RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0212p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-5178
v.
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Defendant-Appellant. -
KODEY J. ALLEN,
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Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 02-00060-001—Karl S. Forester, District Judge.
Decided and Filed: July 22, 2010
*
Before: SILER and CLAY, Circuit Judges; GRAHAM, District Judge.
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COUNSEL
ON BRIEF: Patrick F. Nash, LAW OFFICES, Lexington, Kentucky, for Appellant.
Charles P. Wisdom, Jr., John Patrick Grant, ASSISTANT UNITED STATES
ATTORNEYS, Lexington, Kentucky, for Appellee.
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OPINION
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GRAHAM, District Judge. Defendant-appellant Kodey J. Allen (hereinafter
“Defendant”), appeals the district court’s decision denying, in part, his motion to reduce
and modify his sentence under 18 U.S.C. § 3582(c)(2). On February 6, 2009, Defendant
appeared before the district court for resentencing pursuant to § 3582(c)(2) as a result
of a retroactive amendment to the United States Sentencing Guidelines (“U.S.S.G.”)
*
The Honorable James L. Graham, United States District Judge for the Southern District of Ohio,
sitting by designation.
1
No. 09-5178 United States v. Allen Page 2
which reduced the sentencing range applicable to cocaine base offenses. See U.S.S.G.
Supp.App. C, Amends. 706 and 713. At the hearing, 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 United States v. Booker, 543 U.S. 220
(2005), 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. Defendant now challenges these rulings on appeal. Based upon
our own precedent and the recent decision rendered by the United States Supreme Court
in Dillon v. United States, ___ U.S. ___, 2010 WL 2400109 (June 17, 2010), we affirm
the judgment of the district court.
I. BACKGROUND
Defendant was arrested on an outstanding warrant on February 24, 2002. During
his encounter with the police, Defendant threw a plastic bag on the ground which was
found to contain approximately 28.56 grams of cocaine base. A loaded handgun was
found under the driver’s seat of defendant’s vehicle. Defendant was subsequently
charged by indictment filed on April 4, 2002, in the United States District Court for the
Eastern District of Kentucky, with one count of possession with intent to distribute over
five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count
1), one count of carrying a firearm during and in relation to a drug trafficking offense
and possessing a firearm in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1) (Count 2), and a forfeiture count under 21 U.S.C. § 853 (Count 3).
On July 2, 2002, a jury found Defendant guilty on Counts 1 and 2, and noted on the
verdict form that the drug offense in Count 1 involved five grams or more of a mixture
of substance containing a detectable amount of cocaine base.
The probation officer determined that the quantity of cocaine base attributable
to Defendant as relevant conduct was 28.56 grams. This quantity of drugs, combined
with a criminal history category of V, yielded a Guidelines sentencing range of 130-162
months on Count 1. Count 2 carried a mandatory consecutive term of 60 months. The
No. 09-5178 United States v. Allen Page 3
presentence report indicates that Defendant raised no objection to these calculations. On
September 13, 2002, Defendant was sentenced to a term of incarceration of 142 months
on Count 1 and to a consecutive term of 60 months incarceration on Count 2, resulting
in a total term of imprisonment of 202 months. Defendant pursued a direct appeal, and
his conviction was affirmed. See United States v. Allen, 79 Fed.Appx. 745 (6th Cir.
2003). Defendant raised no objections to his sentence on direct appeal.
By way of a probation report dated February 15, 2008, the district judge was
informed that Defendant was eligible for a reduction in sentence pursuant to § 3582(c)(2)
and U.S.S.G. Amendments 706 and 713, which retroactively lowered the Guidelines
range contained in U.S.S.G. § 2D1.1, as applied to cocaine base offenses, by two offense
levels. Based on the reduction from a total offense level of 28 to a total offense level of
26, Defendant’s new Guidelines range was calculated as being 110-137 months on Count
1. The probation officer recommended a reduced sentence of 120 months on Count 1.
On March 6, 2008, the district court entered an amended judgment reducing
Defendant’s sentence of imprisonment on Count 1 to 120 months. Defendant filed an
appeal from that judgment to this court, arguing that he was denied the opportunity to
present sentencing arguments to the district court. On joint motion of the parties, the
sentence was vacated, and by order of this court filed on November 5, 2008, the case was
remanded to the district court for resentencing.
The district court held a sentencing hearing on February 6, 2009. Defendant
objected to the imposition of a sentence based on the drug quantity of 28.56 grams of
cocaine base, which exceeded the minimum amount of drugs (5 grams) specifically
found by the jury on the verdict form. Defendant also sought a variance below the
amended Guidelines range, arguing that pursuant to United States v. Booker, 543 U.S.
220 (2005), the district court had the authority to treat the Guidelines as advisory and to
consider the sentencing factors in 18 U.S.C. § 3553(a) in imposing a sentence below the
minimum of the new Guidelines range.
The district court concluded that U.S.S.G. § 1B1.10(b)(2)(A) did not authorize
a reduction of Defendant’s sentence below the minimum of the new Guidelines range.
No. 09-5178 United States v. Allen Page 4
The district court found that Booker did not authorize the court to conduct a full
resentencing hearing or to impose a sentence below the minimum of the new Guidelines
range.1 The district court entered judgment imposing an amended sentence of 120
months incarceration on Count 1, to be followed by a consecutive term of incarceration
of 60 months on Count 2. Defendant filed the instant appeal from that judgment.
II. STANDARD OF REVIEW
Where a district court concludes that it lacks authority to reduce a defendant’s
sentence under § 3582(c)(2), the district court’s determination is a question of law that
is reviewed de novo. United States v. Johnson, 569 F.3d 619, 623 (6th Cir. 2009).
Review of the sentencing court’s interpretation of statutes is also reviewed de novo.
United States v. Washington, 584 F.3d 693, 695 (6th Cir. 2009).
III. ANALYSIS
A. New sentence within amended Guidelines range
Defendant argues that the district court erred in concluding that it lacked the
authority to impose a sentence below the minimum of the amended Guidelines range.
He contends that the district court had the authority under § 3582(c)(2) to apply the
statutory sentencing factors listed in § 3553(a) and to impose a sentence below the new
Guidelines range.
A district court may modify a defendant’s sentence only as provided by statute.
Washington, 584 F.3d at 695. A federal court generally “may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C. § 3582(c); Dillon, 2010 WL
2400109, at *2. One exception is found in § 3582(c)(2), which permits a district court
to modify a term of imprisonment
1
In the alternative, the district court also rejected Defendant’s argument that his offense level
should be based on no more than five grams of cocaine base, stating that the “evidence at trial revealed
that [defendant] was in possession of over 28 grams of crack cocaine, resulting in an original offense level
of 28.”
No. 09-5178 United States v. Allen Page 5
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) . . .
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).
A proceeding under § 3582(c)(2) involves a two-step inquiry. Dillon, 2010 WL
2400109, at *6. First, the relevant Guidelines policy statement requires the court to
“determine the amended guideline range that would have been applicable to the
defendant” if the amendment had been in effect at the time of the original sentence, to
“substitute only the amendments listed in subsection (c) for the corresponding guideline
provisions that were applied when the defendant was sentenced” and to “leave all other
guideline application decisions unaffected.” U.S.S.G. § 1 B1.10(b)(1). The policy
statement further provides that unless the original term of imprisonment imposed was
less than the minimum of the range applicable to the defendant at the time of sentencing,
“the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) and this policy statement to a term that is less than the minimum of the
amended guideline range determined under subdivision (1) of this subsection.” U.S.S.G.
§ 1B1.10(b)(2)(A).
If the court determines that the defendant is eligible for a reduction under an
amendment to the applicable Guidelines range, the court then proceeds to step two of the
inquiry. Dillon, 2010 WL 2400109, at *7. Pursuant to § 3582(c)(2), the district court
must consider any applicable factors in § 3553(a) 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.” Id.
Read together, § 1 B1.10(b) and § 3582(c)(2) do not permit a sentence below the
bottom of the amended Guidelines range. See Dillon, 2010 WL 2400109, at *6 (“Courts
generally may ‘not reduce the defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) . . . to a term that is less than the minimum of the amended guideline range’
No. 09-5178 United States v. Allen Page 6
produced by the substitution” of the Guidelines amendment)(quoting
§ 1B1.10(b)(2)(A)); Washington, 584 F.3d at 701 (holding that a district court is not
authorized under § 3582(c)(2) to reduce a sentence below the amended Guidelines
range).
Defendant argues that under Booker, §§ 1B1.10(b)(1) and (2) should be treated
as being advisory in nature. He argues that applying § 1B1.10(b)(2)(A) as written would
create a mandatory sentencing scheme which would violate Booker and the Sixth
Amendment. This court rejected this argument in Washington, noting that the
“constitutional infirmity that Booker addressed was that ‘any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.’” 584 F.3d at 699 (quoting Booker, 543
U.S. at 227-28). Under § 3582(c)(2), a district court can only decrease a defendant’s
sentence. Therefore, “the statutory parameters and restrictions imposed upon judges in
reducing otherwise valid sentences do not implicate the Sixth Amendment” and “‘the
constitutional defect addressed by Booker is simply not implicated.’” Id. at 699, 700
(emphasis in original)(quoting United States v. Cunningham, 554 F.3d 703, 707 (7th Cir.
2009)).
The position advocated by Defendant was also rejected by the Supreme Court in
Dillon, where the Court stated that “[g]iven the limited scope and purpose of
§ 3582(c)(2), we conclude that proceedings under that section do not implicate the
interests identified in Booker.” Dillon, 2010 WL 2400109, at *7. The Court noted that
proceedings under § 3582(c)(2) do not implicate the Sixth Amendment right to have
essential facts found by a jury beyond a reasonable doubt because any facts found by the
judge at such a proceeding only affect the judge’s exercise of discretion within a
prescribed range of punishment and do not serve to increase that range. Id. The Court
also declined to hold that § 1B1.10(b)(2)’s instruction not to depart from the amended
Guidelines range at § 3582(c)(2) proceedings was advisory, noting that by enacting
28 U.S.C. § 994(u), Congress gave the United States Sentencing Commission the
authority to determine “‘in what circumstances and by what amount’ the sentences of
No. 09-5178 United States v. Allen Page 7
prisoners affected by Guidelines amendments ‘may be reduced.’” Id. at *8 (quoting
28 U.S.C. § 944(u)).
In the instant case, Amendment 706 is listed in U.S.S.G. § 1B1.10(c) as an
amendment which qualifies for retroactive application. See § 1B1.10(c). The district
court correctly applied the two-level reduction permitted under Amendment 706 and
arrived at a new total offense level of 26, with a Guidelines sentencing range of 110-137
months on Count 1. The district court did not err in concluding that it lacked the
authority to impose a sentence outside this amended Guidelines range.
B. Attack on original sentence.
Defendant also argues that the district court erred in calculating his reduced
sentence using the Guidelines range applied at the original 2002 sentencing hearing.
Defendant contends that because the original range was based on a quantity of drugs,
between 20 and 35 grams, which was found by the court to constitute relevant conduct,
rather than the minimum quantity of 5 grams noted by the jury on the verdict form, his
sentence violated Booker. He argues that his reduced sentence should have been based
upon the offense level applicable to 5 grams of cocaine base.
This attack is outside the scope of a resentencing proceeding under § 3582(c)(2).
That section authorizes a reduction in sentence only if it “is consistent with applicable
policy statements issued by the Sentencing Commission.” § 3582(c)(2). The Guidelines
state that in reducing a term of imprisonment under § 3582(c)(2), “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.” § 1B1.10(b)(1).
As this court held in Washington, “[t]he policy statements plainly provide that
§ 3582(c)(2) proceedings are not full resentencings and may not result in a sentence
lower than the amended Guidelines range (unless the defendant’s original sentence was
lower than the Guidelines range).” 584 F.3d at 700 (citing § 1B1.10(b)(2)(A)-(B)). The
Supreme Court in Dillon rejected the argument that the district court erred in failing to
No. 09-5178 United States v. Allen Page 8
correct two mistakes in the original sentence which were not affected by the amendment
to § 2D1.1. Dillon, 2010 WL 2400109, at *9. The Court held that “[b]y its terms,
§ 3582(c)(2) does not authorize a sentencing or resentencing proceeding.” Id. at *5.
“Instead, it permits a sentence reduction within the narrow bounds established by the
Commission.” Id. at *9. The text of § 3582(c)(2), “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.” Id. at *5. The Court further
noted that the fact that § 3582(c)(2) instructs the district court, “at the second step of this
circumscribed inquiry,” to consider any applicable § 3553(a) factors in determining
whether to grant a reduction which is authorized by § 1 B1.10(b) “cannot serve to
transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.”
Id. at *7.
Defendant’s argument attacking the district court’s drug quantity findings made
at the 2002 sentencing hearing was beyond the scope of the sentence reduction
proceedings under § 3582(c)(2). The district court correctly found that it did not have
the authority to conduct a full resentencing hearing.2
IV. CONCLUSION
The district court properly concluded that it lacked the authority in proceedings
under § 3582(c)(2) to sentence Defendant below the bottom of the amended Guidelines
range or to entertain a challenge under Booker to the district court’s calculation of the
original Guidelines range. For the foregoing reasons, we AFFIRM the judgment of the
district court.
2
Even if Defendant’s argument is construed as a petition under 28 U.S.C. § 2255, the district
court could not have granted the relief sought. Booker is not retroactively applicable to cases on collateral
review. United States v. Carter, 500 F.3d 486, 491 (6th Cir. 2007). In addition, the fact that the district
court computed Defendant’s original sentence using a different quantity of drugs than that specifically
found by the jury did not violate the Sixth Amendment, as applied in Apprendi v. New Jersey, 530 U.S.
466 (2000), because the resultant sentence of 142 months was below 40 years, the prescribed statutory
maximum for the quantity of drugs actually found by the jury. United States v. Solorio, 337 F.3d 580, 597
(6th Cir. 2003).