United States v. Robert Smith

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2017 Decided July 20, 2018

No. 16-3089

UNITED STATES OF AMERICA,
APPELLEE

v.

ROBERT SMITH,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00051)

Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.

Michael E. McGovern, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Channing
D. Phillips, U.S. Attorney, and Elizabeth Trosman, Chrisellen
R. Kolb, Anthony Scarpelli, and Barry Wiegand, Assistant U.S.
Attorneys.

Before: KAVANAUGH and MILLETT, Circuit Judges, and


Judge Kavanaugh was a member of the panel at the time the
case was argued, but did not participate in this opinion.
 2

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Robert Smith pled guilty under
Federal Rule of Criminal Procedure 11(c)(1)(C) to a criminal
conspiracy and was sentenced to 156 months of imprisonment,
a sentence that fell within the recommended Sentencing
Guidelines range. Later, the United States Sentencing
Commission lowered that range and made its amendment
retroactive. Smith then moved for a corresponding reduction
in his sentence. The district court ruled that a reduced sentence
was both legally unavailable and unwarranted. Because, under
circuit and recent Supreme Court precedent, Smith was eligible
for a sentence reduction, we reverse and remand for the district
court to more fully explain its decision to deny relief.

I

A

The United States Sentencing Guidelines establish a non-
binding framework for determining criminal sentences in
federal prosecutions. As relevant here, at the time of Smith’s
sentencing, Section 2D1.1(c) set the starting point of the
sentencing calculation—the “base level”—at 32 for offenses
like Smith’s that involve at least one but less than three
kilograms of PCP. Factoring in his criminal history and a
downward departure for his guilty plea, Smith faced a
recommended Guidelines range of 140 to 175 months of
imprisonment. Following a plea agreement, the district court
sentenced him to 156 months, the middle of the recommended
Guidelines range and the sentence upon which the parties had
agreed.

Three years later, the Sentencing Commission amended
Section 2D1.1(c) by reducing that particular offense to a base
 3

level of 30, which would carry a recommended sentencing
range of 120 to 150 months of imprisonment. See U.S.S.G.
§ 2D1.1(c) and Supp. to App’x C, Amend. 782 (“Amendment
782”) (Nov. 1, 2014). That Amendment applies retroactively
to already-imposed sentences like Smith’s. Id. at Supp. to
App’x C, Amend. 788, at pp. 86–87; see Hughes v. United
States, 138 S. Ct. 1765, 1774 (2018).

Under federal law, if a defendant’s term of imprisonment
was “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission,” the sentencing court
“may reduce the term of imprisonment[.]” 18 U.S.C.
§ 3582(c)(2). The decision whether to do so must be based on
the sentencing factors set forth in 18 U.S.C. § 3553(a), and any
reduction must be “consistent with applicable policy
statements issued by the Sentencing Commission,” 18 U.S.C.
§ 3582(c)(2).

Section 3553(a), in turn, requires courts to consider a
variety of factors in imposing a sentence or in resentencing,
including:

(1) the nature and circumstances of the offense
and the history and characteristics of the
defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the
offense, to promote respect for the law,
and to provide just punishment for the
offense;
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with
needed educational or vocational
training, medical care, or other
 4

correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing
range established for–
(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the guidelines[;
and]
***
(6) the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of similar
conduct[.]

18 U.S.C. § 3553(a).

B

A grand jury indicted Robert Smith and twelve co-
defendants on several drug charges, including conspiracy to
distribute PCP, heroin, cocaine, and crack cocaine, and
unlawful possession with intent to distribute PCP, all in
violation of 21 U.S.C. § 841(a)(1) and (b)(1). A later
indictment also charged him with violating the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. § 1962(d), for participating in a criminal enterprise to
distribute narcotics, known as the “Pray Drug Organization.”
That RICO count attributed a sweeping breadth of criminal
activity to some of the defendants, such as murder, robbery,
and the distribution and unlawful possession of various drugs.
But Smith was charged only with conspiring to possess with
intent to distribute PCP as part of the Pray Drug Organization.

At a plea hearing, Smith pled guilty to the single RICO
charge. He entered that plea pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), a particular form of plea
 5

agreement under which the government and Smith both agreed
to a recommended sentence of 156 months of imprisonment.
Under the plea agreement, Smith stipulated that he had
possessed with intent to distribute at least one kilogram of PCP.

At his sentencing hearing, Smith generally confirmed his
agreement to the plea. Sentencing Hr’g Tr. 14–15, United
States v. Smith, No. 10-cr-51-09 (D.D.C. Aug. 9, 2011). Before
agreeing to the proposed sentence, however, Smith expressed
concern that the agreement did not guarantee his admission into
a drug rehabilitation program, which would reduce his
sentence if completed successfully. Id. at 7–14. Smith was
worried that, given the RICO charge against him and his
criminal history, he would be deemed a violent offender and,
on that basis, denied admission into the program. Id. at 12.

The district court explained that it was impossible to
guarantee admission into the program because that decision is
made by the Bureau of Prisons, Sentencing Hr’g Tr. 11, and
that “the real problem is not only this RICO charge, although
this doesn’t necessarily have violence in it,” but Smith’s “prior
offenses with weapons charges,” id. at 12. Smith’s lawyer then
stated that the Bureau would see that this conviction and “his
specific proffer of evidence,” unlike that of his co-defendants,
“does not include any reference to Mr. Smith carrying out any
act of violence, doing anything at all that involves violence in
this case.” Id. at 13.

Apparently assured by that exchange that he would remain
eligible for the rehabilitation program, Smith agreed to go
forward with sentencing. Sentencing Hr’g Tr. 14–15. The
district court then sentenced Smith to the agreed-upon 156
months of imprisonment, to be followed by five years of
supervised release. The district court also specifically
recommended to the Bureau of Prisons that Smith be admitted
into the drug rehabilitation program.
 6

In January 2016, Smith filed a pro se letter requesting a
sentence reduction based on the intervening Sentencing
Guideline Amendment 782. He claimed that, under the
amendment to his base offense level, the recommended range
for his crime decreased to 120 to 150 months, and so a
proportionate reduction in his sentence would lower it to 134
months. The government opposed Smith’s motion on the
ground that his sentence was based on the agreed-upon plea
terms, and not the Sentencing Guidelines, and that, in any
event, Smith did not merit such an exercise of discretion.

The district court denied Smith’s motion for a reduced
sentence. The court first ruled that Smith was disqualified from
receiving a sentence reduction as a matter of law because his
sentence turned on the terms of the plea agreement; “the
guideline range was not part of the Court’s calculus in
determining the sentence[.]” Secondly, the court ruled that,
even if Smith were eligible, the court would in its discretion
deny a reduction because Smith conspired with a gang
responsible for murdering a witness while he himself was on
supervised release for unrelated drug and gun charges. The
court added that, in its view, Smith posed a danger to the
community.

II

Because the question of whether a defendant is eligible for
a sentence reduction is a question of law, we review it de novo.
United States v. Epps, 707 F.3d 337, 351 (D.C. Cir. 2013). We
review the district court’s discretionary decision to deny a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) under an
abuse of discretion standard. United States v. Lafayette, 585
F.3d 435, 439 (D.C. Cir. 2009) (quoting Gall v. United States,
552 U.S. 38, 51 (2007)).
 7

A

On the question of Smith’s legal eligibility for sentencing
relief under 18 U.S.C. § 3582(c)(2), both prior circuit
precedent and a recent Supreme Court decision answer that
question in Smith’s favor. In Hughes v. United States, 138 S.
Ct. 1765 (2018), the Supreme Court held that a defendant who
was sentenced under a plea agreement authorized by Federal
Rule of Criminal Procedure 11(c)(1)(C) may seek a sentence
correction if his sentence was “based on” a Sentencing
Guidelines range that was subsequently reduced by the
Sentencing Commission. A sentence will be “based on” a
Guidelines range, for this purpose, “if the range was a basis for
the court’s exercise of discretion in imposing a sentence,” in
that it was a foundation or starting point for the district court’s
sentencing calculation. Hughes, 138 S. Ct. at 1775; see also
United States v. Epps, 707 F.3d at 351-352.

The Supreme Court acknowledged that, under its test,
“there will be no question that the defendant’s Guidelines range
was a basis for his sentence” in “the typical sentencing case.”
Hughes, 138 S. Ct. at 1775. After all, “the Guidelines are ‘the
starting point for every sentencing calculation in the federal
system.’” Id. (quoting Peugh v. United States, 569 U.S. 530,
542 (2013)). And even if a district court varies from the
Guidelines range, the sentence will still be based on the
Guidelines if “the judge uses the sentencing range as the
beginning point to explain the decision to deviate” from it. Id.
A defendant will only be disqualified as a matter of law from
seeking sentencing relief if the later-amended Guidelines range
“play[ed] no relevant part in the judge’s determination of the
defendant’s ultimate sentence.” Koons v. United States¸ 138 S.
Ct. 1783, 1788 (2018) (defendant was sentenced based on
mandatory minimum statutes and credit for substantial
assistance to the government).
 8

A district court’s agreement with a stipulated sentence
proposed in a Rule 11(c)(1)(C) plea agreement, the Supreme
Court emphasized, “is no exception to the general rule that a
defendant’s Guidelines range is both the starting point and a
basis for his ultimate sentence.” Hughes, 138 S. Ct. at 1776.
That is because, whatever the legal source of the plea authority,
the district court’s “first” obligation in imposing a sentence
remains “evaluating the recommended sentence in light of the
defendant’s Guidelines range.” Id.

In short, a defendant’s eligibility for sentencing relief
following a Guidelines amendment depends entirely on
whether the later-amended Guidelines range was “a relevant
part of the analytic framework the judge used to determine the
sentence or to approve the agreement.” Hughes, 138 S. Ct. at
1776 (quotation omitted). It does not “turn on the form of his
plea agreement.” Id.

Under Hughes and Epps, the district court unquestionably
erred in holding that Smith was legally ineligible to seek
sentencing relief. Smith’s case squarely fits the mold of “the
usual case” in which the district court’s acceptance of a Rule
11(c)(1)(C) “agreement and the sentence to be imposed
pursuant to that agreement are ‘based on’ the defendant’s
Guidelines range.” Hughes, 138 S. Ct. at 1770. The sentencing
transcript demonstrates that the later-amended Guidelines
range was the “starting point” for the district court’s sentencing
calculation. Id. The district court began the sentencing hearing
by noting that the stipulated 156-month sentence would be
“right smack about in the middle of” the Guidelines’
recommended range of 140 to 175 months. Sentencing Hr’g
Tr. 4. Next, the district court explained that “[t]he first thing
we do is look at the sentencing guidelines to evaluate the
seriousness of the offense and the criminal history record of the
defendant and those two things are put on a matrix to come up
with a number for the total sentence.” Id. at 15. The court then
continued, “we start with the idea that [the] 11(c)(1)(C) plea is
 9

authorized by the sentencing guidelines.” Id. at 16. The range
the district court considered, moreover, was specifically based
upon the now-amended U.S.S.G. § 2D1.1(c). See App. 129
(explaining that the “U.S. Probation Office calculated Mr.
Smith’s relevant conduct of at least one kilogram of PCP
result[ing] in a base offense level of 32 under U.S.S.G. §
2D1”); see also Hughes, 138 S. Ct. at 1773 (explaining that,
even under a Rule 11(c)(1)(C) plea, the district court must
consider the applicable Guidelines range, and generally does
so after “review[ing] the presentence report”).

The plea agreement itself confirms the role that the now-
amended Guideline played in determining Smith’s sentence.
In the plea, the government agreed “that it will not seek an
upward departure from the otherwise applicable guideline
range established by the Sentencing Guidelines.” App. 83; see
also App. 129 (referencing the U.S. Probation Office’s
Presentence Report that calculated the applicable range under
Section 2D1.1). Smith, for his part, agreed not to “seek a
downward departure for any reason from the otherwise
applicable guideline range established by the Sentencing
Guidelines.” App. 86; see also Hughes, 138 S. Ct. at 1774
(plea agreement was “based on” the applicable Guideline even
though the agreement never specified which one).

All of those factors together demonstrate that the now-
amended Sentencing Guidelines provision, U.S.S.G.
§ 2D1.1(c), and the range it calculated for Smith’s offense
were “a relevant part” of the district court’s “analytic
framework.” Hughes, 138 S. Ct. at 1776 (quoting Freeman v.
United States, 564 U.S. 522, 530 (2011) (plurality opinion));
see Koons, 138 S. Ct. at 1788. Nothing more needed to be
shown to render Smith eligible for resentencing in the wake of
the retroactive amendment to his base-offense level.

The government argues that the district court imposed the
agreed-upon sentence because it was a “wired” plea—part of a
 10

“broader settlement framework” that included three other co-
defendants. That may well have been a factor in the court’s
decision. But Hughes held that the later-amended Guidelines
provision need only be “a” relevant part of the sentencing
calculus. Hughes, 138 S. Ct. 1776 (emphasis added and
internal quotation marks omitted); see also Epps, 707 F.3d at
346 n.5. And Hughes was explicit that eligibility for relief does
not “turn on the form of [a defendant’s] plea agreement.” Id.

The government also trots out on appeal a whole new
theory for rendering Smith ineligible for a sentence reduction:
his calculated Guidelines range was erroneous, and Smith
should have been subjected to a Guidelines enhancement as a
career offender. The career-offender provision, the
government notes, was not amended and thus would not itself
provide a basis for Smith to seek a sentence reduction.

That dog will not hunt. The government admits that it
never raised this issue below. So the argument is forfeited. See
American Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C.
Cir. 2008). Doubly so because the government never
challenged the applicable Guidelines range at the time of the
original sentencing, even though it was fully aware of the
career-offender provision’s potential availability. See App.
100 (government sentencing memorandum notes that the
Probation Office did not calculate Smith’s sentence with regard
to the “application of the Career Offender guideline,” but still
“the government maintains the stipulated sentence in Smith’s
case is appropriate for [] other reasons * * * .”).

Anyhow, Section 3582(c)(2)’s operation is more modest
than the government envisions. It only permits a court to
“‘reduce’ an otherwise final sentence in circumstances
specified by the Commission.” Dillon v. United States, 560
U.S. 817, 825 (2010). It does not trigger a “plenary
resentencing proceeding.” Id. at 826; see Chavez-Meza v.
United States, 138 S. Ct. 1959, 1967 (2018).
 11

In sum, the sentencing record documents that the later-
amended base offense level provision was the starting point
and a relevant factor in the sentence the district court imposed.
Under Hughes, that is enough to open the resentencing door to
Smith.

III

Being legally eligible to seek sentencing relief is one thing.
Persuading a district court to exercise its discretion to grant
such relief is another. In deciding whether to grant a sentence
reduction for which a defendant is legally eligible, a sentencing
court must consider the factors laid out in 18 U.S.C. § 3553(a)
to the extent applicable. Dillon, 560 U.S. at 824–825 (citing
18 U.S.C. § 3582(c)(2)). And in evaluating those Section
3553(a) factors, the court “must make an individualized
assessment based on the facts presented.” Gall, 552 U.S at 50.
In so doing, the district court “must adequately explain the
chosen sentence to allow for meaningful appellate review and
to promote the perception of fair sentencing.” Id. (citations
omitted).1

Here, the only explanation provided by the district court
for denying Smith any sentence reduction at all was that:

While he was on supervised release from prior
convictions on a drug and gun charges, Mr.
Smith conspired with a gang responsible for
murdering a witness. He conceded in this guilty
plea that his own relevant conduct involved

1
Because the government does not argue that, as a matter of law,
a district court may offer less of an explanation at resentencings than
the original imposition of sentence, we assume for purposes of this
decision that the duties are equivalent. See Chavez-Meza, 138 S. Ct.
at 1965.
 12

distribution of at least one kilogram of PCP. Mr.
Smith poses a danger to the community and a
sentence reduction would not be warranted or
appropriate.

United States v. Smith, No. 10-cr-51-09 (D.D.C. July 26,
2016), ECF No. 560 at 6.

That cursory explanation falls short of the task. Federal
law demands that the sentencing decision be individualized and
reflect material differences in defendants’ crimes of conviction
and personal characteristics. See Gall, 552 U.S at 50. By all
indications, that particularized consideration did not happen
here. Quite the opposite. The district court’s decision simply
reduplicated the explanation the court had already given in
denying sentence reductions to Smith’s co-defendants who
were convicted of much more serious and violent crimes,
including acquiring weapons and covering up a murder. App.
50–51.

For example, in denying a sentence modification for co-
defendant Charles Wade, who was convicted of conspiring to
acquire firearms for the Pray Drug Organization, the district
court said:

Mr. Wade conspired with a gang responsible for
murdering a witness, and he conceded that his
own relevant conduct involved distribution of at
least one kilogram of PCP. Mr. Wade poses a
danger to the community and a sentence
reduction would not be appropriate.

United States v. Charles Wade, Crim. No. 10-51-10 (D.D.C.
July 18, 2016), ECF No. 559 at 5-6.

Likewise, for co-defendant Herman Williams, who was
involved in covering up the murder of a witness, the district
 13

court said:

Mr. Williams conspired with a gang responsible
for murdering a witness, and he conceded that
his own relevant conduct involved distribution
of at least one kilogram of PCP. Mr. Williams
poses a danger to the community and a sentence
reduction is not appropriate.

United States v. Herman Williams, Crim. No. 10-51-12
(D.D.C. July 13, 2016), ECF No. 557 at 5.

The district court’s reliance on what seems like cut-and-
paste reasoning to dispose of Smith’s motion, without any
consideration of his substantially different conviction
circumstances, flouts the law’s promise of an “individualized
assessment.” See Nelson v. United States, 555 U.S 350, 351
(2009) (per curiam) (holding that a court must “consider what
sentence is appropriate for the individual defendant in light of
the statutory sentencing factors”).

At no point did the district court’s carbon-copy analysis
acknowledge, let alone factor in, the same court’s recognition
at the initial sentencing that Smith—unlike Wade or
Williams—had not engaged in violent conduct. Plea Hr’g Tr.
13 (“You are not charged with any of the violent activities,
right?”). Before going forward with the plea, Smith was
adamant about preserving his eligibility for a Bureau of Prison
rehabilitation program that is not available to individuals
convicted of violent crimes. Understanding that, the district
court found on the record that the evidence did not indicate
“Mr. Smith carr[ied] out any act of violence,” Sentencing Hr’g
Tr. 13, and specifically recommended that Smith be considered
for the program.

Against that distinct backdrop, the district court’s
declaration at resentencing that Smith was a danger to the
 14

community came as a sudden and unexplained reversal of
course on a matter that had been of central importance at the
original sentencing proceeding. The district court made no fact
findings and offered no rationale for its about-face. Cf. United
States v. Kpodi, 824 F.3d 122, 127–128 (D.C. Cir. 2016)
(finding an abuse of discretion where district court relied on
factual findings at sentencing that contradicted pre-trial
findings and were clearly erroneous).

To be sure, the district court pointed to the gang’s
responsibility for a murder. But that was not new—the district
court was aware of that at the original sentencing. It did not
affect the court’s original judgment about the non-violent
character of Smith’s offense because the record was undisputed
that Smith had nothing at all to do with that aspect of the gang’s
activities. As the district court had explained previously, the
RICO charge to which Smith pled guilty “doesn’t necessarily
have violence in it.” United States v. Robert Smith, Crim. No.
10-51-9 (D.D.C. Aug. 9, 2011), ECF No. 567 at 12. The court
also accepted that Smith had little to no knowledge of the
murders committed by other members of the Pray Drug
Organization. Plea Hr’g Tr. 16. (defense counsel explained
that Smith “doesn’t know about” all of the “murder
information,” to which the district court affirmed “Right”). As
far as the court’s resentencing decision reveals, nothing had
changed. Yet the court painted Smith with the same danger-
to-the-community brush as Wade and Williams, who
respectively had actual involvement with firearms and the
murder.

Under Section 3553(a)’s individualized-decisionmaking
rubric, reversals of course or seemingly contradictory findings
should not go unexplained. See, e.g., United States v. Woods,
581 F.3d 531, 538 (7th Cir. 2009), overruled on other grounds
by United States v. Taylor, 778 F.3d 667 (7th Cir. 2015)
(concluding that “district courts in § 3582(c)(2) proceedings
cannot make findings inconsistent with that of the original
 15

sentencing court”); United States v. Adams, 104 F.3d 1028,
1030 (8th Cir. 1997) (holding that findings at sentencing “that
adequately reflect[ed] the seriousness of the actual offense
behavior” may not be reversed in a later § 3582(c)(2)
proceeding); cf. Kpodi, 824 F.3d at 127-128; see also 18 U.S.C.
§ 3553(a)(2)(D) (requiring a court to consider the defendant’s
need for “medical care, or other correctional treatment” in
resentencing, which it did here at during his initial sentencing
hearing concluding that Smith would benefit from admittance
to the drug rehabilitation program).

Given the unique circumstances of this case—the carbon-
copy reasoning, and the sharp yet unexplained change in course
in characterizing Smith’s offense as violent—there was “much
else for the judge to say” and “a more detailed explanation
w[as] necessary.” Chavez-Meza, 138 S. Ct. at 1967.

*****

The district court erred in holding that Smith was
categorically ineligible for resentencing. The court’s
alternative holding that a resentencing was not warranted
contradicted its original finding that Smith’s crime was non-
violent, and lacked the personalized analysis required to permit
meaningful appellate review. For those reasons, we reverse
and remand so that the district court can undertake an
individually tailored determination of whether resentencing is
warranted in this case.

So ordered.