managerial capacity, but as
a connector capacity."
In this case, therefore, it was not clear error for the district court to conclude that the acts of
Love's co-conspirators were within the scope of the conspiracy agreement as understood by Love,
at least to the extent necessary to hold him responsible for a minimum of 50 kilograms of cocaine.
Love did not merely purchase cocaine from other members of the conspiracy for distribution, but he
also recruited others and provided logistical support; his criminal responsibility therefore extended
well beyond the quantities of cocaine that he himself handled. Love makes no particularly well
[End Page 13]
United States v. Love
developed argument to the contrary other than to insist that the district court's finding that he was
a "connector" or "introducer" of others into the conspiracy "does not mean that this was Love's job
in the conspiracy." The questions of whether his co-conspirators' actions were within the scope of
the conspiracy and foreseeable to Love turn on the nature of his actual knowledge and participation,
however, and not on some hypothetical job description.
Mr. Love appears to have genuinely turned over a new leaf during his time on the run.
Unfortunately, his efforts at reformâ€"no matter how sincere or how successfulâ€"do not entitle him
to escape a sentence properly imposed upon him for his earlier misdeeds. The judgment of the
district court is AFFIRMED.
[End Page 14]