Thursday, February 10, 2011

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."

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