Escolar Documentos
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No. 08-7019
No. 08-7571
COUNSEL
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellants. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Asheville, North Carolina; Tanzania Cannon-Eckerle, Charlotte, North Carolina, for Appellants. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
In furtherance of its conclusion that "the 100-to-1 drug
quantity ratio [of cocaine powder to crack cocaine used in
sentencing] significantly undermines various congressional
objectives set forth in the Sentencing Reform Act and elsewhere," the United States Sentencing Commission adopted
Amendment 706 to the Sentencing Guidelines, effective
November 1, 2007. Amendment 706 amended U.S.S.G.
2D1.1, lowering by two levels the offense levels associated
with each quantity of crack cocaine, and, effective March 3,
2008, it was made retroactive.
Amendment 706 has now generated thousands of motions
to reduce sentences, filed under 18 U.S.C. 3582(c)(2)
(authorizing the modification of a sentence "based on a sen-
tencing range that has subsequently been lowered by the Sentencing Commission" (emphasis added)). The two appeals
here come to us from the district courts orders denying two
such motions, one filed by Carlous Gerrard Hood and the
other by Corey Allen Brooks. These defendants convictions
for crack cocaine trafficking required mandatory minimum
sentences of 240 months imprisonment under 21 U.S.C.
841(b)(1)(A), but in each case the district court reduced the
sentence under 18 U.S.C. 3553(e)Hoods to 100 months
imprisonment and Brooks to 108 months imprisonmentto
reflect the defendants substantial assistance to the government. Each defendant now, through his 3582(c)(2) motion,
requests a proportionate reduction of his sentence to reflect
the lowering of sentences for crack cocaine offenses provided
by Amendment 706.
We conclude that the defendants sentences in these
appeals were "based on" the statutorily mandated minimum
sentence, not "based on a sentencing range" lowered by
Amendment 706, and were reduced by the district court under
18 U.S.C. 3553(e) only for each defendants substantial
assistance to the government, not because of the application
of any "guideline range" lowered by Amendment 706.
Because Amendment 706 lowered only the crack cocaine
offense levels in 2D1.1 of the Sentencing Guidelines, it did
not have the effect of lowering the defendants applicable sentencing ranges. Accordingly, we affirm.
I
Carlous Gerrard Hood
Hood pleaded guilty, pursuant to a written plea agreement,
to one count of conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C.
841(a)(1) and 846. In the plea agreement, Hood stipulated
that he was responsible for more than 1.5 kilograms of crack
cocaine and for at least 300 but less than 400 grams of
sentence
under
21
U.S.C.
The district court denied Hoods 3582(c)(2) motion, ruling that the 240-month statutory minimum sentence barred
3582(c)(2) relief. The court explained:
Pursuant to USSG 5G1.1, the sentence imposed
may not be less than the statutorily required minimum sentence. In this case, the statutory mandatory
minimum sentence was deemed to be the guideline
sentence under 5G1.1(b). If Amendment 706
(Retroactive Crack Cocaine Amendment) had been
in effect at the time of the original sentencing, it
would not have been of benefit to defendant, because
the statutorily mandated minimum sentence would
have been the guideline sentence anyway. Because
defendants original sentence was based on the statutory minimum rather than the otherwise applicable
guideline sentence, notwithstanding departure under
USSG 5K1.1 and 18 U.S.C. 3553(e), Amendment 706 has no effect on the defendants guideline
sentence.
From the district courts order of June 13, 2008, denying
Hoods 3582(c) motion, Hood appealed.
Corey Allen Brooks
Brooks pleaded guilty, pursuant to a written plea agreement, to one count of conspiracy to possess with intent to distribute crack cocaine, in violation of 21 U.S.C. 841(a)(1)
and 846. In the plea agreement, Brooks stipulated that he was
responsible for in excess of 50 grams but less than 150 grams
of crack cocaine. The government had also filed earlier an
information pursuant to 21 U.S.C. 851, notifying Brooks
that it intended to rely on Brooks prior North Carolina state
motion, Brooks maintained that his original sentence was ultimately based on the crack cocaine offense level 29, with a
corresponding sentencing range of 108 to 135 months imprisonment, and that his 108-month sentence represented the low
end of that range. Thus, he argued, under Amendment 706,
his offense level should be lowered two levels to level 27,
with a corresponding sentencing range of 87 to 108 months
imprisonment, and that his amended sentence should be 87
months imprisonment, at the low end of the amended range.
The probation officer submitted a supplemental presentence
report that provided that under Amendment 706, Brooks
revised offense level was lowered from level 29 to level 27
and, with his criminal history category III, resulted in a
revised sentencing range of 87 to 108 months imprisonment.
The report concluded, however, that Amendment 706 had no
effect on Hoods sentence because, pursuant to U.S.S.G.
5G1.1(b), his Guidelines sentence remained 240 months
imprisonment, the statutory minimum sentence under 21
U.S.C. 841(b)(1)(A).
The district court denied Brooks 3582(c)(2) motion, ruling that the 240-month statutory minimum sentence barred
3582(c)(2) relief. The court explained:
Pursuant to USSG 5G1.1, the sentence imposed
may not be less than the statutorily required minimum sentence. If Amendment 706 (Retroactive
Crack Cocaine Amendment) had been in place at the
original sentencing, the guideline sentence would
have been the mandatory minimum. Therefore,
Amendment 706 has no effect on the defendants
sentence.
From the district courts order of July 29, 2008, denying his
3582(c) motion, Brooks appealed.
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II
We begin by examining the specific authority granted to
courts by Congress in 18 U.S.C. 3582(c)(2) to modify sentences. Section 3582(c)(2) authorizes a district court to modify a defendants term of imprisonment when the defendant is
"sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission." 18 U.S.C. 3582(c)(2) (emphasis added). That
subsection is part of a larger provision that denies district
courts generally any authority to modify a term of imprisonment "once it has been imposed." 18 U.S.C. 3582(c). Thus,
subsection (c)(2) provides a court exceptional authority to
reduce a sentence. It also provides that any such reduction of
a sentence must be "consistent with applicable policy statements issued by the Sentencing Commission." Id.
The applicable policy statement issued by the Sentencing
Commission, implementing 3852(c)(2), provides that a sentence reduction under 3582(c)(2) "is not authorized" if the
amendment to the Sentencing Guidelines "does not have the
effect of lowering the defendants applicable guideline
range." U.S.S.G. 1B1.10(a)(2)(B). The Sentencing Guidelines also provide specific instructions for a court when "determining whether, and to what extent, a reduction in the
defendants term of imprisonment . . . is warranted." U.S.S.G.
1B1.10(b)(1). They instruct that "the court shall determine
the amended guideline range that would have been applicable
to the defendant if the amendment[ ] . . . had been in effect
at the time the defendant was sentenced . . . substitut[ing] only
the amendment[ ] . . . for the corresponding guideline provision[ ] that [was] applied" and "leav[ing] all other guideline
application decisions unaffected." Id.
Amendment 706, which was made effective November 1,
2007, and retroactive effective March 3, 2008, amended
2D1.1 of the Sentencing Guidelines by reducing the offense
levels associated with crack cocaine quantities by two levels.
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ate reduction," consistent with the non-exclusive list of reasons for consideration by the judge, all related to the nature
and quality of a defendants substantial assistance.3 See
U.S.S.G. 5K1.1; United States v. Pearce, 191 F.3d 488, 492
(4th Cir. 1999) (holding that under 5K1.1, a sentencing
court may only consider the "nature, extent, and significance"
of the defendants assistance). In short, in reducing a sentence
under 18 U.S.C. 3553(e) and U.S.S.G. 5K1.1, the sentencing court does not apply a Guidelines sentencing range. See
United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.
2008) (per curiam) (holding that a crack cocaine defendant
was not eligible for a sentence reduction under 18 U.S.C.
3582(c)(2) in light of Amendment 706 where the defendant
was subject to a statutory mandatory minimum sentence and
the district court departed downward on the governments
motion under 18 U.S.C. 3553(e) and U.S.S.G. 5K1.1).
It is true that the district court in this case did, in considering the degree of departure, allude to a Sentencing Guidelines
offense level and the sentencing range corresponding to it,
rather than referring to a percentage or to some other number
to quantify its downward departure. But the reference to level
29 has no legal significance for the analysis under
3582(c)(2). The statute authorizing a departure from the
mandatory minimum did not provide a sentencing range, leav3
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ing that to the district courts discretion. Nor did the Sentencing Guidelines provide a sentencing range that was
applicable. The court was not, therefore, applying a Guidelines range such that any sentence imposed was "based on a
sentencing range," as required by 3582(c)(2).
Thus, Hoods 100-month sentence was not based on any
sentencing range authorized by U.S.S.G. 2D1.1, which
Amendment 706 amended, but rather on the mandated statutory minimum sentence required by 841(b)(1)(A) from
which the district court departed as authorized by 3553(e),
employing the factors identified in U.S.S.G. 5K1.1. Because
his sentence was not "based on a sentencing range . . . lowered by the Sentencing Commission," it was therefore not
subject to "modification" pursuant to a motion filed under
3582(c)(2).
Hood argues that United States v. Goines, 357 F.3d 469,
473-80 (4th Cir. 2004), dictates a different outcome. In
Goines, we considered whether a clarifying amendment to the
Sentencing Guidelines lowered a sentencing range for purposes of a motion under 3582(c)(2). In holding that "a
defendant may rely on a clarifying . . . amendment to support
a 3582(c)(2) motion, so long as the amendment has been
designated for retroactive application and would result in
application of a sentencing range lower than the range applied
at the original sentencing proceeding," id. at 480, we stated
that "sentencing range" is "the range actually applied by the
district court," as distinct from the range "prescribed by the
sentencing guidelines." Id. at 474, 475 (emphasis added).
Hood thus argues that Goines requires us to determine
whether Amendment 706 lowers not the range "prescribed by
the guidelines," but rather the range "applied by the district
court," which he contends was a post-departure sentencing
range that incorporated 2D1.1.
Hoods argument, however, is neither advanced nor supported by Goines. In Goines, the issue was whether a court,
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on" the sentencing range for crack cocaine offenses that was
lowered by Amendment 706. Like Hoods, his sentence was
based on a statutory minimum fixed by 21 U.S.C.
841(b)(1)(A), and it was reduced to an appropriate sentence
authorized under 3553(e) for his substantial assistance.
Brooks contends that the district court, in acting under
3553(e) to impose a sentence below the statutory minimum,
explicitly took into account the crack cocaine Guidelines
range that would have been applicable but for the statutory
minimum. The district court stated at sentencing, "[I]f the
court isnt bound by that statute [fixing the mandatory minimum], then the only thing left is the guideline range."
But in Brooks case, like in Hoods case, the district courts
comments, whether appropriate or not, were legally insignificant for purposes of the analysis under 3582(c)(2). In considering factors by which to quantify a departure under 18
U.S.C. 3553(e), the court was not applying a "guideline provision[ ]" corresponding to Amendment 706, U.S.S.G.
1B1.10(b)(1), such that the sentence it imposed was based
on a "sentencing range" lowered by Amendment 706, 18
U.S.C. 3582(c)(2).
Like Hoods sentence, Brooks sentence was based on a
statutory minimum fixed by 21 U.S.C. 841(b)(1)(A), from
which the district court departed downward as authorized by
18 U.S.C. 3553(e) for Brooks substantial assistance, not on
any "applicable guideline range" lowered by Amendment 706.
No guideline range was applicable, and Amendment 706 did
not purport to reduce any factors that the district court was
authorized to consider in quantifying a downward departure
under 3553(e).
III
Finally, both Hood and Brooks contend that this courts
practice of placing appeals from the denial of relief under
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