United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 8, 2009 Decided November 3, 2009
No. 08-3024
UNITED STATES OF AMERICA,
APPELLEE
v.
SHECHEM LAFAYETTE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:88-cr-00254-TFH-1)
A. D. Martin, appointed by the court, argued the cause
and filed the briefs for appellant.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jeffrey A. Taylor,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese III, Assistant U.S. Attorney.
Before: SENTELLE, Chief Judge, TATEL, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
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TATEL, Circuit Judge: Under section 3582(c)(2) of Title
18 of the United States Code, district courts may reduce a
defendant’s sentence if it was imposed based on a Sentencing
Guidelines range that has since been lowered. Relying on this
provision, appellant moved for a sentence reduction based on
a recent Guidelines amendment and also sought to use his
motion as a vehicle to gain the retroactive benefit of Apprendi
v. New Jersey, 530 U.S. 466 (2000), and United States v.
Booker, 543 U.S. 220 (2005). Because section 3582(c)(2)
permits courts to consider only the consequences of
Guidelines changes and does not reopen other elements of a
sentence, we deny appellant’s Apprendi and Booker claims.
And finding that the district court acted within its discretion in
denying a sentence reduction based on the Guidelines
amendment itself, we likewise reject the other aspects of his
appeal.
I.
When we reviewed an earlier iteration of this case six
years ago, we noted its “lengthy and tortured procedural
history.” United States v. Lafayette, 337 F.3d 1043, 1046
(D.C. Cir. 2003) (internal quotation marks omitted). Since
then, the case has become only more byzantine, but
fortunately the facts relevant to the present appeal can be
summarized quite briefly.
In 1988, a federal jury found appellant Shechem
Lafayette guilty on all counts of a nine-count indictment for
narcotics and firearms violations. Lafayette was “a leader of
a group of five or more people” that “had actually taken over
most of an apartment building” in the District of Columbia,
where they had stored substantial quantities of drugs and
guns. Hr’g Tr. at 28 (Mar. 27, 2008). The district court
sentenced Lafayette to a prison term of 410 months followed
by five years of supervised release, but later reduced that
3
sentence to 292 months after vacating two of his firearms
convictions. This 292-month total comprised a 292-month
term for Count Four of his original indictment (possession
with intent to distribute of fifty grams or more of cocaine
base) and concurrent terms of 240 months or less for each of
the remaining counts. Having completed the 240-month
sentences, Lafayette remains incarcerated only because of his
sentence for Count Four, the focus of this case.
Lafayette initiated this action in 2007 by filing a pro se
motion for reduction of his Count Four sentence pursuant to
18 U.S.C. § 3582(c)(2). Although normally courts “may not
modify a term of imprisonment once it has been imposed,” 18
U.S.C. § 3582(c), section 3582(c)(2) allows them to do so in
certain limited circumstances. Section 3582(c)(2) provides:
[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 . . . , upon motion of the
defendant or the Director of the Bureau of Prisons, or
on its own motion, 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.
Lafayette recently became eligible for this exception
thanks to Sentencing Guidelines Amendment 706, which
lowered the base offense levels applicable to crack cocaine
offenses. U.S.S.G. app. C, amend. 706 (Nov. 1, 2007), made
retroactive by U.S.S.G. app. C, amend. 713 (Mar. 3, 2008).
The government opposed Lafayette’s request for a reduced
sentence, citing the serious nature of his crimes, his
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disciplinary record while incarcerated, and his refusal to
accept responsibility for his offenses. Following a hearing,
the district court orally denied Lafayette’s motion for the
reasons suggested by the government.
On appeal, Lafayette presses two arguments. First, he
contends that his section 3582(c)(2) motion reopened his
Count Four sentence, entitling him to the benefit of Apprendi
and Booker. Second, he argues that the district court abused
its discretion in denying the requested sentence reduction.
We appointed counsel to represent Lafayette.
II.
In Apprendi, the Supreme Court held that “[o]ther than
the fact of a prior conviction, 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.” 530 U.S. at 490. In Booker, the Court held that
because Apprendi rendered the U.S. Sentencing Guidelines
unconstitutional as a system of mandatory rules, judges must
henceforth treat them as advisory only. 543 U.S. at 243–46.
Lafayette argues that his Count Four sentence violates
both principles: when the district court originally imposed the
sentence, it (1) believed the Guidelines were mandatory,
which would now violate Booker, and (2) acted without a jury
finding of drug quantity, which under Apprendi would now be
required for any sentence longer than 240 months for
possession with intent to distribute. See United States v.
Fields, 251 F.3d 1041, 1043 (D.C. Cir. 2001) (“Apprendi . . .
applies to sentences predicated on drug quantity where
progressively higher statutory maximums are triggered by
findings of progressively higher quantities of drugs.”).
Lafayette contends that by denying his section 3582(c)(2)
motion, the district court effectively reimposed his sentence
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and unearthed its latent defects. Although this is not the first
time Lafayette has attempted to gain the retroactive benefit of
Apprendi and Booker, see Lafayette, 337 F.3d at 1046–48;
Lafayette v. United States, No. 88-254-1 (D.D.C. July 29,
2004), it is the first time he has tried to do so pursuant to
section 3582(c)(2). As it presents a pure question of law, we
consider this new version of his arguments de novo. See
United States v. McCoy, 313 F.3d 561 (D.C. Cir. 2002).
Section 3582(c)(2) provides a circumscribed opportunity
for district courts to give sentencing relief when the
Sentencing Guidelines are changed. A defendant’s right to
file under this exception to the usual finality of sentencing
decisions is triggered only by a Guidelines amendment.
Given this, we think it would be quite incongruous, to say the
least, if section 3582(c)(2) provided an avenue for sentencing
adjustments wholly unrelated to such an amendment. Indeed,
under Lafayette’s construction of the provision, every
retroactive Guidelines amendment would carry a significant
collateral windfall to all affected prisoners, reopening every
aspect of their original sentences.
That section 3582(c)(2) is not so broad is clear from the
applicable Sentencing Commission policy statement, which
imposes an independent limit on district courts’ discretion.
See 18 U.S.C. § 3582(c)(2) (reductions must be “consistent
with applicable policy statements issued by the Sentencing
Commission”). The statement warns that “proceedings under
18 U.S.C. § 3582(c)(2) . . . do not constitute a full
resentencing of the defendant.” U.S.S.G. § 1B1.10(a)(3). The
Guidelines direct courts to “determin[e] whether, and to what
extent, a reduction in the defendant's term of imprisonment
. . . is warranted” by “determin[ing] the amended guideline
range that would have been applicable to the defendant if the
amendment(s) to the guidelines listed in subsection (c) had
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been in effect at the time the defendant was sentenced.” Id. §
1B1.10(b)(1). Emphasizing the limited nature of the section
3582(c)(2) remedy, the Guidelines further direct that “[i]n
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. These statements leave no doubt
that section 3582(c)(2) cannot be made the basis for all—or
indeed most—challenges to a sentence.
Seeking to avoid this conclusion, Lafayette argues that
the district court “reimpos[ed]” his prior sentence and thereby
violated the Fifth and Sixth Amendment anew. Appellant’s
Br. 16. But whatever verb one uses to describe the district
court’s action, the court did not start from scratch. To the
extent Lafayette’s sentence may have constitutional
infirmities, they are features of earlier sentencing decisions,
not the district court’s latest, narrow section 3582(c)(2)
determination.
Lafayette relies on United States v. Hicks, 472 F.3d 1167
(9th Cir. 2007), but that decision addresses a different issue.
Hicks holds that when a court reduces a sentence pursuant to
section 3582(c)(2), it must treat the amended Guidelines
range as advisory in determining the extent of the reduction.
Id. at 1170. If Hicks is correct, it is because a section
3582(c)(2) sentence reduction requires a new Guidelines
calculation, and it is that calculation, not the calculation in the
original sentence, that raises a Booker problem. Here, the
district court denied Lafayette’s request for a reduction, so his
sentence is not based on any new calculation at all. Instead,
Lafayette seeks to challenge a Guidelines determination made
years ago. Section 3582(c)(2) cannot bear such a claim.
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Moreover, as a result of Hicks, district courts in the Ninth
Circuit now have more, not less, discretion in section
3582(c)(2) proceedings than the Sentencing Commission’s
policy statement would otherwise allow. Here, the district
court already had discretion within the revised Guidelines
range to do anything from leaving Lafayette’s sentence
untouched, as it did, to ordering him released immediately.
We thus see no way that Hicks could have made any
difference.
Given this, and as the Third and Seventh circuits have
both held in cases brought under section 3582(c)(2), the
proper vehicle for Lafayette’s Booker and Apprendi
arguments is a petition under 28 U.S.C. § 2255. See United
States v. McBride, 283 F.3d 612, 614–16 & n.1 (3rd Cir.
2002); United States v. Smith, 241 F.3d 546, 548 (7th Cir.
2001). Even if, following the Seventh Circuit’s lead, we were
to treat Lafayette’s constitutional claims as having been filed
under section 2255, we would again deny them. See
Lafayette, 337 F.3d 1043 (denying previous section 2255
petition). Because Lafayette has sought relief under section
2255 several times, any further petition would require him to
show either new, clear, and convincing evidence of
innocence—not at issue here—or “a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court.” 28 U.S.C. § 2255(h). Moreover, “the
Supreme Court is the only entity that can ‘make’ a new rule
retroactive” within the meaning of this provision, and only an
express holding or a combination of cases that “necessarily
dictate retroactivity of [a] new rule” will suffice. Tyler v.
Cain, 533 U.S. 656, 663, 666 (2001) (internal alterations to
first quotation omitted). The Supreme Court “has not ‘made’
either [Booker or Apprendi] retroactive within the meaning of
§ 2255,” In re Zambrano, 433 F.3d 886, 888 (D.C. Cir. 2006),
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a fact that would be fatal to Lafayette’s attempt to gain the
benefit of these cases.
III.
We turn next to Lafayette’s arguments that fall within the
four corners of section 3582(c)(2). Because section
3582(c)(2) unambiguously grants discretionary authority to
the district court—it says district courts “may” grant a
reduction—we follow the familiar standard for review of
sentencing decisions: we “first ensure that the district court
committed no significant procedural error . . . . [and] then
consider the substantive reasonableness of the [court’s
decision] under an abuse-of-discretion standard.” Gall v.
United States, 128 S. Ct. 586, 597 (2007).
Lafayette offers a host of reasons why he thinks the
district court’s decision flunks even this deferential review:
the court considered factors it should not have, it failed to
consider other required factors, and it weighed the factors it
did consider in an unreasonable fashion. These arguments are
all without merit.
In deciding whether to grant a reduction, the district
court’s discretion must be guided by “the factors set forth in
section 3553(a) to the extent that they are applicable.” 18
U.S.C. § 3582(c)(2). These factors include “the nature and
circumstances of the offense and the history and
characteristics of the defendant” as well as “the need for the
sentence imposed . . . to protect the public from further crimes
of the defendant.” 18 U.S.C. §§ 3553(a)(1), (a)(2)(c). Here,
carefully evaluating these factors, the district court observed
that Lafayette “has never . . . accept[ed] responsibility in any
way for the multiple offenses for which he was convicted,”
Hr’g Tr. at 26, considered the severity of Lafayette’s original
crimes, id. at 27–30, and noted several incidents in prison
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involving “violence as well as an attempted importing of
narcotics.” Id. at 31. The district court viewed Lafayette’s
educational and legal work while in prison as evidence of
rehabilitation, id. at 30–31, yet concluded that such
considerations could not “overcome the potential danger to
the community if he’s released at this time.” Id. at 31. All
the factors considered by the court were appropriate under
section 3553(a), and although the court did not touch on every
item mentioned by this section, a district judge acting
pursuant to section 3582(c)(2), just as in a more typical
sentencing proceeding, has no obligation to “consider every §
3553(a) factor in every case.” In re Sealed Case, 527 F.3d
188, 191 (D.C. Cir. 2008). Given this, the district court’s
decision was more than adequate to demonstrate that it
“considered the parties’ arguments and ha[d] a reasoned basis
for exercising [its] own legal decisionmaking authority.” Rita
v. United States, 551 U.S. 338, 356 (2007). Likewise, the
conclusion that the district court reached based on this
analysis represented a reasonable exercise of its discretion.
Finally, Lafayette asks that even if we deny his request
for a reduced prison term, we remand for the district court to
shorten his upcoming five-year term of supervised release.
Even assuming that section 3582(c)(2), which on its face only
allows courts to reduce a “term of imprisonment,” can be
stretched to cover other aspects of a sentence, the district
court correctly denied any reduction because Lafayette’s five-
year term of supervised release is mandated by 21 U.S.C. §
841(b)(1)(A). That section provides that “any sentence under
this subparagraph shall, in the absence of . . . a prior
conviction, impose a term of supervised release of at least 5
years.” Because Lafayette’s Count Four sentence was a
“sentence under this subparagraph,” the district court had no
authority to grant the requested reduction. See United States
v. Paulk, 569 F.3d 1094, 1095–96 (9th Cir. 2009) (holding
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that district courts may not reduce sentences based on a
mandatory statutory minimum under section 3582(c)(2) and
collecting cases from other circuits reaching the same result).
For the reasons stated above, we affirm.
So ordered.