Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-16-2009
USA v. Brett Styer
Precedential or Non-Precedential: Precedential
Docket No. 08-2951
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2951
UNITED STATES OF AMERICA
v.
BRETT STYER,
a/k/a FLY,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 02-cr-00570-001)
District Judge: Honorable Legrome D. Davis
Submitted Under Third Circuit LAR 34.1(a)
March 2, 2009
Before: BARRY, WEIS, and ROTH, Circuit Judges
(Opinion Filed: March 25, 2009)
Lawrence Singer, Esq.
Suite 1010
1617 John F. Kennedy Boulevard
One Penn Center
Philadelphia, PA 19103-0000
Counsel for Appellant
Bernadette A. McKeon, Esq.
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadephia, PA 19106-0000
Counsel for Appellee
OPINION OF THE COURT
BARRY, Circuit Judge
Defendant Brett Styer appeals the District Court’s June 6,
2008 order denying his motion pursuant to 18 U.S.C. § 3582(c) for
modification of his sentence in light of the recent retroactive
amendment to the crack cocaine Sentencing Guidelines. See 18
U.S.C. § 3582(c); U.S.S.G. § 1B1.10. We will affirm.
I.
Pursuant to a written plea agreement, Styer pled guilty on
November 20, 2002 to a 13-count Superceding Information
charging him with distribution of more than five grams of cocaine
base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C);
distribution of more than 5 grams of cocaine base within 1,000 feet
of a school zone, in violation of 21 U.S.C. § 860; and possession
of a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1). Styer’s original guideline range was 151-188 months,
based on an offense level of 31 and a criminal history category of
IV. The District Court imposed a within-guidelines sentence of
180 months incarceration on May 5, 2003.
By letter of May 21, 2008, the Federal Community Defender
Office for the Eastern District of Pennsylvania, as part of a
screening committee that also includes members of the United
States Attorney’s Office and the Probation Office, notified the
District Court that Styer was eligible for a retroactive reduction of
his sentence by virtue of the recent amendment to the Sentencing
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Guidelines regarding the applicable range for crack cocaine
offenses. By order of June 6, 2008, the Court concluded that
although Styer was eligible for a reduction, “consideration of the
§ 3553(a) factors and the safety and welfare of the public make
reduction of Styer’s sentence inappropriate.” (App. 50.) Styer then
formally moved for a reduction of sentence, citing, in addition to
the amendment, his commendable conduct post-conviction.1 The
Court again refused to reduce the sentence, referring to its order of
June 6, 2008 and the justifications articulated therein. (A. 74.)
Styer timely appealed that decision.
II.2
Effective November 1, 2007, the United States Sentencing
Commission adopted Amendment 706, which modified the
guideline ranges applicable to crack cocaine offenses and generally
reduced by two the base offense levels for such offenses under §
2D1.1(c). U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007); see United
States v. Wise, 515 F.3d 207, 220 (3rd Cir. 2008). The Sentencing
Commission later declared Amendment 706 to be retroactive.
U.S.S.G. App. C., Amend. 713 (May 1, 2008).
Styer sought a reduction of his sentence in accordance with
Amendment 706 by moving pursuant to 18 U.S.C. § 3582(c)(2),
which provides, in relevant part:
[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
1
Counsel argued that Styer had “completed courses in
impulse control, cooking, public speaking and parenting” and
“prepared a video which was shown to a middle school in Chester
County to help dissuade students from participating in crimes.” (A.
53.) Several letters from schoolchildren that had seen the video
were also submitted, along with Styer’s own letter in which he
acknowledged his criminal past but professed his reformed ways.
2
The District Court had jurisdiction to review Styer’s
motion for modification of his sentence under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291.
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Sentencing Commission pursuant to 28 U.S.C.
994(o), upon motion of the defendant . . . , 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.
The determination as to whether a reduction is warranted—“the
court may reduce” (emphasis added)—is committed to the
discretion of the district court. Accordingly, as our sister circuits
have held, we apply an abuse of discretion standard. See, e.g.,
United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007); United
States v. Rodriguez-Pena, 470 F.3d 431, 432 (1st Cir. 2006);
United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005).
Styer argues: (1) that the District Court denied him due
process in resolving his § 3582(c)(2) motion without a hearing; (2)
that the denial of that motion was predicated, in
part, on an erroneous and unsupported factual conclusion; and (3)
that his unmodified sentence is substantively unreasonable. He
urges us to remand with an instruction that the Court consider a
modified sentence within the amended guideline range of 121-151
months, the same range suggested by the Federal Community
Defender’s Office in its letter to the Court of May 21, 2008. None
of these contentions has merit.
A.
Styer was not entitled to an evidentiary hearing on his §
3582(c)(2) motion. Section 1B1.10(a)(3) clearly states that
“proceedings under 18 U.S.C. § 3582(c)(2) and this policy
statement do not constitute a full resentencing of the defendant.”
U.S.S.G. § 1B1.10(a)(3); see also United States v. Faulks, 201 F.3d
208, 210 (3d Cir. 2000) (distinguishing between a full resentencing
and a proceeding under 18 U.S.C. § 3582(c)(2)). Instead, courts
are constrained to consider only the retroactive amendment at issue
and are instructed to “leave all other guideline application
decisions unaffected.” Id. § 1B1.10(b)(1); see United States v.
McBride, 283 F.3d 612, 615 (3d Cir. 2002). As other Courts of
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Appeals have found, “a proceeding under 18 U.S.C. § 3582(c) is
not a do-over of an original sentencing proceeding where a
defendant is cloaked in rights mandated by statutory law and the
Constitution.” United States v. Tidwell, 178 F.3d 946, 949 (7th Cir.
1999); see United States v. Legree, 205 F.3d 724, 730 (4th Cir.
2000). Indeed, according to Rule 43(b)(4) of the Federal Rules of
Criminal Procedure, a defendant “need not be present” for a §
3582(c)(2) proceeding. Fed. R. Crim. P. 43(b)(4).3
How a court decides to consider a § 3582(c)(2) motion is a
matter of discretion. See Tidwell, 178 F.3d at 949. Here, the
District Court, which had sentenced Styer in the first instance, was
familiar with the facts of the case and in the best position to
determine whether a hearing was warranted. The Court considered
Styer’s factual arguments before concluding that a reduction was
not warranted. Critically, Styer does not identify what information
he would have presented at a hearing that he did not include in the
papers supporting his motion. Accordingly, the Court acted within
its discretion when it determined that a hearing was not necessary.
B.
Next, the District Court did not abuse its discretion by
concluding that Styer continued to pose a threat to public safety.
The record demonstrates that the Court recognized Styer’s
3
While Styer cites several cases in which courts have
ordered factual hearings on § 3582(c) motions, none stands for the
proposition that a court must do so on all such motions.
(Appellant’s Br. 12.) Moreover, Styer’s reliance on United States
v. Byfield, 391 F.3d 277 (D.C. Cir. 2004), is misplaced. While the
D.C. Circuit in Byfield reversed and remanded where the district
court denied without a hearing the defendant’s motion to modify
his sentence under § 3582(c)(2), the factual question in that case
was whether a listed amendment at issue had the effect of lowering
the defendant’s sentence in accordance with § 1B1.10(a)(2)(B). See
id. at 280-81. The question before us is fundamentally different.
Here, there is no dispute that Amendment 706 rendered Styer
eligible for a reduced sentence; the relevant question, however, is
whether a reduction was warranted.
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rehabilitative efforts and, in fact, commended him on his “progress
since incarceration.” (A. 74.) Ultimately, however, the Court
concluded that this single factor did not override the concerns
articulated in its order of June 6, 2008, including the nature of
Styer’s crime, his criminal history, his use of firearms, the need for
deterrence, and public safety.4 While Styer disagrees with the
comparatively little weight the Court accorded his post-conviction
conduct in relation to other factors, we cannot conclude that the
Court’s reasoned balancing of those factors was an abuse of
discretion.
C.
Finally, we consider whether Styer’s unmodified sentence
of 180 months was substantively reasonable, that is, “‘whether the
district judge imposed the sentence he or she did for reasons that
are logical and consistent with the factors set forth in section
3553(a).’” United States v. Cooper, 437 F.3d 324, 330 (3d Cir.
2006) (quoting United States v. Williams, 425 F.3d 478, 481 (7th
Cir.2005)). In proceedings under § 3582(c)(2), the § 3553(a)
factors are supplemented by the directive that the court “consider
the nature and seriousness of the danger to any person or the
community that may be posed by a reduction in the defendant’s
term of imprisonment.” U.S.S.G. § 1B1.10, cmt. n.1(b)(ii). As the
district court is in the best position to determine the appropriate
sentence, we may not reverse simply because we would have
imposed a different sentence. United States v. Wise, 515 F.3d 207,
218 (3d Cir. 2008). Rather, we must ensure that the sentence, even
if beyond the guideline range, is “within the broad range of
possible sentences that can be considered reasonable in light of the
§ 3553(a) factors.” Id.
Styer argues that his sentence was substantively
unreasonable in light of the reduction for which he was eligible per
Amendment 706. We disagree. Taken as a whole, and given the
deferential standard with which we review sentencing
4
We also note that the commentary to § 1B1.10 provides
that courts may consider post-conviction conduct but are under no
obligation to do so. U.S.S.G. § 1B1.10, cmt. n.1(B)(iii).
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determinations, we find that the District Court’s decision to leave
the sentence alone was reached after consideration of the factors
set forth in § 3553(a) and the commentary to § 1B1.10. The Court
stressed that Styer was a danger to the community, that he had shot
five times at a police officer, and that he had endeavored to conceal
firearms from investigators. As the product of evidently careful
weighing and consideration of multiple factors, the Court’s
decision is exactly the type of “reasoned appraisal” to which we
defer on review. Kimbrough v. United States, 128 S.Ct. 558, 576
(2007).
III.
For the reasons set forth above, we will affirm the District
Court’s order denying the request for a modified sentence.
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