3582(c)(2) Reduction Denial Vacated for Failure to Consider 3553(a) Factors

United States v. Larry, No. 08-30368 (5th Cir. Feb. 8, 2011) (DeMoss, Prado; King, dissenting)

Larry picked up a 280-month sentence for a crack offense.   In response to a Rule 35 motion from the Government, his sentence was later reduced to 154 months.  A second Rule 35 motion got him down to 138 months.  Then came the Sentencing Commission's decision in 2008 to make the reductions to the crack guidelines retroactive.  Interestingly, the district court considered a sua sponte motion to further reduce Larry's sentence under 18 U.S.C. § 3582(c)(2).  But before either the Government or Larry learned of this development—and hence without briefing or argument—the court denied the motion.  Why?  Because, in the court's view, "Larry 'ha[d] been given sufficient credit for cooperation' and . . . 'the previously imposed sentence is still sharply below the amended guideline range.'"  Evidently unimpressed with the district court's efficiency, Larry appealed.

Reviewing for abuse of discretion, the court of appeals sided with Larry.  In considering a motion for reduction of sentence under § 3582(c)(2), the court must do two things: 1) determine whether a reduction is authorized, and 2) if so, consider the § 3553(a) factors, along with any possible danger a sentence reduction would pose.  The disrict court here did step one; it determined (implicitly) that Larry was eligible for a reduction.  But it skipped step two:

There is no indication in the record that the district court considered the [§ 3553(a)] factors when it determined whether the modification was warranted. The district court did not state that it considered the factors or explain how the factors supported its finding that sentence modification was not warranted. Moreover, it did not consider argument concerning the factors, in part because the court did not give the parties an opportunity to make such arguments.

By failing to consider the required factors, the district court abused its discretion.
 
The Government nevertheless argued that the district court did not abuse its discretion because it considered the factors implicitly.  While the Fifth Circuit "has found that the district court implicitly considered the factors when the parties presented argument to the district court concerning the merits of the motion for modification[,]" it refused to do so here because the district court never afforded the parties an opportunity to make their pitches in the first place.  Nor was the fact that the district court had a report setting forth the reduced range, as well as Larry's disciplinary record in prison, enough to warrant an inference that the court considered the required factors.  This error wasn't harmless, so the Fives sent the case back to the district court with specific instructions to allow the parties to present their arguments and to respond to any new reports not already in the record.
 
Judge King dissented, pointing to the district court's findings that "Larry 'has been given sufficient credit for cooperation,' and that 'the previously imposed sentence is still sharply below the amended guideline range.'"  This showed, in her view, that "the district court considered the amended Guidelines range in the context of the particular circumstances of the case—considerations implicitly invoking the relevant § 3553(a) factors."  Also, Judge King said, Larry hadn't offered any argument supporting a further sentence reduction in his case: "Without argument from the defendant that further reduction is even warranted, I would not reverse the district court’s order and remand for further proceedings."

No Categorical Rule for Deciding Whether (c)(1)(C) Sentence Was "Based On" Retroactively Reduced Guidelines Range for § 3582(c)(2) Purposes

United States v. Williams, No. 09-30778 (5th Cir. June 15, 2010) (per curiam) (Jolly, Smith, Owen)

If that post title sounds familiar to you, it's because the Fifth Circuit addressed the same issue several weeks ago in United States v. Garcia. So why another published opinion so soon? Perhaps because Williams presents a slightly different factual scenario.

Recall that in Garcia, the defendant reached a (c)(1)(C) agreement that limited the court to a sentence within a range bounded by a stipulated minimum and the high end of whatever the Guidelines range worked out to be. Noting a wooly circuit split over whether a sentence resulting from a (c)(1)(C) plea was "based on" the Guidelines, for purposes of 18 U.S.C. § 3582(c)(2), the court ultimately concluded that "answering that question requires that we examine the nuances of both the plea agreement and the sentencing transcript in each particular case." In so doing, the court concluded that Garcia's sentence was based on the Guidelines range.

Change the facts a little, and we have Williams, and a different result. Instead of giving the court a range to work with, the (c)(1)(C) agreement here specified a particular sentence: 192 months. After once again canvassing the relevant authority from other circuits, and applying Garcia, the court spake:

In this case, we need not adopt a categorical rule regarding whether sentences pursuant to Rule 11(c)(1)(C) plea agreements are in all cases “based on” the Guidelines. A review of the plea agreement, sentencing record, and applicable guidelines demonstrates that Williams’s sentence was not “based on” the subsequently amended crack-offense guidelines. Williams stipulated to a sentence of 192 months, whereas the guidelines range for his crime would have been 360 months to life. Even under the newly amended Guidelines, his sentencing range would be 324 to 405 months. Thus, Williams’s sentence was significantly lower than the then-existing guidelines range and is still significantly lower than the post-amendment guidelines range. Furthermore, the plea agreement never stated that the stipulated sentence depended on, or was even connected to, the applicable sentencing range. Likewise, a review of the sentencing transcript does not suggest that the district court based its decision on a guideline calculation. While the guidelines range may have affected the plea negotiations, we have never held that such a tenuous connection is sufficient to establish that a defendant’s ultimate sentence was in fact “based on” the Guidelines, as that term is used in § 3582(c). We decline to do so today. Therefore, the district court did not err when it found that Williams’s sentence was not subject to modification under § 3582(c).

But what if it had erred?

Even if Williams’s sentence were deemed to be “based on” the Sentencing Guidelines, and thus eligible for reduction under § 3582(c), the district court did not abuse its discretion in denying the motion for a reduced sentence. The policy statement accompanying § 3582(c)(2) states that “[i]f the original term of imprisonment imposed was less than the term of imprisonment provided by the guidelines range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range . . . may be appropriate.” As we explained in United States v. Cooley, “[e]ven though the district court may grant a comparable sentence reduction, however, it is not compelled to do so.” The district court in the present case concluded that it did not have authority to reduce Williams’s sentence. However, the district court ruled in the alternative, as well, stating that even if it had authority to reduce the sentence, it would not do so because the “sentence of months is already significantly below his ‘modified’ range of 324–405 months, and there is no adequate reason why his sentence should be lowered further.” We agree. Williams identifies no convincing reasons why he is deserving of a sentence reduction. Therefore, the district court did not abuse its discretion in denying Williams’s motion for a reduced sentence.

An issue the opinion does not address: what if the district court had authority to do a full Booker resentencing, and did not realize it? Under existing Fifth Circuit law, the court did not have that authority. But don't forget that the Supreme Court has taken up the question.

Sentence Resulting from (c)(1)(C) Agreement May or May Not be "Based On" a Retroactively Reduced Guidelines Range for § 3582(c)(2) Purposes

United States v. Garcia, No. 08-50458 (5th Cir. May 7, 2010) (per curiam) (Jones, Higginbotham, Elrod)

Garcia was charged with seven counts of distributing lots of cocaine and crack. He entered a (c)(1)(C) agreements providing that 1) he would plead guilty to two counts in exchange for dismissal of the remaining counts, and 2) the sentence would be at least 240 months.

The plea agreement also contemplated the sentencing guidelines, albeit with the 240 month minimum overlay. Paragraph 8 provided: “The parties agree to request the Court to consult with and take into account the United States Sentencing Guidelines and accompanying policy statements (‘the U.S.S.G.’) for the calculation of the Defendant’s sentence pursuant to 18 U.S.C. § 3553.” Paragraphs 10 and 15 discussed the possibility that the government would move for a downward departure from the sentencing guidelines. The government in paragraph 17, citing to U.S.S.G. § 3E1.1(b), promised to move for an additional point deduction from Garcia’s offense level as a “reward” for his timely plea. Finally, paragraph 19 declared that, besides the 240 month minimum, “[a]ll . . . sentencing issues . . . will be determined by the Court after the completion of a Presentence Investigation Report.”

The Guidelines range worked out to 210 to 262 months, which became 240 to 262 months under the terms of the plea agreement. "In short," the court puts it, "range was bounded on the bottom by the plea agreement and on the top by the guidelines." Garcia got 262 months.

Enter the 2007 retroactive reduction of the crack guidelines, which lowered Garcia's range to 168 to 210 months. "[I]n a continuing effort to honor the plea bargain, the district court determined the actual amended range to be 240 to 240 months, the agreed-to minimum sentenced. The district court granted Garcia’s motion and reduced his sentence to 240 months. Garcia appealed, urging that the district court could have gone lower."

A threshold issue: did the district court have jurisdiction to lower the sentence under § 3582(c)(2)? More specifically, is a sentence resulting from a (c)(1)(C) agreement "based on a sentencing range that has been subsequently lowered by the Sentencing Commission"? As you might imagine, that question has produced a split. Setser canvasses the authority from other circuits, which involves a bewildering array of slight factual differences.

Ultimately, none of these circuits dealt with a stipulated minimum sentence, so Garcia’s case is the wrong vehicle with which to enter this demolition derby. Here, we have no reason to pass on a plea with a specific sentence, or a maximum, or a range bounded on both ends by the guidelines. However, the caselaw—rife with inter- and intra-circuit disagreement—does teach that wooden rules will not do. The jurisdictional question is whether the sentence was “based on” the subsequently amended crack-offense guidelines, and answering that question requires that we examine the nuances of both the plea agreement and the sentencing transcript in each particular case[, following a path charted by the Seventh and Ninth Circuits].

Doing so, we conclude the district court sentenced Garcia based on the sentencing guidelines – just as the plea agreement provided. The parties stipulated to a minimum sentencing range irrespective of the guidelines. But the agreement allowed that the maximum point on Garcia’s range could derive from the guidelines if the high end of the guidelines range exceeded 240 months. It did, and the district court sentenced Garcia to 262 months based on its guidelines calculation. The able district judge expressly said as much: “I adopt . . . the application of the U.S. Sentencing Guidelines . . . .” Garcia qualified to move for a reduction.

Okay, so did the district court abuse its discretion by only reducing Garcia's sentence to 240 months? No:

Garcia’s agreement stipulated to a minimum sentence of 240 months, unmoored from any guidelines calculation. When the sentencing guidelines for crack offenses changed, bringing down the high end of Garcia’s range, his negotiated minimum stayed put. By modifying the sentence to 240 months, the district court gave Garcia the biggest reduction for which he was eligible.

Note that the court's holding renders irrelevant the Fifth Circuit's position that "[a] § 3582(c)(2) proceeding is not a full resentencing, so Booker and its bifurcated reasonableness review do not apply[,]" a proposition with which the Supreme Court may or may not agree.

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.

SCOTUS To Decide Whether Court May Impose Sentence Below Revised Range in § 3582(c)(2) Resentencings

Speaking of sentence reductions pursuant to 18 U.S.C. § 3582(c)(2) based on the retroactive amendments to the crack guidelines, the Supreme Court in December granted cert on questions that have divided the circuits in this area. Dillon v. United States, No. 09-6338, presents the questions:

I. Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582.

II. Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence based on an admittedly incorrectly calculated guideline range.

Stated colloquially, the first question is whether § 3582(c)(2) allows full "Booker" resentencings, complete with the ability to depart or vary below the reduced Guidelines range. As you know, the Fifth Circuit has held that the crack amendments bar any reduction below the revised Guidelines range.

Defendant Who Got 5K1.1 Departure Below Statutory Minimum Not Eligible for 3582(c)(2) Reduction, Because Sentence Was Based on Statute, Not Guidelines

United States v. Carter, No. 08-20235 (5th Cir. Jan. 28, 2010) (per curiam) (Jones, Smith, Elrod)

The short answer (because the long one requires close examination of statutory and guideline language): "[W]e join the Fourth, Eighth, and Eleventh Circuits and hold that when a defendant is subject to a statutory minimum sentence above the upper end of his guideline range, even if the district court departs downwardly from that minimum under a statutory exception, 18 U.S.C. § 3582(c)(2) provides no authority to the district court to later modify the sentence based on amendments to the guideline range." If you want to get deep in the weeds of this issue, read on.

Our facts: In 2005, Carter was convicted of a crack offense carrying a statutory mandatory minimum sentence of 10 years' imprisonment. That was higher than the Guideline range of 87 to 108 months, so the Guideline sentence was 120 months. The Government moved for a §5K1.1 substantial assistance departure. The court granted it, and sentenced Carter to 36 months.

November 1, 2007 rolls around, along with a retroactive reduction of the crack guidelines. Carter filed a motion to reduce his sentence, pursuant to 18 U.S.C. § 3582(c)(2).

He argued that his 36-month sentence represented a 59 percent reduction from the 87-month low end of the Presentence Report’s guideline calculation, that a correct guideline range in light of the crack cocaine amendments would be 70 to 87 months, and therefore that the district court should reduce this portion of his sentence to 59 percent below 70 months. This would result in a sentence of 29 months, rather than 36, on the possession count.

The district court denied Carter's motion, finding that he wasn't eligible for a reduction under § 3582(c)(2) because his original sentence was based on the statutory mandatory minimum, not the subsequently-amended crack guidelines.

The court of appeals agreed, relying on the reasoning of a Fourth Circuit decision involving similar facts.

The phrase “based on a sentencing range” [in § 3582(c)(2)] straightforwardly aligns with the familiar sentencing practice of initially calculating a base range and then considering grounds for departing from it. In contrast to that typical situation, when an applicable statutory minimum sentence is greater than the high end of the guideline range, that minimum—not the otherwise applicable guideline range—is the starting point for sentencing. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). Indeed, the district court lacks authority to impose a sentence below the statutory minimum absent a statutory exception. . . . There is no dispute that Carter was subject to a statutory minimum sentence greater than the high end of his guideline calculation, whether calculated with or without the crack cocaine amendments. In this circumstance, the sentence was “based on” the statutory minimum, not the guideline range.

Carter countered by pointing to the language of 18 U.S.C. § 3553(e), which is the statutory authorization for substantial assistance departures. It directs a court to impose such a sentence "in accordance with the guidelines and policy statements issued by the Sentencing Commision." That language, Carter argued, "refer[s] to the otherwise applicable guideline range[,]" meaning that "the statutory minimum sentence no longer applie[s]." The court disagreed:

Nothing in § 3553(e) indicates that a statutory minimum sentence gives way to an otherwise applicable guideline range when a district court reduces the sentence based on the defendant’s substantial assistance to the government. Rather, § 3553(e)describes the familiar procedure of a downward departure from a baseline sentence. The Sentencing Commission has indicated that the applicable policy statement for § 3553(e) is U.S.S.G. § 5K1.1, which is the general provision governing downward departures from the guidelines. . . . Section 5K1.1 provides that “[u]pon motion of the
government stating that the defendant has provided substantial assistance . . . the court may depart from the guidelines” (emphasis added). Accordingly, the Commission implicitly considers a statutory minimum sentence to be analogous to a low-end guideline from which the court may depart. That is the interpretation we give to § 3553(e) as well. . . . Furthermore, inasmuch as the statutory minimum remains the baseline sentence from which the court may downwardly depart, we do not agree with Carter that the phrase “in accordance with the guidelines and policy statements issued by the Sentencing Commission” refers to ordinary guideline ranges. Instead, we interpret it to refer to such guidelines and policy statements as the Commission may create specifically to implement § 3553(e). As noted in Hood, 556 F.3d at 235, the applicable policy statement is the downward departure provision of U.S.S.G. § 5K1.1, which states principles for determining whether and how far to downwardly depart; the sentencing commission has not created any further “sentencing ranges” for such downward departures.

Carter had one more arrow in his quiver:

Whereas § 3582(c)(2) allows modification only of sentences “based on” amended sentencing ranges, Carter notes that under § 1B1.10(a)(1), a reduction may be appropriate if “the guideline range applicable to [the] defendant has subsequently been lowered as a result of [certain amendments].” (emphasis added) . . . . Carter argues that the 87 to 108 month range is “the guideline range applicable” in his case, even though a statutory minimum guideline sentence superseded that range.

The court disagreed, "conclud[ing] that the term 'guideline range applicable' in § 1B1.10 includes a statutory minimum sentence when such a minimum applies." Consequently, "a subsequent amendment to a different provision (the unutilized guideline range calculation) does not provide grounds for a sentence reduction." The court also pointed to §1B1.10's Application Note, which says that a defendant is not eligible for a sentenced reduction if the change in the guidelines "does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment)."

Reduced Crack Guidelines Do Not Apply to Defendants Sentenced as Career Offenders

United States v. Anderson, No. 08-41314 (5th Cir. Dec. 21, 2009) (per curiam) (Higginbotham, Clement, Southwick)

Are defendants who were convicted of crack offenses and sentenced as career offenders eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. §1B1.10 in the wake of the Sentencing Commission's lowering of the crack guidelines?

No, says Anderson. Such a defendant was sentenced under the career offender guideline, not the crack guidelines, and therefore "'was not sentenced based on a sentencing range that was subsequently lowered by the Sentencing Commission.'"

The crack cocaine guideline amendments do not apply to prisoners sentenced as career offenders. We note that – although this court has never published a binding decision on the issue – this year we have uniformly rejected arguments identical to Anderson’s in at least 10 persuasive unpublished decisions. The claim has no merit in either law or logic.

Incidentally, to the extent that Booker raised any question as to the standard of review applicable to a district court's decision to reduce a sentence, the opinion appears to say that it's the same as it was pre-Booker: abuse of discretion.

District Court May Not Impose Sentence Below Revised Guidleines Range In 3582(c)(2) Resentencings

United States v. Doublin, No. 08-30775 (5th Cir. June 22, 2009) (per curiam) (Barksdale, Dennis, Elrod)

A couple of years ago the Sentencing Commission revised the drug guidelines to reduce, but not eliminate, the disparity between crack and powder cocaine sentences. The Commission also made the change retroactive, allowing defendants whose Guidelines ranges would have been lower under the revised guidelines to be resentenced under those new guidelines.

Of course, this all happened after Booker, leading to the question whether these "3582(c)(2)" resentencings were to be full "Booker resentencings"—in which case the district court could impose a sentence below the newly-lowered range—or whether the low end of the new range was a mandatory floor. As you might imagine, the circuits divided over this question—a complicated one involving the interaction of a statute, a Guidelines policy statement, and the Supreme Court's judicial revision of the Guidelines scheme in Booker. In the meantime, the Sentencing Commission amended policy statement §1B1.10 in 2008 to prohibit a reduction below the revised Guidelines range.

Doublin finds the Fifth Circuit joining the eight others that have held the 2008 amendment bars any reduction below the revised Guidelines range. The Ninth Circuit is the only one to have held otherwise, and it weighed in before the 2008 amendment (although the amendment would not have had any effect on the Ninth Circuit's analysis, which reasoned that no guidelines are mandatory after Booker). So why does Doublin pick the side it does?

Booker mandates the guidelines are advisory in full sentencings (and, hence, in full resentencings); but, it is undisputed that a reduction under 18 U.S.C. § 3582 does not constitute a full resentencing. Guideline § 1B1.10(a)(3) provides that “proceedings under 18 U.S.C. § 3582(c)(2) . . . do not constitute a full resentencing of the defendant”. As the Tenth Circuit noted in Rhodes, “there are clear and significant differences between original sentencing proceedings and sentence modification proceedings”. These differences explain why Booker does not affect Guideline § 1B1.10.

As an initial matter, the concerns at issue in Booker do not apply in an 18 U.S.C. § 3582(c)(2) proceeding. Quoting Apprendi v. New Jersey, Booker noted that any “fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”. Section 3582(c)(2) proceedings do not, of course, involve sentence increases. “[T]he limits § 3582(c)(2) and U.S.S.G. § 1B1.10 impose on the extent of reductions are, at most, the equivalent of mandatory minimum sentences, which the Sixth Amendment permits within an otherwise-authorized sentencing range”.

Furthermore, reductions under 18 U.S.C. § 3582(c)(2) are not mandatory; this section merely gives the district court discretion to reduce a sentence under limited circumstances. By referencing the guidelines, the Sentencing Commission has not reimposed a mandatory guidelines regime; rather, the guidelines serve merely as a limit on the extent to which a sentence may be reduced subsequent to its having been imposed previously. (Of course, in the absence of 18 U.S.C. § 3582(c)(2), a sentence based on a subsequentlyamended guideline could not be reduced to any extent.)

As the Eighth Circuit noted in Starks, “[i]n § 3582(c), Congress sought to limit the authority of a district court to modify a term of imprisonment”, by requiring any reduction to be consistent with policy statements issued by the Sentencing Commission. Accordingly, “[a]lthough the guidelines must be treated as advisory in an original sentencing proceeding, neither the Sixth Amendment nor Booker prevents Congress from incorporating a guideline provision as a means of defining and limiting a district court’s authority to reduce a sentence under § 3582(c)”.

(some citation clutter omitted). Shorter, glib version: the Guidelines are advisory, except when they're not.

So, will the Supreme Court grant cert to resolve the circuit split on this question? I don't see why not. Every one of the geographic circuits save one (D.C.) have now weighed in, the Ninth Circuit is unlikely to change its mind, and the question affects a large number of prisoners. Seems primed for cert, whether it be Doublin or some other case.