UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6966
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALBERT EUGENE HARDY, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00010-MR-1)
Argued: October 7, 2015 Decided: February 8, 2016
Before TRAXLER, Chief Judge, and KING and THACKER, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion. Chief
Judge Traxler wrote a dissenting opinion.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Albert Eugene Hardy, Jr., appeals from the June 2015 order
entered in the Western District of North Carolina, granting him
a sentence reduction from 168 to 140 months under 18 U.S.C.
§ 3582(c)(2). Hardy contends that the district court erred in
failing to recognize that it could have reduced his sentence to
as low as 98 months. The government counters that the court
simply declined to award Hardy a larger reduction. As explained
below, the record does not reveal that the court appreciated the
scope of its authority, and it also shows that the court
committed legal error. We therefore vacate and remand.
I.
On May 3, 2007, Hardy pleaded guilty to conspiracy to
possess with intent to distribute cocaine base, in contravention
of 21 U.S.C. § 846. Prior to the guilty plea, the United States
Attorney filed a notice, pursuant to 21 U.S.C. § 851, advising
that the government would utilize Hardy’s prior North Carolina
drug conviction to seek a 240-month mandatory minimum sentence,
pursuant to 21 U.S.C. § 841(b)(1)(A).
The probation officer thereafter prepared the presentence
report and recommended that Hardy be sentenced to 240 months.
The PSR reached its mandatory minimum recommendation by starting
with a base offense level of 32, predicated on a drug weight of
3
approximately 370 grams of cocaine base. The offense level was
then adjusted two levels upward for reckless endangerment, less
three levels for acceptance of responsibility, resulting in a
final offense level of 31. Based on the final offense level and
Hardy’s criminal history category of V, the Sentencing
Guidelines advised a sentencing range of 168 to 210 months. The
§ 851 notice, however, triggered the mandatory minimum, making
his Guidelines sentence 240 months. See USSG § 5G1.1(b) (“Where
a statutorily required minimum sentence is greater than the
maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence.”). 1
Prior to the January 30, 2008 sentencing hearing, the
government filed a motion for a downward departure, pursuant to
18 U.S.C. § 3553(e), recognizing therein that Hardy had provided
substantial assistance to the authorities. 2 The district court
1The PSR relied on the 2007 edition of the Sentencing
Guidelines. We otherwise refer to the 2014 edition, the
Guidelines edition applicable to Hardy’s 18 U.S.C. § 3582(c)(2)
motion.
2Pursuant to § 3553(e), a prosecutor’s downward-departure
motion rewards a cooperating defendant by conferring upon the
sentencing court “the authority to impose a sentence below a
level established by statute as a minimum sentence so as to
reflect a defendant’s substantial assistance in the
investigation or prosecution of another person who has committed
an offense.” The sentence must then be imposed “in accordance
with the guidelines and policy statements issued by the
Sentencing Commission.” Id.; see USSG § 5K1.1.
4
granted the government’s substantial-assistance motion and
imposed a sentence of 168 months. The sentence thus fell at the
low end of the otherwise applicable Guidelines range of 168 to
210 months, and it equaled 70% of the 240-month mandatory
minimum.
Seven years later, on April 23, 2015, Hardy filed his
motion in the district court under 18 U.S.C. § 3582(c)(2),
seeking a sentence reduction under Amendment 750 to the
Guidelines. In response, the probation officer filed a
memorandum with the court on April 27, 2015, advising that Hardy
was ineligible for relief under Amendment 750. 3 The probation
officer further advised the court, however, that Hardy was
eligible for a sentence reduction under Amendment 782. 4 More
specifically, the probation officer stated that Hardy’s original
sentence of 168 months was equal to 70% of the 240-month
statutory minimum. The probation officer then calculated
Hardy’s revised Guidelines range as 140 to 175 months. Finally,
3Amendment 750 (effective November 1, 2011) altered the
weight ranges for cocaine base offenses in the Guidelines, but
not enough to impact Hardy’s base offense level. On appeal,
Hardy does not challenge the court’s denial of relief under
Amendment 750.
4Like Amendment 750, Amendment 782 (effective November 1,
2014) changed the applicable weight ranges for cocaine base
offenses in the Guidelines. Unlike Amendment 750, however,
Amendment 782 had the effect of lowering Hardy’s base offense
level.
5
pursuant to the applicable Guidelines policy statement, the
probation officer recommended a comparable reduction to 98
months. See USSG § 1B1.10(b)(2)(B). The recommended 98 months
was 70% of 140 months, or 70% of the low end of Hardy’s revised
Guidelines range. See id. § 1B1.10(c) cmt. n.4(B).
On June 1, 2015, the government agreed that Hardy was
eligible for a sentence reduction under Amendment 782, and also
acknowledged that the district court could lower his sentence to
the 98 months recommended by the probation officer. Moreover,
the government expressly consented to such a reduction. Hardy
responded the very next day, requesting that the court award him
the unopposed sentence reduction to 98 months.
By its one-page order (AO Form 247) of June 17, 2015, the
district court granted Hardy’s § 3582(c)(2) motion in part,
reducing his sentence to 140, rather than 98 months. See United
States v. Hardy, No. 1:07-cr-00010 (W.D.N.C. June 17, 2015), ECF
No. 72 (the “Order”). In so ruling, the court explained that
Hardy’s “Original Guideline Range” was 240 months, and that his
“Amended Guideline Range” was also 240 months. From the list of
checkbox options contained in the Order, the court selected the
option specifying that the reduced sentence was based on
Amendment 782. The court left blank an option that reads, “The
reduced sentence is within the amended guideline range.” It
also did not mark another option that reads, “The previous term
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of imprisonment imposed was less than the guideline range
applicable to the defendant at the time of sentencing and the
reduced sentence is comparably less than the amended guideline
range.” Finally, the court checked the box designated “Other,”
and explained:
Defendant’s [original] sentence was enhanced pursuant
to a § 851 notice. His cooperation was recognized
b[y] allowing him a reduction to a sentence at the low
end of the Guideline Range without consideration of
the § 851 notice. Defendant’s reduced sentence herein
is likewise at the low end of the revised Guideline
Range after Amendment 782, without consideration of
the § 851 notice.
Hardy has filed a timely notice of appeal of the district
court’s sentence reduction decision. We possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
Absent an abuse of discretion, we will not disturb a
district court’s sentence reduction decision under 18 U.S.C.
§ 3582(c)(2). See United States v. Mann, 709 F.3d 301, 304 (4th
Cir. 2013). A district court abuses its discretion when it
commits an error of law. See United States v. Rybicki, 96 F.3d
754, 757 (4th Cir. 1996). An error of law may include a
district court’s misapprehension of “the scope of its legal
authority under § 3582(c)(2),” an issue that we review de novo.
See Mann, 709 F.3d at 304.
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III.
Hardy contends that the district court erred in failing to
recognize its authority under the Sentencing Commission’s policy
statement and in “calculating the extent of a ‘comparably less’
reduction” below his amended Guidelines range. See Br. of
Appellant 8. Put succinctly, Hardy maintains that the court
failed to appreciate that it was authorized to reduce his
sentence to 98 months (70% of the low end of his amended
Guidelines range). The United States Attorney agrees that the
court was authorized to reduce Hardy’s sentence to 98 months.
The prosecution contends, however, that the court was aware of
that authority and instead “explicitly declined to impose the
shortest prison sentence it could.” See Br. of Appellee 14.
Hardy’s sentence reduction from 168 to 140 months, according to
the government, was neither erroneous nor an abuse of
discretion.
The Supreme Court’s decision in Dillon v. United States
explained the “two-step approach” that a district court must
undertake when resolving a § 3582(c)(2) motion. See 560 U.S.
817, 827 (2010). First, “the court [must] follow the
[Sentencing] Commission’s instructions” in the policy statement
spelled out in Guidelines section 1B1.10 “to determine the
prisoner’s eligibility for a sentence modification and the
extent of the reduction authorized.” Id. (emphasis added).
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Second, the court must “consider any applicable [18 U.S.C.]
§ 3553(a) factors and determine whether, in its discretion, the
reduction authorized by reference to the policies relevant at
step one is warranted in whole or in part under the particular
circumstances of the case.” Id.
Consistent with Dillon, the district court initially
determined that Hardy was eligible for a sentence reduction
under Amendment 782. The court failed, however, to specify the
extent of the permissible reduction authorized by the
Commission’s policy statement in Guidelines section
1B1.10(b)(2)(B). That policy statement authorizes a “[sentence]
reduction comparably less than the amended guideline range” when
the defendant was originally sentenced below a mandatory minimum
based on his substantial assistance to the authorities. See id.
(emphasis added). Because Hardy was originally sentenced to 168
months (70% of 240 months), a “comparably less” sentence under
Amendment 782 would be 98 months, or 70% of the low end of his
amended Guidelines range. See id. § 1B1.10(c) cmt. n.4(B)
(providing for percentage reduction from low end of amended
Guidelines range). Put simply, the court did not complete
Dillon’s first step. The court’s failure to identify the
permissible reduction to 98 months strongly suggests that it did
not appreciate the scope of its authority. See United States v.
Smalls, 720 F.3d 193, 196 (4th Cir. 2013) (observing that
9
“contrary indication[s]” may “rebut the . . . presumption that
the district court considered all relevant factors in ruling on
[a] § 3582(c)(2) motion”).
In pressing the contrary assertion — that the district
court fully understood the scope of its authority — the
government emphasizes two aspects of the form Order. First, it
points to the court’s explanation — accompanying the “Other” box
— that Hardy’s reduced sentence was “likewise at the low end of
the revised Guideline Range after Amendment 782.” Second, the
government contends that the court must have recognized its
authority to impose a lesser sentence because it failed to check
the box indicating that it was granting a “comparably less”
reduction.
There are other aspects of the Order, however, that serve
to undermine the government’s contention. Most importantly, the
Order contains an error of law: it states that Hardy’s
“Original Guideline Range” and “Amended Guideline Range” are
both “240 months” (the mandatory statutory minimum). That
statement runs contrary to the Guidelines’ explicit directive
that “the amended guideline range shall be determined without
regard to” the 240-month mandatory minimum. See USSG
§ 1B1.10(c); see also United States v. Williams, No. 15-7114, __
F.3d __, slip op. at 23 (4th Cir. Dec. 14, 2015) (“Although
Guidelines section 5G1.1(b) would otherwise turn the 240-month
10
mandatory minimum into Williams’s revised ‘guideline sentence,’
the revisions made to Guidelines section 1B1.10 by Amendment 780
bar the sentencing court from calculating his amended range in
that manner.”). In this case, Hardy’s amended Guidelines range
was not 240 months, as the district court stated in the Order,
but was 140 to 175 months, as determined by the probation
officer. 5
In these circumstances, we are not persuaded that the
district court appreciated the scope of its authority under
§ 3582(c)(2). Furthermore, the court committed legal error in
ruling on Hardy’s sentence reduction motion. We are therefore
constrained to vacate the Order and remand.
IV.
Pursuant to the foregoing, we vacate the judgment and
remand for such other and further proceedings as may be
appropriate.
VACATED AND REMANDED
5Prior to the issuance of our Williams decision a few weeks
ago, there would have been a viable contention that the 240-
month mandatory minimum was the correct amended Guidelines range
for a prisoner in Hardy’s position. In Williams, however, we
squarely rejected that proposition.
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TRAXLER, Chief Judge, dissenting:
When the Government and the defendant make clear to the
judge that they agree as to the sentencing options available to
the judge and when the judge chooses a sentence that is
unquestionably within this range of lawful options, I believe we
can presume the judge understood what the lawyers said and I do
not believe we can fault the sentencing judge for not explaining
why he rejected the other choices presented to him.
There is nothing in the record to rebut the presumption
that the district court fully understood the scope of its
sentencing authority when it ruled on Hardy’s motion under 18
U.S.C. § 3582(c)(2). The parties’ written submissions, as well
as the probation officer’s report, advised the court that it had
the authority to reduce Hardy’s sentence to 98 months or less.
The district court’s order reflected that the court understood
the extent to which it was authorized to reduce Hardy’s sentence
but decided that the circumstances in this case merited less
than the maximum reduction. The district court acted well
within its discretion to reduce Hardy’s sentence to 140 months
rather than 98 months. Accordingly, I respectfully dissent.
Where a defendant “has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission,” a district court
“may reduce the term of imprisonment” after considering the
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§ 3553(a) factors and the applicable policy statements from the
Sentencing Commission. See 18 U.S.C. § 3582(c)(2) (emphasis
added). “[T]he decision about whether to reduce a sentence is
discretionary on the part of the district court. The court is
not required to reduce a defendant’s sentence, even where the
current sentence is above the amended guidelines range.” United
States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010). This
court therefore reviews a district court’s decision to grant or
deny a sentence reduction under § 3582(c)(2) for abuse of
discretion. See United States v. Smalls, 720 F.3d 193, 195 (4th
Cir. 2013). A court’s failure to understand the scope of its
authority to reduce a sentence under § 3582(c)(2) amounts to an
abuse of discretion. See United States v. Bernard, 708 F.3d
583, 597 (4th Cir. 2013).
Although the district court granted Hardy’s motion and
reduced his sentence from 168 months to 140 months, Hardy argues
that the district court failed to understand that it could
reduce his sentence even further to 98 months. To properly
consider Hardy’s position, the correct place to start is with
the presumption that the district judge correctly understood his
sentencing authority and properly considered the § 3553(c)
factors and applicable policy statements as required by
§ 3582(c)(2). See Smalls, 720 F.3d at 195-96. “[A]bsent a
contrary indication, we presume a district court deciding a
13
§ 3582(c)(2) motion has considered the 18 U.S.C. § 3553(a)
factors and other pertinent matters before it.” Id. (internal
quotation marks omitted). There is nothing in the record that,
in my view, overcomes the presumption that the district court
properly understood and considered the extent of his authority
to reduce Hardy’s sentence.
Section 1B1.10(b)(1) of the Sentencing Guidelines directs
the district court when considering a sentence reduction to
“determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) . . . had been
in effect at the time the defendant was sentenced.” The
Sentencing Guidelines generally prohibit a court from reducing
the defendant’s term of imprisonment under § 3582(c)(2) “to a
term that is less than the minimum of the amended guideline
range.” U.S.S.G. § 1B1.10(b)(2)(A). If, however, a defendant’s
original sentence was below the guideline range based on a
substantial assistance departure under § 3553(e), then “a
reduction comparably less than the amended guideline range . . .
may be appropriate.” Id. at § 1B1.10(b)(2)(B) (emphasis added).
In this case, Hardy’s original sentencing range would have
been 168-210 months but for the fact that he was subject to a
240-month mandatory minimum sentence. Nevertheless, in light of
the mandatory minimum, Hardy’s guideline sentence was 240
months. See U.S.S.G. § 5G1.1(b) (“Where a statutorily required
14
minimum sentence is greater than the maximum of the applicable
guideline range, the statutorily required minimum sentence shall
be the guideline sentence.”). Thus, U.S.S.G. § 1B1.10(b)(2)(B)
applies in this case. Hardy’s original sentence was below the
guideline range “pursuant to a government motion to reflect
[Hardy’s] substantial assistance to authorities,” meaning that
the district court could, but was not required to, grant under
§ 3582(c)(2) “a reduction comparably less than the amended
guideline range” of 140-175 months.
U.S.S.G. § 1B1.10(c) makes clear that in a case such as
this one, where the defendant is subject to a statutory minimum,
the amended range is determined “without regard to the operation
of § 5G1.1.” U.S.S.G. § 1B1.10(c). That is, the court must
disregard the fact that the defendant was subject to a mandatory
minimum when determining “the amended guideline range that would
have been applicable to the defendant if the amendment(s) . . .
had been in effect at the time the defendant was sentenced.”
U.S.S.G. § 1B1.10(b)(1).
The parties agree that in reducing Hardy’s sentence under
§ 3582(c)(2), the district court, had it so desired, could have
gone as low as 98 months because the original 168-month sentence
was 30% below the guideline range of 240 months—the guideline
range being equal to the mandatory minimum under § 5G1.1. A
“comparable” 30% reduction from the bottom of the amended range
15
of 140 months would have resulted in a sentence of 98 months,
assuming the district court in its discretion found such a
reduction to be appropriate. This point was the subject of the
memoranda submitted to the court by the parties. The district
court, however, granted Hardy a downward departure under
§ 3553(e) and sentenced him to 168 months, the bottom of the
otherwise applicable sentencing range.
There is nothing in the district court’s ruling to overcome
the presumption that the court understood how to properly apply
U.S.S.G. § 1B1.10(b) & (c), that the amended guideline range was
140-175 months, and that it could reduce Hardy’s sentence below
the amended range to 98 months. The court was fully briefed by
the parties and the probation officer regarding the option of
reducing Hardy’s sentence to 98 months. The district court’s
order reflected its clear understanding of the amended guideline
range as determined by application of § 1B1.10(c): “Defendant’s
reduced sentence [of 140 months] . . . is likewise at the low
end of the revised Guideline Range after Amendment 782, without
consideration of the § 851 notice.” J.A. 89. And, since the
district court clearly understood that the 140-month sentence
that it was imposing was at the bottom of the amended range, the
court understood it was not imposing a “reduced sentence . . .
comparably less than the amended guideline range” because it did
not select that checkbox option.
16
The fact that the one-page form order does not explicitly
state that “the court is aware that a 98-month sentence is
permissible” does not persuade me that the district court was
ignorant of this point on which it had just been briefed. “[I]n
the absence of evidence a court neglected to consider relevant
factors, the court does not err in failing to provide a full
explanation for its § 3582(c)(2) decision.” Smalls, 720 F.3d at
196. The district court chose to go to the bottom of the
amended range, but not below it. There is nothing to suggest
that this was not a conscious and intentional choice or that we
ought to abandon the presumption that the district court was
aware of and considered all of the sentencing options available
to it.
17