09-4154-cr
United States v. Mock
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5
6
7 August Term, 2009
8
9 (Submitted: July 15, 2010 Decided: July 19, 2010)
10
11 Docket No. 09-4154-cr
12
13
14 U NITED S TATES OF A MERICA,
15
16 Appellee,
17
18 –v.–
19
20 J OHN M OCK III,
21
22 Defendant-Appellant,
23
24 J ESSE J AMES B ELK,
25
26 Defendant.
27
28
29
30 Before: W ESLEY, H ALL, Circuit Judges, and G OLDBERG, Judge. *
31
32 Appeal from the district court’s denial of defendant’s
33 motion for a reduction in sentence pursuant to 18 U.S.C. §
34 3582(c)(2).
35
36 A FFIRMED.
37
38
39
40
*
The Honorable Richard W. Goldberg, United States Court of
International Trade, sitting by designation.
1 L AURIE S. H ERSHEY, Manhasset, NY, for Defendant-
2 Appellant.
3
4 S ANDRA S. G LOVER, Assistant United States Attorney
5 (William J. Nardini, Assistant United States
6 Attorney, on the brief), for Nora R. Dannehy,
7 United States Attorney, District of
8 Connecticut, New Haven, CT, for Appellee.
9
10
11
12 P ER C URIAM:
13 Defendant-Appellant John Mock III appeals from the
14 district court’s denial of his motion for a reduction in
15 sentence pursuant to 18 U.S.C. § 3582(c)(2), which he filed
16 based on the amendments to the U.S. Sentencing Guidelines
17 relating to the base offense levels for crack-related
18 offenses, see U.S.S.G., Supp. to App. C., Amend. 706
19 (effective Nov. 1, 2007); see also id. Amend. 713 (effective
20 Mar. 3, 2008) (collectively, the “crack cocaine
21 amendments”). The district court reasoned that, because
22 Mock was originally sentenced as a career offender, see
23 U.S.S.G. § 4B1.1, he was ineligible for a sentence reduction
24 based on the crack cocaine amendments.
25 On appeal, Mock argues that the district court erred at
26 his original sentencing because it did not state in open
27 court the reasons for its application of the career offender
28 Guideline. See 18 U.S.C. § 3553(c). Therefore, he argues,
2
1 the district court also erred in denying his motion for a
2 reduction in sentence by relying on its prior erroneous
3 application of U.S.S.G. § 4B1.1. Based on these
4 contentions, defendant seeks a remand for “analysis of [his]
5 criminal history” and “compliance with 18 U.S.C. § 3553(c).”
6 Defendant’s arguments misapprehend the scope of a
7 district court’s authority to reduce his sentence pursuant
8 to 18 U.S.C. § 3582(c)(2). As the Supreme Court recently
9 made clear in Dillon v. United States, No. 09-6338, --- S.
10 Ct. ---, 2010 WL 2400109 (U.S. June 17, 2010), this
11 provision authorizes a “limited adjustment to an otherwise
12 final sentence and not a plenary resentencing proceeding.”
13 Id. at *5. Therefore, neither the district court nor this
14 Court is free to address, in a proceeding pursuant to 18
15 U.S.C. § 3582(c)(2), defendant’s arguments regarding
16 procedural errors at his original, now-final sentencing.
17 Moreover, at least for purposes of a motion for a reduced
18 sentence, the record discloses that defendant was sentenced
19 as a career offender under U.S.S.G. § 4B1.1. Consequently,
20 under settled case law in this Circuit, he is ineligible for
21 a reduction in sentence based on the crack cocaine
22 amendments. See United States v. Martinez, 572 F.3d 82,
3
1 885-86 (2d Cir. 2009) (per curiam). Accordingly, we affirm.
2 I. BACKGROUND
3 In 1997, Mock pleaded guilty, pursuant to a plea
4 agreement, to one count of possessing five or more grams of
5 crack cocaine with intent to distribute, in violation of 21
6 U.S.C. § 841(a)(1). In the plea agreement, Mock and the
7 government stipulated that: (1) Mock was a “career
8 offender” under U.S.S.G. § 4B1.1(b); (2) based in part on
9 that classification, the applicable Guidelines range was 188
10 to 235 months; and (3) they would jointly recommend to the
11 district court a 188-month term of imprisonment. Following
12 defendant’s guilty plea, the U.S. Probation Department
13 completed a presentence report (“PSR”), which also concluded
14 that Mock was a career offender under U.S.S.G. § 4B1.1 and
15 concurred in the Guidelines calculation in the plea
16 agreement.
17 The district court conducted a sentencing proceeding in
18 January 1998. After statements by Mock’s counsel, Mock, and
19 the government, the court declined to enter the 188-month
20 sentence urged by the parties. Instead, it reasoned that,
21 in light of “the magnitude of [Mock’s] criminal conduct” and
22 his “very serious criminal record,” a 212-month term of
4
1 imprisonment was appropriate. Following the sentencing, in
2 its written statement of reasons, the district court
3 indicated that it had “adopt[ed] the undisputed factual
4 statements contained in the PSR.”
5 Mock did not pursue a direct appeal of his conviction
6 or sentence. However, following the crack cocaine
7 amendments, Mock, acting pro se, filed a motion for a
8 reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2).
9 The district court denied the motion on June 23, 2009,
10 reasoning that, “[b]ecause defendant was sentenced as a
11 career offender and did not receive a downward departure, he
12 is ineligible in accordance with U.S.S.G. § 1B1.10, comment,
13 for a sentence reduction.” Still acting pro se, Mock filed
14 a notice of appeal on October 3, 2009. 1 We granted his
15 motion for an appointment of counsel approximately one month
16 later.
17 II. DISCUSSION
18 We review for abuse of discretion a district court’s
1
As defendant’s appellate counsel acknowledges, the
notice of appeal was untimely. However, the government has
expressly waived any objection to this defect. In the
absence of such an objection, and because the timeliness
requirement is not jurisdictional, we proceed to the merits.
See United States v. Frias, 521 F.3d 229, 233 (2d Cir.
2008).
5
1 denial of a motion pursuant to 18 U.S.C. § 3582(c)(2). See
2 United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009).
3 Mock’s principal appellate argument proceeds in two steps.
4 First, he argues that the district court erred at his
5 original sentencing by failing to state on the record the
6 fact findings supporting the application of the career
7 offender Guideline, U.S.S.G. § 4B1.1. See 18 U.S.C. §
8 3553(c). 2 Second, Mock contends that, in light of the error
9 at his sentencing, the district court erred again when it
10 relied on Mock’s career offender status to deny his motion
11 for a reduced sentence.
12 These contentions do not afford a basis for the remand
13 Mock seeks. Mock’s sentence became final long ago, and the
14 district court lacked authority under 18 U.S.C. § 3582(c)(2)
15 to address his arguments regarding procedural error at his
16 original sentencing. Moreover, because the district court
2
One of the requirements of § 3553(c), known as the
“open court” requirement, requires that a district court,
“at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence.” 18
U.S.C. § 3553(c); see also United States v. Espinoza, 514
F.3d 209, 212 (2d Cir. 2008) (per curiam) (holding that,
even if a district court subsequently adopts the PSR’s
findings in its written statement of reasons, it violates
the open court requirement by failing to verbally adopt the
PSR’s findings at the sentencing proceeding).
6
1 used the career offender Guideline, § 4B1.1, to calculate
2 Mock’s base offense level, and not the Drug Quantity Table
3 in U.S.S.G. § 2D1.1(c), his motion for a reduced sentenced
4 was properly denied. Accordingly, for the reasons set forth
5 below, we affirm.
6 The U.S. Sentencing Commission is required to “review
7 and revise” the Guidelines and related policy statements
8 based on “comments and data coming to its attention.” 28
9 U.S.C. § 994(o); see also id. § 994(p). If the Commission
10 revises a Guideline in a manner that “reduces the term of
11 imprisonment recommended,” it is also required to “specify
12 in what circumstances and by what amount the sentences of
13 prisoners serving terms of imprisonment for the offense may
14 be reduced.” Id. § 994(u). 3 The Commission promulgated the
15 crack cocaine amendments pursuant to this statutory
16 authority. Specifically, it modified the Drug Quantity
17 Table in U.S.S.G. § 2D1.1(c), effective November 1, 2007,
18 to implement a two-level reduction of the base offense
19 levels for crack cocaine offenses. See U.S.S.G., Supp. to
3
Congress imposed these obligations on the Commission
in the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98
Stat. 1987, and they survived Justice Breyer’s remedial
opinion in United States v. Booker, 543 U.S. 220, 244-268
(2005). See Dillon, 2010 WL 2400109, at *3.
7
1 App. C., Amend. 706. In 2008, the Commission deemed
2 Amendment 706 to have retroactive effect. See id. Amend.
3 713.
4 Relying on these amendments, defendant filed a motion
5 for a reduction in sentence. “Section 3582(c)(2)
6 establishes an exception to the general rule of finality ‘in
7 the case of a defendant who has been sentenced to a term of
8 imprisonment based on a sentencing range that has
9 subsequently been lowered by the Sentencing Commission.’”
10 Dillon, 2010 WL 2400109, at *5 (quoting 18 U.S.C. §
11 3582(c)(2)). 4 The Supreme Court recently explained that §
12 3582(c)(2) permits a “limited adjustment to an otherwise
13 final sentence” — not a “plenary resentencing proceeding” —
14 and set forth a “two-step inquiry” for resolving motions for
4
Section 3582(c)(2) states, in pertinent part:
[I]n 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), . . . 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).
8
1 a reduction in sentence pursuant to this provision. Id. at
2 *5-6.
3 First, the defendant in question must be eligible for a
4 reduction in sentence. A defendant who was previously
5 sentenced based on a now-amended Guideline with retroactive
6 effect is only eligible for such relief if the reduction
7 would be “‘consistent with applicable policy statements
8 issued by the Sentencing Commission’ — namely, § 1B1.10.”
9 Id. at *6 (quoting 18 U.S.C. § 3582(c)(2)). Section 1B1.10
10 lists the “covered” Guidelines amendments that may serve as
11 the basis for a reduction in sentence, including Amendment
12 706 (as amended), and establishes limitations and
13 prohibitions on the extent of any reduction. U.S.S.G. §
14 1B1.10(b)-(c). 5 If a “defendant’s term of imprisonment is
15 not consistent with [§ 1b1.10] and therefore is not
16 authorized under 18 U.S.C. § 3582(c)(2),” U.S.S.G. §
5
“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.’” Dillon, 2010
WL 2400109, at *6 (quoting U.S.S.G. § 1B1.10).
9
1 1B1.10(a)(2), then the defendant is not eligible for a
2 reduction in sentence.
3 If, and only if, a defendant is eligible for a
4 reduction in sentence under 18 U.S.C. § 3582(c)(2) and
5 U.S.S.G. § 1B1.10, then the second step of the analytical
6 framework set forth in Dillon requires the district court
7 “to consider any applicable § 3553(a) factors and determine
8 whether, in its discretion, the reduction authorized by
9 reference to the policies relevant at step one is warranted
10 in whole or in part under the particular circumstances of
11 the case.” Dillon, 2010 WL 2400109, at *7. However, §
12 1B1.10 remains in play at this step as well. Subject to
13 certain exceptions, the policy statement prohibits district
14 courts from reducing the defendant’s sentence “to a term
15 that is less than the minimum of the amended guideline
16 range.” U.S.S.G. § 1B1.10(b)(2)(A). In Dillon, 2010 WL
17 2400109, at *7-8, the Supreme Court agreed with our view
18 that courts “are bound by the language of this policy
19 statement because Congress has made it clear that a court
20 may reduce the terms of imprisonment under § 3582(c) only if
21 doing so is ‘consistent with applicable policy statements
22 issued by the Sentencing Commission.’” United States v.
10
1 Williams, 551 F.3d 182, 186 (2d Cir. 2009) (quoting 18
2 U.S.C. § 3582(c)(2)).
3 Dillon therefore provides at least two lessons about
4 the nature of the proceedings authorized by 18 U.S.C.
5 § 3582(c)(2). First, no Sixth Amendment problem of the sort
6 identified in United States v. Booker, 543 U.S. 220 (2005)
7 results from the restrictions on a district court’s
8 sentencing discretion on a motion for a reduced sentence
9 under 18 U.S.C. § 3582(c)(2). See Dillon, 2010 WL 2400109,
10 at *7-8. Second, because § 3582(c)(2) “does not authorize a
11 sentencing or resentencing proceeding,” id. at *5, a
12 defendant may not seek to attribute error to the original,
13 otherwise-final sentence in a motion under that provision.
14 This latter principle bears directly on defendant’s
15 appeal. His 212-month sentence is final, subject only to
16 the limited exception created by 18 U.S.C. § 3582(c)(2).
17 The Dillon Court expressly rejected the argument that this
18 provision authorizes a full resentencing. Therefore,
19 regardless of whether there is merit to defendant’s argument
20 that the district court committed procedural error when it
21 applied the career offender Guideline at his original
22 sentencing, neither the district court nor this Court is
11
1 authorized to consider that contention in the context of a
2 motion pursuant to 18 U.S.C. § 3582(c)(2).
3 In light of that conclusion, the remainder of
4 defendant’s appellate argument fails. Defendant was
5 sentenced under the career offender Guideline, U.S.S.G.
6 § 4B1.1, which was not affected by the crack cocaine
7 amendments that he relied upon as the basis for his motion.
8 Indeed, in his plea agreement, defendant stipulated to the
9 application of § 4B1.1. “[A] defendant convicted of crack
10 cocaine offenses but sentenced as a career offender under
11 U.S.S.G. § 4B1.1 is not eligible to be resentenced under the
12 amendments to the crack cocaine guidelines.” Martinez, 572
13 F.3d at 85. Therefore, the district court did not err in
14 denying defendant’s motion for a reduction in sentence.
15 III. CONCLUSION
16 We have considered each of defendant’s arguments and
17 find them to be without merit. Accordingly, for the
18 foregoing reasons, the judgment of the district court is
19 AFFIRMED.
12