United States v. McKenzie

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-7630

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

MAURICE EDGAR MCKENZIE, a/k/a Cappo, a/k/a Cappa, a/k/a
Richard Knight, a/k/a Emanuel Askew,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (9:97-cr-00032-SB-1)

Submitted: February 5, 2009 Decided: March 18, 2009

Before MICHAEL, KING, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Maurice Edgar McKenzie, Appellant Pro Se. Robert Hayden
Bickerton, Peter Thomas Phillips, Assistant United States
Attorneys, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Maurice Edgar McKenzie appeals from the district

court’s order granting in part his 18 U.S.C. § 3582(c) (2006)

motion for reduction of sentence based on the crack cocaine

amendments to the Sentencing Guidelines. On appeal, McKenzie

asserts that the district court failed to conduct a proper

analysis of his motion. Because the district court’s order

contains insufficient reasoning to permit appellate review, we

vacate and remand.

At sentencing, McKenzie’s Guidelines range was

calculated to be 262 to 327 months in prison. The district

court sentenced him to 327 months imprisonment. In June 2008,

McKenzie, through appointed counsel, filed the instant motion to

reduce his sentence. McKenzie stated that application of the

amendments would lower his Guidelines range to 210-262 months in

prison. McKenzie requested a sentence of 210 months, and the

Government consented.

The district court did not hold a hearing. Instead,

the court granted the motion in part and entered a sentence of

262 months. The order contained no reasoning or explanation.

The court merely stated that the “defendant is subject to a

reduced sentencing range . . . . Therefore, it is hereby

ORDERED that the previously imposed sentence of 327 months is

reduced to 262 months.”

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We review the district court’s decision to modify a

sentence under an abuse of discretion standard. See United

States v. Legree, 205 F.3d 724, 727 (4th Cir. 2000). In

deciding whether to grant a motion to reduce sentence based upon

a Guideline amendment, the district court must “consider[] the

factors set forth in [18 U.S.C.] section 3553(a) [(2006)] to the

extent that they are applicable” and must determine whether

“reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

A district court need not engage in a “ritualistic incantation”

in order to establish its consideration of the motion. Instead,

it is presumed that the court considered the § 3553 factors, as

well as the issues presented for determination, when issuing its

ruling. Legree, 205 F.3d at 728-29.

We find that the circumstances of the instant case

overcome the presumption that the court properly considered the

statutory factors and other issues relevant to the motion, and

we conclude that, under the specific facts of this case, the

district court’s failure to provide reasoning was an abuse of

discretion. First, unlike in Legree, in this case, the

Government agreed to the sentencing reduction sought by

McKenzie. The parties jointly recommended a sentence over five

years shorter than the one McKenzie received. The court did not

hold a hearing and gave no reasons for granting the motion in

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part, but rejecting the parties’ recommendation of the

appropriate sentence. While the parties’ agreement was not

binding on the district court, the court’s reasons for rejecting

the agreement are simply absent.

Second, the motion in Legree was denied; here, the

motion was granted in part. One could logically conclude from

the decision in Legree that the reasons underlying the original

sentence remained the district court’s reasoning. See 205 F.3d

at 729. Here, however, the court clearly determined that the

§ 3553 factors merited a partial reduction in sentence; however,

the court provided no insight into its thought process as to the

appropriate reduction. Any determination by this court as to

the basis of the district court’s decision would be purely

speculative.

Finally, while in both Legree and the instant case,

the judge presiding over the § 3582 motion was the same judge as

at the original sentence, the elapsed time in this case was

significantly longer. In Legree, the time between the two

events was approximately three years, see id. at 721-27, while

in this case over nine years elapsed between sentencing and the

§ 3582 motion. It is not clear whether the judge, in

considering McKenzie’s § 3582 motion, recalled factors presented

at the original sentencing. The original sentencing transcript

is not included in the record on appeal, so it is also unclear

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whether the court was even able to review it or how thoroughly

McKenzie’s background was initially examined.

Accordingly, we vacate the district court’s order and

remand the case for the district court to provide adequate

reasoning for its decision. We express no opinion on the length

of an appropriate sentence. We decline to address the merits of

McKenzie’s remaining claims on appeal. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

VACATED AND REMANDED