REVISED DECEMBER 14, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 09, 2009
No. 08-30604
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LIONEL COOLEY, a/k/a Boo Boo, a/k/a Bootie Cooley,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:02-cr-00302-ILRL-1
Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:
Defendant-Appellant Lionel Cooley appeals from the district court’s
refusal to grant his motion for a modification of his sentence under 18 U.S.C. §
3582(c)(2) following the Sentencing Commission’s November 1, 2007 retroactive
amendment to the United States Sentencing Guidelines (“U.S.S.G.”) provision
2D1.1, which governs offenses that involve cocaine base (crack cocaine).1
1
That amendment raised the quantity required to reach each
base offense level, with the result that the corresponding sentencing
range for an given quantity was lowered. See U.S.S.G. app. C,
amends. 706 (Nov. 1, 2007) and 713 (Mar. 3, 2008).
Cooley’s 105-month sentence constituted a 37.5% downward departure from the
low end of his original sentencing range (168 to 210 months) and even a 25%
downward departure from the low end of the newly amended sentencing range
(140 to 175 months). Cooley nevertheless contends that the district court abused
its discretion when it refused to reduce his sentence further to achieve a
comparable 37.5% reduction below the low end of his new sentencing range
without citing a case-specific reason for doing so, relying instead on the fact that
Cooley’s sentence was already below even the revised guidelines range. We
affirm.
I. Facts & Proceedings
In March 2003, Lionel Cooley pleaded guilty to a crack cocaine offense
pursuant to a plea agreement. Based on his overall offense level and criminal
history, the district court calculated a sentencing range of 168 to 210 months,
with a mandatory minimum of 120 months.2 The government, however, filed a
motion for a downward departure under U.S.S.G. § 5K1.1, which the district
court granted. The court imposed a sentence of 117 months.
A year later, the government filed a motion under Fed. R. Crim. P. 35
seeking a further reduction of Cooley’s sentence for substantial assistance. The
district court granted the motion and reduced Cooley’s sentence to 105 months.
In 2007, the Sentencing Commission retroactively amended U.S.S.G. §
2
A district court may depart from a statutorily mandated
minimum sentence on motion of the government under 18 U.S.C. §
3553(e). Melendez v. U.S., 518 U.S. 120, 124-130, 116 S.Ct. 2057,
135 L.Ed. 2d 427 (1996) (holding that 5K1.1 letter is not, alone,
sufficient to impose sentence below statutorily mandated minimum
absent a separate motion under 18 U.S.C. §3553(e) for substantial
assistance); U.S. v. Phillips, 382 F.3d 489, 499 (5th Cir. 2004)
(holding that district court may impose a sentence below statutory
minimum on the state’s motion under 18 U.S.C. § 3553(e) or (f))
(citing U.S. v. Solis, 169 F.3d 224, 226-27 (5th Cir. 1999)). Here,
the government filed such a motion.
2
2D.1.1(c), the drug quantity table that governs sentencing for narcotics offenses
involving crack cocaine, which effectively reduced Cooley’s offense level by two
points. In April 2008, Cooley filed a motion in the district court for a
modification of his sentence under § 3582(c)(2),3 seeking a reduction of his
sentence from 105 months to 88 months, which would reflect a comparable 37.5%
reduction from the low end of the amended guideline range of 140 months. The
court denied this motion.
II. Analysis
A. Standard of Review
We review a decision “whether to reduce a sentence under § 3582(c)(2)"
for abuse of discretion.4 Although Cooley suggests that this standard of review
encompasses the bifurcated procedural soundness/substantive reasonableness
standard associated with appellate review of sentencing decisions post-Booker,
he is incorrect. As we recently held in United States v. Evans,5 because a
3
If “a defendant . . . has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . 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.” 18 U.S.C. § 3582(c)(2). The policy
statement at issue is the newly amended U.S.S.G. § 1B1.10, which
states that when “a defendant is serving a term of imprisonment, and
the guideline range applicable to that defendant has subsequently
been lowered as a result of an amendment to the Guidelines Manual
listed in subsection (c) below, the court may reduce the defendant’s
term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).”
U.S.S.G. § 1B1.10(1)(a). To be eligible for reconsideration under
U.S.S.G. § 1B1.10(b)(2), the original sentence must generally have
been imposed pre-Booker, 543 U.S. 220 (2005). See U.S.S.G. §
1B1.10(b)(2)(B). That condition is satisfied here.
4
United States v. Evans, No. 08-41259, ---F.3d.---, 2009 WL
3647042, at *3 (5th Cir. Nov. 5, 2009) (internal citations omitted).
5
Id. at *3.
3
sentence modification under § 3582(c)(2) does not constitute a complete re-
sentencing, Booker’s “reasonableness standard does not apply to § 3582(c)(2)
proceedings.”6 Accordingly, it bears repeating that we review the district court’s
decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion,
its interpretation of the guidelines de novo, and its findings of fact for clear
error.7
B. Waiver
As a threshold matter, the government contends that we may not consider
Cooley’s appeal from the denial of his § 3582(c)(2) motion for a sentence
modification because he signed a broadly worded waiver of his rights to appeal.
Neither party denies that the waiver is valid and enforceable;8 rather, they
disagree whether its terms extend to the appeal of a district court’s denial of a
motion under § 3582(c)(2) to modify a sentence because of a change in the
applicable sentencing guidelines. We apply ordinary principles of contract
interpretation when we construe the scope of a waiver agreement,9 with the
caveat that the text should be interpreted narrowly against the government.10
Cooley’s waiver states:
. . . the defendant hereby expressly waives the right to appeal his
6
Id. at *3.
7
Id. at *3.
8
This court reviews the validity of an appeal waiver — whether
a defendant knowingly and voluntarily waived his right to appeal his
sentence — de novo. United States v. Bond, 414 F.3d 542, 544 (5th
Cir. 2005); United States v. Baymon, 312 F.3d 725, 727 (5th Cir.
2002).
9
United States v. McKinney, 406 F.3d 744, 746 (5th Cir.2005).
10
United States v. Harris, 434 F.3d 767, 770 n. 2 (5th
Cir.2005), cert. denied, 547 U.S. 1104, 126 S.Ct. 1897, 164 L.Ed.2d
580 (2006).
4
sentence on any ground, including but not limited to any appeal
right conferred by Title 18, United State Code, Section 3742 on the
defendant, and the defendant further agrees not to contest his
sentence in any post-conviction proceeding, including but not
limited to a proceeding under Title 28, United States Code, Section
2255. The defendant, however, reserves the right to appeal the
following: (a) any punishment imposed in excess of the statutory
maximum, and (b) any punishment to the extent it constitutes an
upward departure from the Guidelines range deemed most
applicable by the sentencing court.
We have never before addressed whether such a broadly written waiver
of appeal encompasses the right to seek appellate review of a modification (or
denial) of a sentence under 18 U.S.C. § 3582(c)(2). Those circuits that have
directly ruled on the issue have uniformly held that such broad language —
including the precise text at issue here, viz., “appeal” and “post-conviction
proceedings” — does not prohibit appellate review of a motion for sentence
modification under § 3582(c)(2).11 And other circuits that have not squarely
addressed the issue have nevertheless suggested that the right to seek
11
United States v. Woods, 581 F.3d 531, 536 (7th Cir. 2009)
(holding waiver of “appeal” and “post-conviction proceedings” did not
waive right to seek sentence modification under § 3582(c)(2) and did
not waive right to appeal denial of same); United States v. Leniear,
574 F.3d 668, 672 & n.3 (9th Cir. 2009) (holding reference in waiver
to “right, contained in §3742, to appeal" and “collateral attack” did
not extend to § 3852(c)(2) and did not waive right to appeal denial
of same); United States v. Chavez-Salais, 337 F.3d 1170, 1174 (10th
Cir. 2003) (holding waiver of direct appeal and "collateral attack,
including but not limited to a [§ 2255] motion” did not extend to
sentence modification under § 3582(c)(2) and did not waive right to
appeal denial of same); United States v. Strachan, 319 Fed. App’x.
774, 776 (11th Cir. 2009) (holding that when appellate waiver in plea
agreement was “unclear as to whether it cover[ed] the appeal of a new
sentence imposed pursuant to § 3582(c)(2)” it could not bar
consideration of the district court’s sentence reduction under §
3582(c)(2)).
5
modification under § 3582(c)(2) survives such waivers of appeal.12 We echo the
Seventh Circuit’s observation that § 3582(c)(2) motions “do not contest” but
rather “bring to the court’s attention changes in the guidelines that allow for a
sentence reduction.”13 Indeed, “the defendants could not contest the district
court’s original sentence of imprisonment through § 3582(c)(2) proceedings
because § 3582(c)(2) provides no avenue through which to attack the original
sentence.”14 We join those circuits which hold that a motion for sentence
modification under 18 U.S.C. § 3582(c)(2) is not properly considered an “appeal”
or “collateral proceeding” under the terms of a general waiver of appeal, such as
the one at issue here, and, consequently, appellate review of the denial of a §
3582(c)(2) motion is not barred by such waivers.
C. Denial of sentence reduction under 18 U.S.C. § 3582(c)(2)
Although Cooley’s appellate waiver does not bar review of his § 3582(c)(2)
motion, his contention that the district court erred when it failed to reduce his
sentence a comparable 37.5% below the new guidelines range is unavailing.
Cooley assigns two points of error to the district court’s ruling. First, he appears
to argue that the district court erred by misapprehending the scope of its
authority when it summarily denied his motion for the stated reason that the
“[o]riginal sentence is below the new range and no further reductions are
12
United States v. Isaacs, 301 Fed. App’x. 183, 185 (3rd Cir.
2008) (holding that notwithstanding valid and enforceable waiver of
direct appeal, defendant remained “free to file a motion under §
3582(c)(2).”).
13
Woods, 581 F.3d at 536.
14
Id. (citing United States v. Lloyd, 398 F.3d 978, 979-80 (7th
Cir. 2005)); accord Evans, 2009 WL 3647042 at *5 (holding that “[a]
§ 3582(c)(2) motion is not the appropriate vehicle for raising issues
related to the original sentencing”)(internal marks and citations
omitted).
6
warranted.” Second, Cooley contends that the district court erred when it failed
to articulate a “case-specific reason” — a reason guided by the factors set forth
in 18 U.S.C. § 3553(a) — for denying his motion.
Cooley is correct that the district court has discretion to order a
comparable reduction in sentence. The policy statement makes clear that “if the
original term of imprisonment imposed was less than the term of imprisonment
provided by the guideline range applicable to the defendant at the time of
sentencing, a reduction comparably less than the amended guideline . . . may be
appropriate.”15 Even though the district court may grant a comparable sentence
reduction, however, it is not compelled to do so. Moreover, we do not glean from
the district court’s summary order a misapprehension of its authority. The
district court’s initial observation that the original sentence was below even the
new guidelines is followed by the statement “and no further reductions are
warranted” (emphasis added). We perceive no error here.
Cooley’s second assignment of error is foreclosed by our recent decision in
Evans.16 There, we clarified that although § 3582(c)(2) “requires the court to
consider the factors in § 3553(a),” the fact “that the court did not mention the §
3553(a) factors when it summarily reduced [the Evans petitioner’s] sentence does
not mean that it did not consider them.”17 Although Cooley — unlike the
petitioner in Evans — did not have the benefit of counsel in the preparation of
his brief addressing § 3582(c)(2), he nevertheless explicitly invoked the § 3553(a)
15
U.S.S.G. § 1B1.10(b)(2)(B) (as amended Mar. 3, 2008) (emphasis
added).
16
Evans, 2009 WL 3647042 at *5.
17
Id. at *4.
7
factors18 and expressed the reasons why they weighed in favor of a comparable
reduction in sentence. As we observed in Evans, “[t]he court had those [§
3553(a)] arguments in front of it when it made its determination. . . .” Thus, “[t]o
the extent that [the petitioner’s] complaint is the fact that the district court
failed to provide reasons . . . a court is ‘not required to state findings of facts and
conclusion of law’ when denying a § 3582(c)(2) motion.”19
The judgment of the district court is
AFFIRMED.
18
These include his continuing cooperation with law enforcement,
good behavior while incarcerated, his completion of a drug-treatment
program and continuing education courses, as well as the need to
provide for and be a father to his seven-year-old daughter.
19
Id. at *5 (citing United States v. Cox, 317 Fed. App’x. 401,
402 (5th Cir. 2009)).
8