RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0142p.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. 09-2468
v.
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Defendant-Appellant. -
JASON RICHARD HOWARD,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 03-80899-001—Robert H. Cleland, District Judge.
Decided and Filed: May 24, 2011
Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
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COUNSEL
ON BRIEF: Patricia A. Streeter, Ann Arbor, Michigan, for Appellant. Patricia
Gaedeke, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee.
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OPINION
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GRIFFIN, Circuit Judge. Defendant Jason Howard appeals the district court’s
post-judgment order reducing his sentence pursuant to 18 U.S.C. § 3582(c)(2) after he
pleaded guilty to possessing crack cocaine in violation of 21 U.S.C. § 844. We order a
limited remand for the sole purpose of providing a statement of reasons for the district
court’s decision.
1
No. 09-2468 United States v. Howard Page 2
I.
This is an appeal from an order granting defendant’s motion to reduce his crack
cocaine sentence pursuant to 18 U.S.C. § 3582(c)(2). Jason Howard pleaded guilty in
2004 to possession of crack cocaine. His original Guideline range, based on possession
of 7.5 grams of cocaine base, was 60-71 months, with the bottom of the range restricted
by the mandatory minimum sentence applicable for 5 grams or more of crack cocaine.
Howard failed to appear for sentencing and avoided arrest for over seven months. As
a result, his Guideline offense level was increased by two levels for obstruction of justice
and his three-point reduction for acceptance of responsibility was denied. His final
Guideline range was therefore 97-121 months. The district court imposed a sentence of
97 months.
Howard appealed the sentence, but this court affirmed. Howard also filed a pro
se motion asking the district court to appoint counsel “for the 2 point crack reduction.”
The district court appointed counsel, and the parties stipulated that Howard met the
criteria for a sentence reduction under the retroactive amendments to the sentencing
Guidelines for crack cocaine; that the court had the discretion to reduce Howard’s
sentence under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10; and that Howard’s new
sentencing Guideline range was 78-97 months. The stipulation also concluded with the
statement that: “[a]ccordingly, [the district court] has the discretion to reduce Howard’s
sentence to any point within the new range of 78-97 months.”
A probation officer thereafter submitted a supplemental report pursuant to
§ 1B1.10 agreeing with the parties’ recalculation of Howard’s Guideline range as
modified by the retroactive reduction in the crack cocaine base offense level. The report
also described Howard’s adjustment to incarceration as “fair,” indicating that he had
received “average” work evaluations and had been given three “incident reports,” two
for refusing to obey an order and one for fighting. Howard’s attorney also filed a
sentencing memorandum pointing out that, although Howard had these three prison
misconduct citations during his incarceration, he had not been disciplined in the past two
No. 09-2468 United States v. Howard Page 3
years. The memorandum further detailed the classes that Howard had taken while he
was incarcerated and described his pre-release planning.
Howard asked the district court to reduce his sentence to the lowest point in the
new Guideline range, i.e., 78 months. He did not ask for a hearing on the matter, or
contend that the court should treat crack on a one-to-one basis with powder cocaine, or
request that the court reduce his sentence below the stipulated Guideline range. The
district court delayed ruling on the motion, noting that it had other cases with earlier
deadlines, and that, by delaying, it could also consider Howard’s future conduct.
Howard did not object to the delay. Eventually, a probation officer submitted an updated
report showing that Howard did not have any further infractions from the Bureau of
Prisons. The district court subsequently issued an order granting Howard’s motion and
reducing his sentence to 88 months.
Howard timely appeals.
II.
A district court may modify a defendant’s sentence only as authorized by statute.
United States v. Johnson, 564 F.3d 419, 421 (6th Cir. 2009). Under § 3582(c)(2), a
district court may modify a term of imprisonment:
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). There are two parts to the district court’s inquiry. United States
v. Watkins, 625 F.3d 277, 280 (6th Cir. 2010) (citing Dillon v. United States, — U.S. —,
130 S. Ct. 2683, 2691 (2010)). First, the court must determine whether the defendant is
eligible for a sentence reduction. Id. Second, the court must consider the § 3553(a)
factors and determine whether, in its discretion, the authorized reduction is warranted
under the circumstances. Id. (citing Dillon, 130 S. Ct. at 2692).
No. 09-2468 United States v. Howard Page 4
We have jurisdiction under 18 U.S.C. § 3742 to review the outcome of a
sentence-reduction proceeding only where the claim is that the resulting sentence
“(1) was imposed in violation of law; (2) was imposed as a result of an incorrect
application of the sentencing guidelines; (3) is greater than the sentence specified in the
applicable guideline range; or (4) was imposed for an offense for which there is no
guideline and is plainly unreasonable.” United States v. Bowers, 615 F.3d 715, 723 (6th
Cir. 2010) (citation omitted). A district court’s determination as to whether a sentence
reduction is warranted is reviewed for an abuse of discretion. United States v.
Washington, 584 F.3d 693, 695 (6th Cir. 2009). A district court abuses its discretion
when it “relies on clearly erroneous findings of fact, improperly applies the law, or uses
an erroneous legal standard.” United States v. Munoz, 605 F.3d 359, 366 (6th Cir. 2010)
(citation and internal quotation marks omitted).
III.
Howard argues that the district court abused its discretion by resentencing him
under 18 U.S.C. § 3582(c) “without a hearing” and by “issuing a form order without any
explanation for its ruling.” He also claims that the district court abused its discretion by
resentencing him “without applying or considering the application of a one-to-one ratio
for crack to powder cocaine” in contravention of United States v. Booker, 543 U.S. 220
(2005). We address these arguments in turn.
A.
Howard first contends that the district court abused its discretion and imposed
a sentence in violation of law by reducing his sentence under 18 U.S.C. § 3582(c)
without a hearing. The argument is that “[b]y sentencing [him] differently from the first
sentence and not providing him the full benefit of the two-point reduction, i.e., an
amended sentence at the lowest end of the guidelines range, [Howard] was entitled to a
hearing and the right to allocution.” Howard, however, points to no authority for this
proposition. He merely recites the general rule that a sentencing court must “address the
defendant personally in order to permit the defendant to speak or present any information
to mitigate the sentence,” Fed. R. Crim. P. 32(i)(4)(A)(ii), and he directs us to several
No. 09-2468 United States v. Howard Page 5
of our cases acknowledging that in an original sentencing proceeding “[d]enial of
allocution is reversible error.” See United States v. Carter, 355 F.3d 920, 926 (6th Cir.
2004); United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir. 1996), abrogated on
other grounds by Muscarello v. United States, 524 U.S. 125, 138 (1998); United States
v. Pelaez, 930 F.2d 520, 522-24 (6th Cir. 1991); United States v. Johnson, 340 F. App’x
309, 310-11 (6th Cir. 2009). We find this unpersuasive.
Sentence reductions under 18 U.S.C. § 3582(c) are not full sentencing
proceedings. Most notably, Fed. R. Crim. P. 43(b)(4), unlike Fed. R. Crim. P.
32(i)(4)(A)(ii), does not provide a right of allocution; on the contrary, it states that “[a]
defendant need not be present . . . [where] [t]he proceeding involves the . . . reduction
of sentence under . . . 18 U.S.C. § 3582(c).” Because Howard had no right to be present
at a hearing, and because Howard did not even request a hearing, we conclude that the
district court did not abuse its discretion in failing to hold a hearing. Cf. United States
v. Dewitt, 385 F. App’x 479, 481 (6th Cir. 2010) (rejecting identical argument because
“DeWitt’s motion for reduction of sentence did not request a hearing, nothing in
§ 3582(c)(2) . . . requires a hearing, and Fed. R. Crim. P. 43(b)(4) provides that ‘[a]
defendant need not be present’” at such a proceeding); United States v. Franks, 31 F.
App’x 833, 2002 WL 180372, at *1 (5th Cir. 2002) (“Because the district court merely
modified [the defendant’s] existing sentence, under . . . 18 U.S.C. § 3582(c)(1), [he] was
not entitled to be present and to allocute”) (citations omitted); Anderson v. United States,
241 F. App’x 625, 629 (11th Cir. 2007) (rejecting allocution argument because under
“[Rule] 43(b)(4), a defendant’s presence at a § 3582(c) sentence correction proceeding
is not required”).
B.
Howard next argues that the district court abused its discretion and imposed a
sentence in violation of law by issuing an order pursuant to 18 U.S.C. § 3582(c) without
adequately explaining its ruling. In support of this claim, he relies on United States v.
Marion, 590 F.3d 475 (7th Cir. 2009), where the Seventh Circuit concluded that
“[a]lthough ruling on a motion to reduce is not the same as imposing a sentence, we
No. 09-2468 United States v. Howard Page 6
think that the reasoning behind requiring a brief statement of reasons at sentencing
compels a similar requirement when deciding a motion to reduce.” Id. at 477. The court
cautioned that its opinion “should not be read to expand what is required of a district
court when sentencing a defendant or considering a motion to reduce a sentence under
§ 3582(c)(2),” but it explained that “[s]ome statement of the district court’s reasoning
is necessary for this court to be able to meaningfully review its decision.” Id. The court
went on to clarify that “[t]he problem with the order here is not that the district court
used a form order, or even that the order contained only a one-sentence explanation”;
instead, “[t]he problem arises from the fact that it is impossible for us to ensure that the
district court did not abuse its discretion if the order shows only that the district court
exercised its discretion rather than showing how it exercised that discretion.” Id. at 477-
78. Thus, it held that “[s]ome minimal explanation is required.” Id. at 478.
The government counters that “the Seventh Circuit in Marion did not have a
record where the parties stipulated that the district court had the discretion to reduce the
defendant’s sentence to a point anywhere within the new guideline range” and argues
that “having [so] stipulated . . . [Howard] should not be heard to complain . . . .” It also
asserts that Marion is erroneous because “[n]o other appellate court, to our knowledge,
has required a district court to provide an explanation for its decision on a section
3582(c)(2) motion.” We disagree on both counts. Contrary to the government’s
contention, the statement in the parties’ stipulation that “[a]ccordingly, [the district
court] has the discretion to reduce Howard’s sentence to any point within the new range
of 78-97 months” merely acknowledged that the district court had authority to impose
a sentence within the new Guideline’s range; it was not a waiver by Howard, and could
not in any event absolve the district court of its duty to exercise its discretion. Further,
the government’s characterization of the position of the Courts of Appeals is inaccurate.
The Seventh Circuit is not unique in holding that district courts must provide some
explanation for decisions under § 3582(c)(2). See, e.g., United States v. Curry, 606 F.3d
323, 330-31 (6th Cir. 2010); United States v. Archer, 362 F. App’x 491, 495-96 (6th Cir.
2010) (“[T]he court’s burden to explain its execution of this requirement is not heavy.
. . . [it] must satisfy the appellate court that [it] has considered the parties’ arguments and
No. 09-2468 United States v. Howard Page 7
has a reasoned basis for exercising [its] own legal decision-making authority”) (internal
quotation marks and brackets omitted).
The question in this case is whether the district court’s order met this minimal
requirement. In answering that question, a review of our case law is instructive. In
Curry, we held that even though “the district court’s order denying Curry’s motion to
resentence was cursory at best,” the district court did not abuse its discretion because
“the record had been amply developed before the resentencing[,] . . . . [the district court]
had already considered the relevant factors in some depth at the original sentencing and
the first resentencing[,] . . . . [and] indicated [it] had reviewed the entire record, including
the parties’ recommendations, and had considered all the relevant § 3553(a) factors and
the Sentencing Guidelines in making [its] decision.” Curry, 606 F.3d. at 331. Likewise,
in Archer, we concluded that the district court did not abuse its discretion because it
“listed several of the [3553(a)] factors that it explicitly deemed ‘relevant’ to Defendant’s
request,” “later recited the evidence used in the original sentencing decision to support
the finding that Archer had endangered the lives of others,” and “stated that the original
sentence is justified ‘considering the § 3553 factors such as whether the sentence
provides just punishment for the offense, whether the sentence is an adequate deterrence
to criminal conduct, and whether the sentence will protect the public from further crimes
of defendant.’” Archer, 362 F. App’x at 496 (footnote omitted).
In accord are United States v. Holland, 391 F. App’x 468 (6th Cir. 2010) and
United States v. Dewitt, 385 F. App’x 479 (6th Cir. 2010). In Holland, the defendant
challenged as insufficient the district court’s denial of his § 3582(c)(2) motion in a
“summary order” that stated that “Holland’s motion was denied ‘for the reasons set forth
in the government’s brief.’” Holland, 391 F. App’x at 470. We affirmed because “[t]he
district court’s order incorporated by reference ‘the reasons stated in the government’s
brief,’ which included Holland’s criminal history, see 18 U.S.C. § 3553(a)(1); his
dangerousness to the public, see id. § 3553(a)(2)(C); and the seriousness of his offense,
see id. § 3553(a)(2)(A).” Id. In Dewitt, we similarly upheld a district court’s ruling on
a § 3582(c)(2) motion where the resentencing order made clear that the district court
No. 09-2468 United States v. Howard Page 8
relied on “the reasoning set forth . . . in [the] Post-Sentencing Addendum to the
Presentence Report, [] the Government’s Response in Opposition . . . , [and] [the]
Court’s review of notes made contemporaneous with the initial and second sentencing”
and explained that “[t]he basis of this Court’s reasoning, in addition to the foregoing, is
its conclusion that this Defendant represents a serious danger to the safety of the
community. . . .” 385 F. App’x at 481 (citation omitted).
The order in this case is materially different. Here, the district court reduced
Howard’s sentence from 97 months to 88 months by checking two boxes on a form: one
next to the statement that “[u]pon a motion of . . . the court under 18 U.S.C. § 3582(c)(2)
for a reduction in the term of imprisonment imposed based on a guideline sentencing
range that has subsequently been lowered and made retroactive by the United States
Sentencing Commission pursuant to 28 U.S.C. § 994(u), and having considered such
motion, and taking into account the sentencing factors set forth in 18 U.S.C. § 3553(a),
to the extent that they are applicable”; and the other next to the statement “IT IS
ORDERED that the motion is . . . GRANTED.” Unlike Archer, Dewitt, and Holland,
where the district courts indicated by name or by substance the particular § 3553(a)
factors that were relevant to their decisions, the district court here neither stated which
of the § 3553(a) factors were applicable nor added any explanation for its decision in the
space provided for “additional comments.” Cf. United States v. Jones, 407 F. App’x 22,
25-26 (6th Cir. 2011) (upholding a district court’s decision where the order identified the
relevant § 3553(a) factors). Moreover, the order in this case is significantly less
informative than the “cursory at best” order upheld in Curry, because that order at least
pointed out that the district court reviewed the relevant facts of the case and made clear
that the court’s decision was based on the same considerations that caused it to impose
the defendant’s original sentence. Curry, 606 F.3d at 331.1
1
The order in Curry stated that the district court:
reviewed the public record in this matter, the original Presentence Report, and the
Sentence Modification Report. After considering the recommendations of interested
parties, and the goals of sentencing under 18 U.S.C. § 3553(a), and consistent with the
Sentencing Commission’s policy Statement, U.S.S.G. 1B1.10, the Court finds, in its
discretion, that no reduction in sentence is warranted on the facts of this case. The
original quantity decision rested on many considerations other than the amount of crack
No. 09-2468 United States v. Howard Page 9
Closer to the present circumstance are the cases we found distinguishable in
Archer, 362 F. App’x at 496-97 (citing United States v. Nelson, 303 F. App’x 641,
645-46 (10th Cir. 2008) (remanding case for reconsideration because court failed to
identify any specific factors that it found relevant in its decision); United States v.
Edwards, No. 97-60326, 1998 WL 546471, at *3 (5th Cir. Aug. 6, 1998) (“This
[decision] by the district court failed to indicate in any way which factors it found
relevant to its decision . . . .”)); cf. also United States v. Burrell, 622 F.3d 961, 964 (8th
Cir. 2010) (remanding “because the record does not allow us to discern how the district
court exercised its discretion . . . [where] [t]he court did not identify any factors that it
considered relevant in deciding to reduce Burrell’s sentence and determining the extent
of that reduction”). Because the order in this case creates the same “problem” identified
in Marion – that is, “it is impossible for us to ensure that the district court did not abuse
its discretion [because] the order shows only that the district court exercised its
discretion rather than showing how it exercised that discretion,” 590 F.3d at 478 – we
conclude that a remand is warranted.
C.
Finally, Howard cites United States v. Booker, 543 U.S. 220 (2005), and asserts
that the district court abused its discretion by resentencing him without “considering the
application of a one-to-one ratio for crack to powder cocaine.” Dillon v. United States,
— U.S. —, 130 S. Ct. 2683, 2691 (2010), which was decided after the briefing in this
case, forecloses this argument. As we explained in United States v. Bowers, 615 F.3d
715 (6th Cir. 2010), “Dillon’s holding that the Booker remedial opinion has no force in
§ 3582(c)(2) proceedings directly compels the conclusion that Booker’s . . .
promulgation of unreasonableness review in lieu of the [Sentencing Reform] Act’s more
circumscribed standard does not appl[y] . . . either.” Id. at 727 (citation and internal
quotation marks omitted). Because “a defendant’s allegation of Booker
cocaine included, and the Court believes the purposes of sentencing are best served by
continuing the existing sentence without reduction.
(Curry, Record on Appeal 54 (5/19/2008 Order)).
No. 09-2468 United States v. Howard Page 10
unreasonableness in a § 3582(c)(2) proceeding does not state a cognizable ‘violation of
law’ that § 3742(a)(1) would authorize us to address on appeal,” id., we lack jurisdiction
to consider Howard’s claim. Cf. United States v. Watkins, 625 F.3d 277, 282 (6th Cir.
2010) (“To the extent that Watkins appeals the denial of the sentence reduction under
section 3582(c)(2) on Booker reasonableness grounds, we lack jurisdiction to entertain
this argument. Thus, we lack jurisdiction to consider Watkins’s argument that the district
court failed to consider disparities that persist between crack and powder cocaine offense
sentencing even after Amendment 706.”) (citations omitted).
IV.
For these reasons, we order a limited remand to the district court with
instructions to provide a statement of reasons, consistent with this opinion, for its
decision to reduce Howard’s sentence from 97 to 88 months’ imprisonment.