United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2010 Decided February 15, 2011
No. 09-3124
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES DUNN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:91-cr-00243)
Mary Manning Petras, Assistant Federal Public
Defender, argued the cause for appellant. With her on the
briefs was A. J. Kramer, Federal Public Defender.
Kristina L. Ament, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III, T. Anthony Quinn,
and Ann K.H. Simon, Assistant U.S. Attorneys. Mary B.
McCord, Assistant U.S. Attorney, entered an appearance.
Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Appellant James Dunn is
serving consecutive prison sentences for possession of crack
cocaine and murder. After a retroactive change in the federal
Sentencing Guidelines, the district court reduced his drug
sentence under 18 U.S.C. § 3582(c)(2), but concluded that it
lacked authority to make that sentence concurrent rather than
consecutive with his murder sentence. We affirm the district
court’s judgment.
I
In 1989, James Dunn was arrested and charged with
second-degree felony murder under the laws of the District of
Columbia. While released pending trial in the D.C. Superior
Court, Dunn was arrested and charged with a federal crime
for possessing 95 grams of crack cocaine. In August 1991, he
pled guilty to the D.C. murder charge. Several weeks later, he
pled guilty to the federal drug charge. On November 6, 1991,
the federal district court sentenced Dunn to 121 months in
prison and five years supervised release for the drug offense,
at the low end of the 121 to 151 months recommended by the
Sentencing Guidelines. Two days later, the Superior Court
sentenced Dunn to a consecutive prison term of 15 years to
life for second-degree murder.
In November 2007, the U.S. Sentencing Commission
amended the Sentencing Guidelines to lower the penalties for
crack-cocaine possession. See U.S.S.G. Supp. App. C, Amdt.
706 (effective Nov. 1, 2007). The new sentencing range for
Dunn’s drug offense was 97 to 121 months. Soon thereafter,
the Commission made this reduction retroactive. See id.,
Amdt. 713 (effective Mar. 3, 2008).
3
Congress has provided a means for prisoners to benefit
from such retroactive changes in the Guidelines. “[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 . . . the court may reduce the term of
imprisonment . . . .” 18 U.S.C. § 3582(c)(2). In March 2008,
Dunn filed a pro se motion to reduce his sentence under this
statute. In August 2009, he filed an amended motion through
counsel with the additional request that his drug sentence be
made concurrent with, instead of consecutive to, his murder
sentence.
In November 2009, the district court reduced Dunn’s
cocaine sentence to the statutory minimum of 120 months, see
21 U.S.C. § 841(b)(1)(A)(iii) (2006), but concluded that it
lacked authority to change the consecutive nature of his
sentences. United States v. Dunn, 668 F. Supp. 2d 220, 222
(D.D.C. 2009). Dunn now appeals the latter holding. We
review the district court’s legal conclusions de novo,
exercising appellate jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a)(1).1
1
Although the district court may have erred by reducing the length
of Dunn’s completed prison term after he had served all 121
months in prison for his drug offense, see United States v. Gamble,
572 F.3d 472, 473-74 (8th Cir. 2009), the government agreed to the
reduction and has not pressed the issue on appeal. The
government’s litigation strategy does not relieve us of the
obligation to assure ourselves of the district court’s jurisdiction,
especially under a statute whose limitations we have described as
having a “somewhat jurisdictional flavor.” United States v. Smith,
467 F.3d 785, 789 (D.C. Cir. 2006). We are satisfied that the
district court had jurisdiction here because § 3582(c)(2) “creates a
class of cases that the district court is empowered to act upon—
cases where a defendant has been sentenced to a term of
4
II
Dunn argues that a court granting a reduction under
§ 3582(c)(2) has authority under 18 U.S.C. § 3584(a) to make
the reduced sentence concurrent with the prisoner’s other
sentences. Section 3584(a) states: “[I]f a term of
imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms
may run concurrently or consecutively. . . .” According to
Dunn, a § 3582(c)(2) proceeding “imposes” a new sentence
and thereby triggers the court’s discretion under § 3584(a) to
make the reduced sentence concurrent rather than
consecutive.
Dunn’s argument is foreclosed by the Supreme Court’s
recent decision in Dillon v. United States, 130 S. Ct. 2683
(2010), which made clear that a court’s authority in a
sentence-reduction proceeding is strictly limited to shortening
the length of a prison term and does not extend to collateral
matters unrelated to the Guidelines change. Dillon was a
prisoner serving a sentence subject to the same retroactive
Guidelines modification that applied to Dunn. When Dillon
moved to reduce his prison term pursuant to § 3582(c)(2), he
also asked the court to grant him a variance below the new
sentencing range and to correct various mistakes in his
original sentence. Id. at 2687. The Court held that these
matters fell outside the ambit of § 3582(c)(2), explaining that
the statute’s “text, together with its narrow scope, shows that
imprisonment and the guideline range has subsequently been
lowered by the Commission.” United States v. Lawrence, 535 F.3d
631, 638 (7th Cir. 2008). This case falls squarely within that
jurisdictional grant. Thus, “the court had the ability to issue a
binding decree on the defendant[]; it just (arguably) erred in
applying the proper remedy.” Id.
5
Congress intended to authorize only a limited adjustment to
an otherwise final sentence and not a plenary resentencing
proceeding.” Id. at 2691. Because the requested variance and
the alleged sentencing errors “were not affected by the
[Guidelines amendment], they [were] outside the scope of the
proceeding authorized by § 3582(c)(2), and the District Court
properly declined to address them.” Id. at 2694.
Dunn seeks to avoid the force of Dillon by seizing upon
the Supreme Court’s use of the word “impose” in connection
with a sentence reduction. See id. at 2691-92 (“Only if the
sentencing court originally imposed a term of imprisonment
below the Guidelines range does § 1B1.10 authorize a court
proceeding under § 3582(c)(2) to impose a term ‘comparably’
below the amended range.”). As Dunn acknowledges, Dillon
also stated that “a district court proceeding under § 3582(c)(2)
does not impose a new sentence in the usual sense.” Id. at
2691. But he reads this to mean that “while a § 3582
proceeding is not the same as an initial sentencing, the end
result is that a sentence is imposed.” Appellant Reply Br. 10.
Dunn contends that because his sentence reduction involved
the “impos[ition]” of a new sentence, the district court had
authority under § 3584(a) to make the sentence “run
concurrently or consecutively” with his other sentence.
We need not parse the Supreme Court’s passing use of
the word “impose” because the Court clearly stated that the
sole remedy permitted under § 3582(c)(2) is “a sentence
reduction within the narrow bounds established by the
Commission.” Dillon, 130 S. Ct. at 2694. In the present case,
the Commission modified the sentencing range for Dunn’s
drug crime, which had nothing to do with the concurrent or
consecutive status of his sentence. For this reason, Dunn’s
effort to link § 3582(c)(2) with § 3584(a) must fail.
6
Dillon accords with our precedent, which has interpreted
§ 3582(c)(2) to provide “a circumscribed opportunity for
district courts to give sentencing relief when the Sentencing
Guidelines are changed.” United States v. Lafayette, 585 F.3d
435, 438 (D.C. Cir. 2009). This “circumscribed opportunity”
is an “exception to the usual finality of sentencing decisions
[and] is triggered only by a Guidelines amendment.” Id. It
does not include changes to “features of earlier sentencing
decisions” not affected by the change in the Sentencing
Guidelines. Id. This is so because “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.” Id. Indeed, if § 3582(c)(2) permitted
sentencing adjustments unrelated to Guidelines modifications,
“every retroactive Guidelines amendment would carry a
significant collateral windfall to all affected prisoners,
reopening every aspect of their original sentences.” Id.
The district court properly concluded that it had no
authority to grant Dunn the windfall he sought in this case.
III
For the foregoing reasons, the district court’s judgment is
Affirmed.