United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3404
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Robert Q. Woods, *
*
Appellant. *
___________
Submitted: June 13, 2011
Filed: June 20, 2011
___________
Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.
___________
RILEY, Chief Judge.
Robert Q. Woods pled guilty to two counts of distributing, and one count of
manufacturing, a mixture or substance containing cocaine base (crack cocaine), in
violation of 21 U.S.C. § 841(a)(1) and (b)(1). The district court1 sentenced Woods to
concurrent 121-month terms of imprisonment. Woods appeals, arguing the district
court erred in (1) denying his motion to continue his sentencing until after the United
States Sentencing Guidelines (U.S.S.G. or Guidelines) were amended to conform to
the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3,
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
2010), (2) failing to sentence him in accordance with the FSA or, alternatively, to vary
downward based on the FSA, and (3) improperly considering the factors set forth in
18 U.S.C. § 3553(a). We affirm.
I. BACKGROUND
On November 10, 2009, a grand jury returned an indictment charging Woods
with four counts of violating 21 U.S.C. § 841(a)(1), each punishable under
§ 841(b)(1). Count I charged Woods with distributing a mixture or substance
containing crack cocaine on or about August 19, 2009. Counts II, III, and IV charged
Woods with distributing, manufacturing, and possessing with intent to distribute,
respectively, five grams of a mixture or substance containing crack cocaine on or
about August 25, 2009.
On April 19, 2010, Woods pled guilty to Counts I, II, and III pursuant to a
written plea agreement. The government later moved to dismiss Count IV and
requested leave to withdraw its Information and Notice of Enhanced Sentence filed
pursuant to 21 U.S.C. § 851.2 At the close of the plea hearing, the district court set
Woods’s sentencing for July 20, 2010 (later reset to July 19, 2010), and ordered a
presentence investigation report (PSR). The PSR indicated Woods was responsible
for at least 172.87 grams of crack cocaine. Based on the 2009 edition of the
Guidelines, the PSR calculated Woods’s advisory Guidelines range at 135 to 168
months (level 30, category IV).
On July 16, 2010, Woods moved to continue the July 19, 2010 sentencing
hearing “to afford counsel the reasonable time necessary to complete his investigation
and prepare his defense.” The district court granted Woods’s motion and reset the
2
The notice had advised Woods he was subject to a mandatory minimum 120
months imprisonment for Counts II, III, and IV based on a 2004 federal drug
conviction. See § 841(b)(1)(B).
-2-
hearing for September 1, 2010. On August 26, 2010, Woods again moved to continue
the hearing, this time from September 1, 2010 “until after November 3 in order that
he might receive the benefit of any amendments to the [Guidelines] and any other
sentencing provisions impacted by [the FSA].” The district court reset Woods’s
sentencing for October 19, 2010.
The FSA, which became effective August 3, 2010, increased the threshold
quantities of crack cocaine necessary to trigger the five-year mandatory minimum for
possession and the ten-year mandatory minimum for distribution from 50 grams to 280
grams under 21 U.S.C. § 841(b)(1). See FSA § 2. The FSA directed the United States
Sentencing Commission to promulgate conforming Guidelines and amendments “as
soon as practicable, and in any event not later than [November 1, 2010].” Id. § 8. As
directed, on October 15, 2010, the commission promulgated a “temporary, emergency
amendment to” the Guidelines for crack-cocaine offenses, including U.S.S.G. § 2D1.1,
which applies to unlawful manufacturing and trafficking of crack. The amendments
to § 2D1.1(c)’s drug-quantity table reduced the base offense levels for certain
quantities of crack cocaine. The amendments were not effective until November 1,
2010.
At the beginning of his sentencing hearing on October 19, 2010, Woods
withdrew his objections to the PSR. Woods acknowledged “the [G]uidelines that are
currently in effect are stated accurately in the [PSR],” but stressed the advisory nature
of the Guidelines and requested the district court “apply the benefit of the [FSA] to
Mr. Woods’s case” “to eliminate this disparity between powder and crack cocaine.”
Extolling Woods’s intelligence and the “positive changes in [his] life,” Woods’s
counsel claimed “all factors indicate that [he] is the ideal candidate for a downward
variance.”
In response, the government focused on Woods’s extensive criminal history,
starting in 2002 with resisting arrest and assaulting an officer, and challenged Woods’s
-3-
claims of positive change with details of ongoing drug use. Because Woods withdrew
his objections to the PSR, the government recommended an additional adjustment for
acceptance of responsibility, which reduced Woods’s offense level to 29 and resulted
in an advisory Guidelines range of 121 to 151 months. The government argued in
favor of a sentence at the high end of the range. The government advised the district
court that, despite Woods’s prior felony drug conviction, the government would
withdraw its notice of enhanced sentence because Woods’s advisory Guidelines range
exceeded the mandatory minimum. The government maintained the 120-month
mandatory minimum “reflect[ed] the type of sentence that Congress believes should
be imposed.”
The district court then questioned the probation officer about the potential effect
of the FSA on Woods’s Guidelines range. Highlighting the uncertainty still
surrounding the FSA and the conforming Guidelines amendments, the officer
explained the commission had published two alternative amended tables for crack
cocaine. The officer attempted to calculate Woods’s hypothetical range under each
table, but miscalculated. The officer incorrectly advised the district court Woods’s
range would be either 70 to 87 months or 100 to 125 months. “Splitting the
difference,” the officer stated “[Woods] ends up with a guideline provision range of
84 to 105 months.”
Woods’s actual Guidelines ranges under the alternative proposed tables were
70 to 87 and 84 to 105 months. Under the amended version of U.S.S.G. § 2D1.1,
effective November 1, 2010, Woods would have had an advisory range of 84 to 105
months (level 25, category IV).
After considering the parties’ arguments and the provisions of 18 U.S.C.
§ 3553(a), the district court imposed concurrent sentences of 121 months
imprisonment for each of Counts I, II and III. Woods appeals.
-4-
II. DISCUSSION
A. Motion to Continue
Woods contends the district court abused its discretion in denying his request
for a continuance until after November 3, 2010, to allow him the benefit of the FSA
and the Guidelines amendments. “We will reverse a district court’s decision to deny
a motion for continuance only if the court abused its discretion and the moving party
was prejudiced by the denial.” United States v. Howard, 540 F.3d 905, 907 (8th Cir.
2008) (quoting United States v. Hyles, 479 F.3d 958, 967 (8th Cir. 2007)).
“Continuances are generally disfavored and are not granted without a compelling
reason.” Id.
We have held the FSA is not retroactive. See United States v. Smith, 632 F.3d
1043, 1047-49 (8th Cir. 2011) (concluding “the general savings statute, 1 U.S.C.
§ 109, requires us to apply the penalties in place at the time the crime was committed”)
(quoting United States v. Brewer, 624 F.3d 900, 909-10 n.7 (8th Cir. 2010) (internal
quotation marks omitted)); United States v. McBride, No. 10-2689, 2011 WL
2206725, at *2 (8th Cir. June 8, 2011) (unpub. per curiam). But even if we assume
Woods can show prejudice, Woods fails to provide any support for his contention the
district court abused its discretion in denying his motion. See id. at *3 (holding the
district court did not abuse its discretion in denying a second continuance until
Congress acted on the FSA, and, assuming error, no prejudice exists because the FSA
is not retroactive); United States v. Hawthorne, No. 10-1653, 2011 WL 1237618, at
*1 (8th Cir. Apr. 5, 2011) (unpub. per curiam) (explaining the district court did not
abuse its discretion in denying the defendant’s third motion for continuance “until the
[FSA] became law” despite the defendant’s hope the FSA would lead to a lower
sentence).
In essence, Woods argues a district court abuses its discretion unless it suspends
all sentencing upon the enactment of potentially favorable legislation or Guidelines
amendments until the changes are fully effective and all the details become known.
-5-
Woods’s contention is untenable. Woods may believe he had good reason to delay,
but his desire to postpone his sentencing further does not compel the district court to
grant his request. Woods committed his crimes in August 2009 and pled guilty in
April 2010. At Woods’s request, the district court granted continuances totaling three
months. It was within the district court’s discretion to deny Woods’s request to delay
imposing his sentence any further.
B. Downward Variance
Woods next argues the district court (1) relied on “incorrect or inaccurate”
statements from the government and the probation office regarding the FSA and the
prospective amendments to the Guidelines, and (2) abused its discretion in denying
Woods’s request for a downward variance based on those statements. The government
admits some inaccuracies and contests others, but then asserts none of the
misstatements, made without any objection from Woods, constitute plain error. We
agree.
To show plain error, [Woods] must establish (1) there is an error; (2) the
error is clear or obvious, rather than subject to reasonable dispute; (3) the
error affected [Woods’s] substantial rights, which in the ordinary case
means it affected the outcome of the district court proceedings; and
(4) the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.
United States v. Vanover, 630 F.3d 1108, 1119 (8th Cir. 2011) (per curiam) (quoting
United States v. Marcus, 560 U.S. ___, ___, 130 S. Ct. 2159, 2164 (2010) (internal
marks omitted and formatting altered)). Having reviewed the record, we conclude
none of the challenged statements materially influenced the district court’s denial of
Woods’s request for a downward variance or otherwise affected Woods’s substantial
rights. The information presented to the district court through the PSR, hearing
testimony, and arguments sufficiently apprised the district court of the effect of the
FSA and the impending Guidelines amendments.
-6-
A district court has discretion to vary from the Guidelines based on the disparity
between crack and powder cocaine sentences, but the district court does not “act[]
unreasonably, abuse[] its discretion, or otherwise commit[] error if it does not.”
United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008) (explaining Kimbrough
v. United States, 552 U.S. 85, 91, 96-99 (2007)). The enactment of the FSA did not
remove that discretion. See United States v. Payton, 636 F.3d 1027, 1049 (8th Cir.
2011) (concluding the district court’s refusal to vary downward “based on the
crack/powder disparity” after enactment of the FSA “was well within its discretion”)
(quoting Brewer, 624 F.3d at 909). The district court did not abuse its broad
sentencing discretion in rejecting Wood’s request to vary downward.3
C. Section 3553(a)
Woods asserts the district court did not properly consider the 18 U.S.C.
§ 3553(a) factors and failed to articulate a reasoned basis for his sentence. “[Woods]
did not object at sentencing to the adequacy of the district court’s explanation or
consideration of § 3553(a), so we review his objection on appeal for plain error.”
United States v. Gray, 533 F.3d 942, 945 (8th Cir. 2008). “To properly analyze the
relevant sentencing factors, a district court . . . must set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” United States v. Robinson,
516 F.3d 716, 718 (8th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 356
(2007) (internal marks omitted)).
We are satisfied on this record that the district court duly considered the
18 U.S.C. § 3553(a) sentencing factors and the parties’ respective arguments before
sentencing Woods at the bottom of his advisory Guidelines range. The district court’s
3
To the extent Woods challenges the substantive reasonableness of his
sentence, he falls short of overcoming the presumption of reasonableness we afford
his Guidelines sentence. See United States v. Moore, 565 F.3d 435, 437-38 (8th Cir.
2009).
-7-
detailed rejection of Woods’s crack/powder sentencing disparity argument and its
thorough discussion of the other sentencing factors adequately explained Woods’s
Guidelines sentence.
III. CONCLUSION
We affirm.
______________________________
-8-