Opinion
CR-1-98-108.
January 28, 2011
ORDER
This matter is before the Court upon defendant's Motions to Reduce Sentence Pursuant to 18 U.S.C. Section 3582(c)(2) (doc. nos. 143 and 148), Motion to Withdraw (doc. no. 146), the Response by the United States (doc. no. 149), the Post-Sentencing Addendum submitted by the Probation Officer, Defendant's Objections to Post-Sentencing Addendum to the Presentence Report (doc. no. 156), the United States' Response thereto (doc. no. 157), a Notice of Supplemental Authority (doc. no. 159) and Response thereto (doc. no. 161), and Sentencing Memorandum (doc. no. 164). A Hearing was held on October 6, 2009. Pursuant to the record established during that Hearing, the defendant filed a Sentencing Memorandum (doc. no. 169) and the government filed a Response thereto (doc. no. 170)
The United States Sentencing Commission authorized the retroactive application of Guideline Amendment 706 to all defendants who met certain eligibility criteria. Counsel for the government, representatives of the United States Probation Office and counsel for defendant disagreed as to Mr. Alsop's eligibility for the retroactive application of Guideline Amendment 706 to his case.
I. Procedural and factual background
On October 21, 1998, defendant was charged in a four-count Indictment. In Count One, he was charged with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base. In Counts Two and Three, he was charged with distribution of cocaine base in excess of fifty grams. Count Four charged distribution of cocaine base in excess of 5 grams.
The government filed a sentencing enhancement pursuant to 21 U.S.C. § 851 (doc. no. 47), the effect of which was to raise the mandatory minimum to twenty years or 240 months. An eight-day trial resulted in verdicts of guilty on all counts on March 18, 1999 (doc. no. 71). Alsop's convictions exposed him to a statutory sentencing range of twenty years to life.
The Court sentenced the defendant on August 3, 1999 (doc. no. 90). The Court addressed the objections to the presentence report. The Court recognized that the defendant asserted that the appropriate range was 188 to 235 months, but adopted the sentencing range of 360 months to life recommended in the presentence report finding it to be appropriate. The Court found the defendant's base offense level was 36 based upon the distribution of at least 608.50 grams of crack cocaine. The Court adopted the recommendations that he receive a 2-level enhancement for obstruction of justice and a 2-level enhancement for role in the offense. Although his criminal history points placed him in a criminal history category of III, the Court found that the defendant qualified as a career criminal. The Court adopted the recommendation contained in the presentence report that the offense level remain at 40, but that the criminal history category be increased to a VI pursuant to U.S.S.G. § 4B1.1.
The Court sentenced the defendant to 360 months on each of Counts One, Two, Three, and Four, to run concurrently, to be followed by ten years supervised release.
A Notice of Appeal was filed on the same day (doc. no. 91). On May 7, 2001, the United States Court of Appeals for the Sixth Circuit's mandate was filed affirming the conviction (doc. no. 118). See United States v. Christopher Alsop, No. 99-3983 (6th April 13, 2001). In a letter dated August 6, 2001, defendant sought certification to the United States Supreme Court (doc. no. 119), which was denied on October 17, 2001 (doc. no. 120). Defendant filed a Motion pursuant to § 2255 on October 22, 2001 (doc. no. 121) which was denied on July 30, 2004 (doc. no. 133). Defendant appealed this ruling on August 26, 2004 (doc. no. 134). A final judgment was entered denying the Motion on June 15, 2005 (doc. no. 138). After the defendant's first motion seeking a reduction pursuant to the new crack reduction amendment was filed on May 15, 2008 (doc. no. 143), the Court referred the matter to the United States Probation Department for analysis and recommendation. Although defendant filed a Motion to Withdraw Motion on June 6, 2008 (doc. no. 146), defendant filed a Motion asking permission to file a Pro Se Supplemental Brief to modify sentence on March 5, 2009 (doc. no. 148). The Court appointed an attorney to assist him (doc. no. 153).
In its Post-sentencing Addendum, the Probation Officer recommended that defendant is not eligible for application of the new cocaine base guideline because his guideline imprisonment range would remain the same even if he were to receive a reduction of two levels.
At the October 6, 2009 Hearing, Mr. Alsop appeared by video hook-up with a translator to assist him because he is hearing impaired. Various family members testified on his behalf. The record established during the Hearing disclosed the important function he played in improving the lives of his family, even from prison. It also illustrated the maturity and insight he has gained. For the first time in this case, he accepted responsibility for his actions and began the process of moving forward.
In his pro se Motion, defendant argues that he should receive a two-level reduction under the newly enacted Amendment 706. Defendant argues the Court has the authority to reduce his sentence because his sentence was based on a sentencing range that has subsequently been lowered by the sentencing Commission pursuant to § 994(o). He argues that all sentences involving crack offenses were "based on" the crack guideline because those ranges represented the starting point of the guideline analysis.
Defendant also contends that United States v. Booker, 543 U.S. 220 (2005) allows the Court to reduce his offense level below that called for by the amendment, to recalculate his criminal history category, and reduce his fine.
Mr. Alsop urges the Court to apply the standards and factors in 18 U.S.C. § 3553(a) and Kimbrough v. United States, 552 U.S. 85 (2007) when modifying his sentence. He cites passages from Kimbrough in which the Supreme Court recognized the fact that the United States Sentencing Commission had sought on several occasions to achieve a reduction in the crack/powder ratio, issuing reports in 1997 and 2002 recommending changes. He stresses the authority and discretion given to district court judges. Defendant argues that § 1B1.10 is advisory pursuant to Kimbrough. Although § 3582(c) states that the reduction must be consistent with the policy statements issued by the Sentencing Commission, he argues the policy statements in § 1B1.10 contradict Supreme Court decisions interpreting the Sentencing Reform Act in light of the Constitution. United States v. Hicks, 472 F.3d 1167, 1172-73 (9th Cir. 2007) and United States v. Ragland, 568 F.Supp.2d 19, 24 (D.D.C. 2008). Defendant argues that treating the amended §§ 1B1.10 and 2D1.1 as setting the mandatory lower limits of this Court's re-sentencing discretion violates both Booker and Kimbrough and that sentencing courts may deviate for policy reasons alone when the guidelines disserve the goals of sentencing. Spears v. United States, 555 U.S.261 (2009). The defendant also argues that the Court has the authority to vary downward because the result of the lowering of the range is that the original sentence is no longer a "final judgment" and the post-Booker regime applies. Defendant urges this Court to adopt Kimbrough's suggested ratio of something between 25-to-1 and 80-to-1.
Finally, in his Supplemental authority, defendant urges the Court to apply the language in United States v. Grant, 567 F.3d 776 (6th Cir. 2009). The Grant court addressed the question of what factors a district court may consider when deciding a motion to reduce a sentence pursuant to Federal Rule of Criminal Procedure 35(b). It held that a district court is permitted to consider other factors normally required for a just sentence under § 3553(a).
The government argues that the retroactive amendments to the crack cocaine guidelines are irrelevant to the defendant because he was sentenced as a career offender. Citing to United States v. Young, 247 F.3d 1247 (D. C. Cir. 2001), the government argues that a reduction is possible only when the Guideline provision relied upon at sentencing has been amended and specifically made retroactive by the Sentencing Commission. The government also argues that the policy statement at U.S.S.G. § 1B1.10 specifically excludes him because his range is not changed. Specifically, he faced a range of 360 months to life prior to any reduction and, were the Court to allow a 2-level reduction, his range would remain 360 to life.
II. Analysis
Essentially, all of defendant's arguments for a reduction of his current sentence depend on whether Booker applies to the resentencing determination. The parties' arguments are based on the cases available to them and status of the law at the time. Aware that the United States Supreme Court had granted certification on the issue of the applicability of Booker to § 3582(c)(2) proceedings, the Court awaited the instruction of the Supreme Court in United States v. Dillon, ___ U.S. ___, 130 220 S.Ct. 2683 (2010).
A. Statutory Framework
A district court may modify a defendant's sentence only as provided by statute. United States v. Washington, 584 F.3d 693, 695 (6th Cir. 2009). As a general rule, a district court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). Congress has provided an exception "in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o)." 18 U.S.C. § 3582(c)(2).
In 28 U.S.C. § 994(o), Congress mandated that the Sentencing Commission "periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section." In 28 U.S.C. § 994(u), Congress specified that "[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment may be reduced."
Title 18 U.S.C. § 3582 provides:
Upon motion of the defendant . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
In those circumstances, § 3582(c)(2) authorizes a court to reduce the term of imprisonment "if such reduction is consistent with" applicable Commission policy statements.
The applicable policy statement, U.S.S.G. § 1B1.10, amended March 3, 2008, provides in relevant part:
(a) Authority. —
(1) In General. — In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C. § 3582(c)(2), any such reduction in the defendant's term of imprisonment shall be consistent with this policy statement.
(2) Exclusions. — A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if —
(A) none of the amendments listed in subsection (c) is applicable to the defendant; or
(B) an amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range.
(3) Limitation. — Consistent with subsection (b), proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.
U.S.S.G. § 1B1.10(b)(2)(A) instructs the court that it shall not reduce the defendant's term of imprisonment to a term that is less than the minimum of the amended guideline range and (b)(2)(B) instructs courts not to reduce a term of imprisonment below the minimum of an amended sentencing range except to the extent the original term of imprisonment was below the range then applicable. See United States Sentencing Commission, Guidelines Manual § 1B1.10(b)(2) (Nov. 2010) (USSG).
U.S.S.G. § 1B1.10 describes the appropriate method of calculating the amended guideline range:
[T]he court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.
Subsection (c) of the policy statement lists the guideline amendments to be given retroactive effect. U.S.S.G. § 1B1.10(c).
Defendant argues that this Court need not adhere to the policy statement because the Supreme Court in United States v. Booker, 543 U.S. 220 (2005), rendered the sentencing guidelines merely advisory. Defendant asks this Court to reduce his sentence further, to time served, despite the policy statement's prohibition on sentencing below the amended guideline range. See U.S.S.G. § 1 B1.10(b)(2)(A). Defendant argues that Section 3582(c)'s mandate that any reduction in sentence be consistent with policy statements only refers to the Sentencing Commission's authority to determine which guideline amendments have retroactive effect and "not to imposing other limits which infringe on a sentencing court's traditional discretion."
In Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683 (2010), the United States Supreme Court addressed these arguments in a case similar to the one under consideration by this Court. Percy Dillon, the defendant, had been convicted of crack and powder cocaine offenses and was sentenced at a level 38. After the amendment, he moved for sentence reduction under § 3582(c)(2). In addition to the 2-level reduction authorized by the amendment, Dillon sought a variance below the amended guideline range contending that Booker authorized the exercise of such discretion consistent with the sentencing factors found in § 3553(a).
The Dillon court held that Booker's holdings do not apply to § 3582(c)(2) proceedings and do not require treating § 1B1.10(b) as advisory. Finding that Section § 3582(c)(2) authorizes only a limited adjustment to an otherwise final sentence, the Court found the argument that Booker's remedial opinion nonetheless requires the Guidelines to be treated as advisory in such proceedings is unpersuasive given that proceedings under § 3582(c)(2) are readily distinguishable from other sentencing proceedings. The Court also rejected Dillon's argument that the District Court should have corrected other mistakes in his original sentence, namely, a Booker error resulting from the initial sentencing court's treatment of the Guidelines as mandatory and an alleged error in the calculation of his criminal-history category.
The Supreme Court explained that the Sentencing Commission sought to alleviate the disparity produced by the 100-to-1 ratio selected by Congress in setting mandatory minimum sentences in the Anti-Drug Abuse Act of 1986, 100 Stat. 3207. After several failed attempts at reform, see Kimbrough, 552 U.S. at 99, the Commission in 2007 amended the Guidelines to reduce by two levels the base offense level associated with the quantity of crack cocaine. See USSG Supp.App. C, Amdt. 706 (effective Nov. 1, 2007). In 2008, the Commission made that amendment retroactive. See id., Amdt. 713 (effective Mar. 3, 2008). Dillon, 130 S.Ct. at 2688. Section 3582(c)(2) "represents a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines." Id. at 2692.
The Supreme Court stressed that the power of the Court to reduce, the process for doing so, and the amount of the reduction depend entirely on the Commissions' statements as adopted by Congress. Addressing the argument that there is no practical or functional difference between a resentencing pursuant to § 3582(c)(2) and any other resentencing, the Dillon court stated, id. at 2690-91:
By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the "modif[ication of] a term of imprisonment" by giving courts the power to "reduce" an otherwise final sentence in circumstances specified by the Commission. Compare 28 U.S.C. § 994(a)(2)(C) (referring to § 3582(c)(2) as a "sentence modification provisio[n]"), with 18 U.S.C. § 3742(f) (authorizing courts of appeals to remand "for further sentencing" upon a finding of error), and § 3742(g) (establishing the terms of "sentencing upon remand" and describing the proceeding as a "resentenc[ing]" (capitalization omitted)). It is also notable that the provision applies only to a limited class of prisoners-namely, those whose sentence was based on a sentencing range subsequently lowered by the Commission. Section 3582(c)(2)'s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding
The Supreme Court explained that the statute establishes a two-step inquiry. A court must first determine that a reduction is consistent with § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a). Id. at 2691. It stated:
Following this two-step approach, a district court proceeding under § 3582(c)(2) does not impose a new sentence in the usual sense. At step one, § 3582(c)(2) requires the court to follow the Commission's instructions in § 1B1.10 to determine the prisoner's eligibility for a sentence modification and the extent of the reduction authorized. Specifically, § 1B1.10(b)(1) requires the court to begin by "determin[ing] the amended guideline range that would have been applicable to the defendant" had the relevant amendment been in effect at the time of the initial sentencing. "In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected." Id.
Noting that the statute only authorizes the Court to impose a term "comparably" below the amended range, the court continued:
At step two of the inquiry, § 3582(c)(2) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case. Because reference to § 3553(a) is appropriate only at the second step of this circumscribed inquiry, it cannot serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.
This understanding of § 3582(c)(2) as a narrow exception to the rule of finality finds further support outside the statute. Federal Rule of Criminal Procedure 43 requires that a defendant be present at "sentencing," see Rule 43(a)(3), but it excludes from that requirement proceedings that "involv[e] the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c)," Rule 43(b)(4). Like § 3582(c)(2), Rule 35 delineates a limited set of circumstances in which a sentence may be corrected or reduced. Specifically, it authorizes a court to "correct a sentence that resulted from arithmetical, technical, or other clear error" within 14 days after sentencing, Rule 35(a), and it authorizes a reduction for substantial assistance on the Government's motion, Rule 35(b). Rule 43 therefore sets the proceedings authorized by § 3582(c)(2) and Rule 35 apart from other sentencing proceedings. 130 S.Ct. at 2691-92.
Given the limited scope and purpose of § 3582(c)(2), the Supreme Court concluded that proceedings under that section do not implicate the interests identified in Booker. Id at 2692. The Court noted that it held in Booker that treating the Guidelines as mandatory in circumstances where a judge could find facts only by a preponderance of the evidence, thus increasing the range, violated the Sixth Amendment right of criminal defendants to be tried by a jury and to have every element of an offense proved by the Government beyond a reasonable doubt. 130 S.Ct. 2687-88. In contrast, "the sentence-modification proceedings authorized by § 3582(c)(2) are not constitutionally compelled." Id. at 2692. "Because § 3582(c)(2) proceedings give judges no more than this circumscribed discretion, "[t]here is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury's domain as a bulwark at trial between the State and the accused." Id. ( quoting Oregon v. Ice, 555 U.S. ___, ___, 129 S.Ct. 711, 713, (2009).)
The Dillon court specifically addressed the reasoning of United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007) and found it unpersuasive, leading potentially to unfair results and considerable administrative challenges, relying on "the fundamental differences between sentencing and sentence-modification proceedings" and the retention by the Sentencing Commission of authority to bind the courts pursuant to § 994(u) by determining "in what circumstances and by what amount" the sentences of prisoners affected by Guidelines amendments "may be reduced." 130 S.Ct. at 2693.
In rejecting the notion that § 3582 authorizes a resentencing, the Supreme Court also rejected the argument that any mistakes made at the original sentencing should be corrected at this stage. The Court stated:
The relevant policy statement instructs that a court proceeding under § 3582(c)(2) "shall substitute" the amended Guidelines range for the initial range "and shall leave all other guideline application decisions unaffected." § 1B1.10(b)(1). Because the aspects of his sentence that Dillon seeks to correct were not affected by the Commission's amendment to § 2D1.1, they are outside the scope of the proceeding authorized by § 3582(c)(2), and the District Court properly declined to address them.Id. at 2694.
The United States Court of Appeals for the Sixth Circuit has embraced the ruling in Dillon. In United States v. Horn, 612 F.3d 524, (6th Cir. 2010), the Court of Appeals notes that the holding in Dillon ratifies the Sixth Circuit's pre-Dillon holding in United States v. Washington, 584 F.3d 693, 700 (6th Cir. 2009) which rejected the contention that the limitations imposed by § 3582(c)(2) are advisory in light of Booker.
In United States v. Allen, 614 F.3d 253 (6th Cir. 2010), defendant-appellant Kodey J. Allen, appealed the district court's decision denying, in part, his motion to reduce and modify his sentence under 18 U.S.C. § 3582(c)(2). Defendant argued that the district court had the authority to impose a sentence below the minimum sentence of the new Guidelines range, and further that the court should conduct a full resentencing hearing and entertain objections to the sentence under Booker, which had not been raised previously. The district court held that it lacked the authority to impose a sentence below the new Guidelines range or to conduct a full resentencing hearing. The Court of Appeals agreed, based upon its own precedent and the recent decision rendered by the United States Supreme Court in Dillon.
Applying the dictates of the Dillon court to this case, the Court must first determine the eligibility of the defendant to a reduction. Pursuant to Dillon, the Court is not free to reject any of the terms of U.S.S.G. § 1B1.10. At the original sentencing, the Court determined that defendant qualified as a career offender pursuant to by U.S.S.G. § 4B1.1, the defendant's offense level was 40, and his criminal history category was VI. Defendant's guideline range was 360 months to life. The application of the November 1, 2007 Amendment results in the offense level of 38. His criminal history category remains at VI. His range is 360 months to life. The holding announced in Dillon, that this is not a resentencing and that Booker does not apply, precludes reconsideration of Mr. Alsop's sentence.
III. Conclusion
The Court finds that Mr. Alsop is not eligible for the reduction of his sentence because he does not meet the criteria contained in 18 U.S.C. Section 3582(c)(2) and U.S.S.G. Section 1B1.10, thus, his original sentence of 360 months is affirmed.
The Court DENIES Mr. Alsop's Motions to Reduce (doc. nos. 143 and 148).