United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1155
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United States of America, *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Jermaine Harris, *
* [PUBLISHED]
*
Defendant – Appellant. *
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Submitted: June 8, 2009
Filed: June 12, 2009
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Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
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PER CURIAM.
In 1999 Jermaine Harris was convicted by a jury on charges of distribution and
possession of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(c) & 844,
and was sentenced to 292 months. After the United States Sentencing Commission
made retroactive its amendment to the sentencing guideline for crack cocaine, the
district court1 reduced Harris's sentence to 235 months. Harris appeals, arguing that
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
the district court erred by refusing to appoint counsel to represent him during the
proceedings and by denying his request for a hearing. We affirm.
In 2007 the United States Sentencing Commission revised the guideline for
crack offenders to reduce the base offense level applicable for the quantity of cocaine
base by two levels. U.S.S.G. app. C, amend. 706 (2008). The Sentencing Commission
made that amendment retroactive, which enables defendants who were sentenced
under the previous cocaine base guideline to seek a modification of their sentences
under 18 U.S.C. § 3582(c)(2).
In 2007 the district court notified Harris that his sentence would be reevaluated
based on the amended guideline. Harris moved for appointment of counsel, which the
district court denied. In a preliminary order the district court stated that it would
reduce Harris's sentence to 235 months, which was the low end of the amended
guideline range and the maximum reduction permitted by U.S.S.G. § 1B1.10. The
district court also explained that United States v. Booker, 543 U.S. 220 (2005), did not
apply to proceedings under § 3582(c)(2) so a full resentencing was not appropriate,
but allowed twenty days for the parties to file objections. Harris then renewed his
request for appointment of counsel, requested additional time to prepare objections,
and requested a hearing. The district court entered the final order reducing Harris's
sentence on January 5, 2009 and denied his motions, noting that it lacked discretion
to impose any sentence lower than 235 months.
Harris contends that he had constitutional and statutory rights to the
appointment of counsel for his § 3582(c)(2) proceedings. We review for abuse of
discretion a court's decision regarding appointment of counsel. Williams v. Groose,
979 F.2d 1335, 1337 (8th Cir. 1992) (per curiam). The Supreme Court has held that
the Sixth Amendment right to counsel does not extend beyond the first appeal.
Coleman v. Thompson, 501 U.S. 722, 756 (1991), and we agree with the six circuits
that have held that there is no right to appointed counsel in sentence modification
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proceedings under § 3582(c). See United States v. Young, 555 F.3d 611, 615 (7th Cir.
2009); United States v. Olden, No. 08-5060, 2008 WL 4596336, *3 (10th Cir. Oct. 15,
2008) (unpublished); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000);
United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996); United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462,
465 (2d Cir. 1995); United States v. Evans, 46 F.3d 1135, No. 94-2779, 1995 WL
46553 (8th Cir. 1995) (per curiam) (unpublished) (no abuse of discretion in refusing
to appoint counsel in § 3582(c) proceedings).
Nor does Harris have a right to counsel under the Criminal Justice Act, which
provides that "[a] person for whom counsel is appointed shall be represented at every
stage of the proceedings from his initial appearance . . . through appeal, including
ancillary matters appropriate to the proceedings." 18 U.S.C. § 3006A(c). Proceedings
under § 3582(c)(2) are not ancillary matters for the purposes of § 3006A(c) because
such a motion is potentially far removed in time from the original sentencing and does
not provide "a second opportunity to present mitigating factors to the sentencing
judge, nor is it a challenge to the appropriateness of the original sentence." Whitebird,
55 F.3d at 1010–11; accord Reddick, 53 F.3d at 464–65. We therefore conclude that
the district court did not abuse its discretion in denying Harris's motion for
appointment of counsel. Moreover, we find that Harris was not prejudiced by this
denial, since he received the maximum reduction in his sentence permitted by
U.S.S.G. § 1B1.10.
Harris also argues that the district court erred by denying his request for a
hearing. In United States v. Starks, 551 F.3d 839 (8th Cir. 2009), cert. denied, 2009
WL 1043901 (U.S. June 1, 2009) (No. 08-9839), we held that Booker did not render
advisory the policy statement at U.S.S.G. § 1B1.10, which applies during a §
3582(c)(2) proceeding. That policy statement allows the district court to consider the
sentencing factors at 18 U.S.C. § 3553(a) only "when making the decision whether to
reduce a term of imprisonment as a result of the Sentencing Commission's lowering
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of the range." Id. at 841. Those factors do not allow the district court to impose a
sentence that is less than the minimum of the amended guideline range, so it was not
error for the court to refuse to hold an evidentiary hearing at which the defendant
could present evidence supporting a sentence less than the minimum of the amended
guideline range. Id. at 843. Likewise, because the district court in this case could not
impose a sentence lower than the one stated in its preliminary order, it did not err by
denying Harris's request for a hearing.
The amended judgment is affirmed.
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