Friday, February 19, 2010

District Court Has Jurisdiction to Reduce Sentence Under 18 U.S.C. § 3582(c)(2), Even if Original Sentence Is Pending on Appeal

United States v. Martin, No. 07-30815 (5th Cir. Feb. 5, 2010) (Jolly, Dennis, Jordan, D.J.)

More action for all of you § 3582(c)(2) wonks out there:
This case presents a question of whether a district court has jurisdiction to modify a sentence under 18 U.S.C. § 3582(c)(2) while an appeal of the original sentence is pending before this court. We determine that in this case it does.

So how did the issue present itself? Martin was sentenced to 87 months for a crack offense (the low end of the guideline range). He appealed. While his appeal was pending, the Sentencing Commission retroactively reduced the crack guidelines. The district court sua sponte reduced Martin's sentence to 70 months (the low end of the reduced range), pursuant to § 3582(c)(2), and gave the parties 60 days to object. Martin asked for a hearing on the matter, and cited several reasons why he should receive a sentence lower than 70 months. The district court refused to conduct a hearing, "as Martin had a hearing at his original sentencing. Additionally, [the court] determined it could not depart from the guidelines when modifying a sentence under § 3582(c)(2), that he established no equal protection claim, and that United States v. Booker, 543 U.S. 220 (2005), did not apply." Martin appealed a second time, and here's what happened:

Martin argues that he is entitled to remand for full resentencing, because his first sentence is unreasonable in the light of the revised guidelines. He made no objection at the time of sentencing, so we review for plain error. United States v. Anderson, 559 F.3d 348, 358 (5th Cir.), cert. denied, 129 S. Ct. 2814 (2009). As the district court is to sentence under the guidelines in effect at the time of sentencing, 18 U.S.C. § 3553(a)(4)(A)(ii), we find no error, much less plain error.

Martin next argues that we should vacate his second sentence, because the district court lacked jurisdiction. We disagree. A district court has jurisdiction to modify a sentence during appeal if doing so does not impair the prisoner’s constitutional rights. United States v. Stafford, 29 F.3d 181, 184 (5th Cir. 1994). Martin argues that the court lacked jurisdiction, because a § 3582(c)(2) procedure, unlike a full resentencing, does not allow him to argue for a departure from the guidelines or to be present and allocute. United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009) (per curiam); United States v. Moree, 928 F.2d 654, 655-56 (5th Cir. 1991). His argument springs from the faulty premise that a retroactive guidelines change entitles a prisoner to a full resentencing. Retroactive guidelines changes entitle a prisoner only to move for sentence modification under § 3582(c)(2), not to a full resentencing. United States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990). As he is not entitled to resentencing, the district court deprived him of no constitutional rights by modifying his sentence under § 3582(c)(2) during his appeal. He brings no other challenge to his modified sentence, so the judgment of the district court is AFFIRMED.

Note that the issue of whether "[r]etroactive guidelines changes entitle a prisoner only to move for sentence modification under § 3582(c)(2), not to a full resentencing[,]" is currently before the Supreme Court. The panel here was bound by United States v. Doublin, of course.



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