Case: 08-30725 Document: 00511021020 Page: 1 Date Filed: 02/04/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 4, 2010
No. 08-30725 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
STACEY JONES, also known as Pokey,
Defendant - Appellant
Appeals from the United States District Court for the
Western District of Louisiana
Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
In this appeal we consider whether the district court committed plain error
in denying a motion to re-sentence Stacey Jones after he had become eligible for
re-sentencing in light of an amendment passed by the Sentencing Commission.
For the following reasons, we now AFFIRM the judgment of the district court.
I.
Stacey Jones was sentenced in 2000 to 292 months of imprisonment for
conspiracy to possess with intent to distribute 50 grams or more of crack
cocaine. In determining the applicable guideline range, the probation officer
Case: 08-30725 Document: 00511021020 Page: 2 Date Filed: 02/04/2010
No. 08-307258
established Jones’s U.S.S.G. § 2D1.1 offense level for his drug offense as 38
because the amount of crack cocaine attributable to Jones was more than 1.5
kilograms. Additionally, the probation officer recommended a three-level
adjustment for acceptance of responsibility, lowering Jones’s § 2D1.1 offense
level to 35. Jones was also found to be a career offender, based on two prior
convictions for crimes of violence. His U.S.S.G. § 4B1.1 offense level as a career
offender was 37. After a three-level adjustment for acceptance of responsibility,
Jones’s career offender offense level was 34. Since the § 2D1.1 drug offense
level after the adjustment (35) was greater than the § 4B1.1 career offender
offense level after the adjustment (34), the § 2D1.1 offense level was used to
determine Jones’s sentencing range.1 Jones’s level-35, category-VI sentencing
range was 292-365 months of imprisonment and he was sentenced to 292
months.2
In 2008, Jones, acting pro se, moved for a reduction in his sentence
pursuant to 18 U.S.C. § 3582(c)(2).3 He argued, first, that his § 2D1.1 offense
level should be lowered to 33 pursuant to Amendment 706 which decreased by
two levels the base offense levels for his crack cocaine offenses. Jones also
argued that the district court had discretion pursuant to United States v. Booker,
543 U.S. 220 (2005) and Kimbrough v. United States, 128 S.Ct. 558 (2007) to
depart from the sentencing range resulting from application of Amendment 706.
In addition, Jones requested that the district court consider his rehabilitative
1
§ 4 B1.1(b) reads, in pertinent part: “If the offense level for a career offender from the
table in this subsection is greater than the offense level otherwise applicable, the offense level
. . . [for a career offender] . . . shall apply.”
2
Because Jones was a career offender, he was automatically placed in criminal history
category VI.
3
18 U.S.C. § 3582(c)(2) reads, in pertinent part: “The court may not modify a term of
imprisonment once it has been imposed except: . . . in 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 Sentencing Commission pursuant to 28 U.S.C. 944(o).”
2
Case: 08-30725 Document: 00511021020 Page: 3 Date Filed: 02/04/2010
No. 08-307258
efforts in prison to fashion a sentence addressing the factors of 18 U.S.C. §
3553(a).
In response to Jones’s motion, the probation officer recommended that no
reduction was warranted. The probation officer made this judgment based on
his erroneous determination that Jones had been sentenced as a career offender
under § 4B1.1.4 A Federal Public Defender (FPD) was appointed to represent
Jones. The FPD erroneously agreed with the probation officer that Jones’s
sentence was not based on his § 2D1.1 drug offense level; but he nevertheless
argued that Jones should be re-sentenced because Amendment 706 still applied
and had the effect of lowering Jones’s sentence. The Government argued that
Jones was not entitled to a sentence reduction because Jones was sentenced as
a career offender and thus Amendment 706 was not applicable. The
Government further argued that Booker and its progeny are inapplicable to
§ 3582 proceedings.
Without holding a hearing, the district court denied Jones’s § 3582(c)(2)
motion, apparently relying on grounds erroneously set forth by the probation
officer that the sentence was based on Jones’s career offender status and not his
drug offense. Jones filed a timely notice of appeal.
II.
A.
When the issue has been properly preserved, we review de novo a district
court’s authority to reduce a sentence pursuant to § 3582(c)(2). United States v.
Doublin, 572 F.3d 235, 237 (5th Cir. 2009). In this case, the parties, probation
4
The Probation Office’s re-calculation of the applicable guideline range of imprisonment
incorrectly stated that Jones’s sentencing range was, “292 - 365–Based on Chapter Four
Career Offender Enhancement” and recommended, “[n]o change as original Sentenced [sic]
was based on a Chapter Four Career Offender Enhancement.”
3
Case: 08-30725 Document: 00511021020 Page: 4 Date Filed: 02/04/2010
No. 08-307258
officer, and district court all operated on the assumption that Jones’s career
offender offense level (§ 4B1.1) had determined his sentence. Before the district
court, Jones erroneously acknowledged that he had been sentenced as a career
offender under § 4B1.1 and argued that because his § 4B1.1 sentence (based on
his career offender status) was predicated on the underlying § 2D1.1 drug
offense, Amendment 706 should apply. On appeal, Jones now argues that
because Amendment 706 should be applied retroactively to reduce his § 2D1.1
offense level from 35 to 33, his § 4B1.1 career offender offense level of 34 is the
applicable level to determine a new sentence. Because the issue Jones raises on
appeal was not presented to the district court, the issue is reviewed for plain
error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).5
B.
To demonstrate plain error, the appellant must show a forfeited error
that is clear or obvious and that affects his substantial rights. United States v.
Olano, 507 U.S. 725, 732–37 (1993). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
In this case, the first two prongs of the plain error analysis are satisfied.
First, there was error. The district court apparently adopted the probation
officer’s mistaken conclusion that Jones had been sentenced as a career offender
under § 4B1.1 and thus Amendment 706 was inapplicable. However, Jones was
sentenced under § 2D1.1 based on his drug offense. Therefore, Amendment
706, which modified the guidelines range applicable to crack cocaine offenses,
applies to Jones’s sentence. An amount of crack cocaine between 1.5 and 4.5
5
On appeal, Jones also argues that the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005) is applicable to proceedings under § 3582(c)(2). This argument
is foreclosed by United States v. Doublin, 572 F.3d 235 (5th Cir. 2009) in which we held that
Booker does not apply to 18 U.S.C. § 3582 reductions. Doublin was decided while Jones’s case
was pending on appeal.
4
Case: 08-30725 Document: 00511021020 Page: 5 Date Filed: 02/04/2010
No. 08-307258
kilograms now places a defendant at a base offense level of 36, two levels lower
than the level under which Jones was sentenced. See United States v. Burns,
526 F.3d 852, 861 (5th Cir. 2008). Thus, adjusting the three points reduced for
Jones’s acceptance of responsibility to his sentence after Amendment 706, his
new § 2D1.1 level would be 33. Because his career offender offense level would
result in a greater sentencing range than would the drug offense level, the career
offender level of 34 under § 4B1.1 would control the applicable sentence Jones
could receive. See 4B1.1(b). Because Amendment 706 directly affected the
offense level Jones received, the district court was in error. In addition, the
error was plain. It was obvious that Jones had been sentenced under § 2D1.1
rather than under § 4B1.1.
For the third prong of plain error review to be satisfied, the defendant
must show that the error affected his substantial rights. Olano, 507 U.S. at 734.
In inquiring whether the defendant’s substantial rights have been affected under
a misapplication of the Guidelines, the “proper question . . . is whether the
defendant can show a reasonable probability that, but for the district court’s
misapplication of the guidelines, he would have received a lesser sentence.”
United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005). Jones was originally
sentenced to 292 months, the bottom of the range for an offense level of 35 and
a criminal history category of VI. After Amendment 706, Jones could be re-
sentenced as a career offender under § 4B1.1 within a range of 262-327 months.
Therefore, the issue narrows to whether Jones’s substantial rights were affected
by the district court’s error when his original sentence lies squarely within the
guidelines range under which he now seeks to be re-sentenced.
In United States v. Jasso, 587 F.3d 706 (5th Cir. 2009), we addressed a
substantially similar fact pattern and declined to find that a defendant’s
substantial rights were affected. In Jasso, the defendant was assigned five
criminal history points in determining his guideline range, two of which, he
5
Case: 08-30725 Document: 00511021020 Page: 6 Date Filed: 02/04/2010
No. 08-307258
argued on appeal, were incorrectly assigned. Id. at 713. With an offense level
of 21, the district court found that the guideline range was forty-six to fifty-seven
months and sentenced the defendant to forty-six months. Id. On appeal, the
defendant argued for the first time that the district court’s erroneous assignment
of the two criminal history points was reversible error. Id. Despite the district
court’s error in assigning the criminal history points to the defendant, however,
this court found that the defendant’s substantial rights were not affected for
purposes of plain error review. Id. We stated:
If this Court were to subtract the two criminal history points that
the district assigned in error, that would put Jasso at a criminal
history category II, with a corresponding advisory range of forty-one
to fifty-one months in prison. His current sentence of forty six
months, therefore, falls squarely in the middle of his corrected
sentence. Given this set of circumstances, we conclude that Jasso
cannot demonstrate a reasonable probability, but for the district
court’s misapplication of the Guidelines, he would have received a
lesser sentence.
Id. at 713–14.6 Similarly, Jones’s current 292 month sentence falls squarely
within the applicable range (262-327) for which he would have been eligible had
he been re-sentenced pursuant to § 4B1.1.
Although the difference in Jones’s original sentence and the bottom end
of the sentencing range he now seeks to apply is thirty months, because of the
substantial overlap between the original and proposed sentencing ranges, Jones
6
See also United States v. Lira Lopez, 149 Fed. Appx. 318, 319 (5th Cir. 2005) (“Lira
Lopez’s sentence of forty-six months falls into either Guideline range calculation and he has
failed to point to any other evidence in the record indicating that, but for this error, the district
court would have imposed a shorter sentence. Since the sentence was not higher than the
correct range under the Guidelines, we see not reason to change our prior affirmance in this
case.” (internal citations and quotations omitted); United States v. Regalado-Flores, 236 Fed.
Appx. 979 (2007) (“Without the “aggravated felony” enhancement, the applicable Guideline
imprisonment range for Regalado-Flores is twenty-four to thirty months, which overlaps with
the twenty-four months actually imposed by the district court in this case. Regalado-Flores
has failed to carry his burden of establishing that the error affected his substantial rights.”).
6
Case: 08-30725 Document: 00511021020 Page: 7 Date Filed: 02/04/2010
No. 08-307258
cannot satisfy the third prong of plain error review. In United States v.Villegas,
404 F.3d 355, 365 (5th Cir. 2005), the sentencing range calculated by the district
court was twenty-one to twenty-seven months, while the range without the
erroneous enhancement should have been ten to sixteen months. The Villegas
court determined that because there was no overlap between the two sentences,
the district court’s error necessarily increased the defendant’s sentence and thus
affected his substantial rights. Id. Since Villegas, this Circuit has generally
found a violation of a defendant’s substantial rights when no overlap exists
between the correct and erroneous sentences. See Jasso, 587 F.3d at 714 n.10
(citing United States v. Munoz-Ortenza, 563 F.3d 112, 116 (5th Cir. 2009); United
States v. Gonzales-Terrazas, 529 F.3d 293, 298-99 (5th Cir. 2009); United States
v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008); United States v. Dentler, 492 F.3d
306, 314 (5th Cir. 2007); United States v. Brazell, 489 F.3d 666, 669 (5th Cir.
2007); United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005)).
In United States v. Price, 516 F.3d 285, 289 (5th Cir. 2008), however, this
court found that a defendant’s substantial rights had been affected by an
erroneous sentence even when the correct and the erroneous sentencing ranges
had overlapped. In Price, the defendant was erroneously sentenced to 110
months within a 110–120 range; the correct sentencing range, however, was
92–115 months. Id. Because the difference between the minimum sentence
that the defendant might have received without the error and the sentence he
did receive was a greater difference than the difference at issue in Villegas, the
court in Price concluded that the defendant’s substantial rights were affected.
Id. at 289 n. 28. Price recognized, however, that the defendant’s ability to show
a reasonable probability that he would have received a lower sentence was due
to the nature of the overlap between the correct and erroneous sentencing
ranges. Id. In Price, the sentencing ranges overlapped by only five months.
Thus, despite finding that the defendant in Price’s substantial rights were
7
Case: 08-30725 Document: 00511021020 Page: 8 Date Filed: 02/04/2010
No. 08-307258
affected, the court acknowledged that in instances where the overlap between
the two sentencing ranges was greater, the satisfaction of the third prong of
plain error review would be more difficult to show: “With more of an overlap
between correct and erroneous sentencing ranges, we would face a closer
question of “substantial rights” . . . We leave that for another day .” Id. Unlike
the defendant’s sentence in Price, Jones’s original sentence lies squarely in the
middle of the range he proposes the district court should now apply. Moreover,
the overlap between the correct and erroneous sentencing range is not five
months but thirty five months, making it more difficult for Jones to show that
the district court’s error actually did affect his substantial rights.
Jones argues that because he was originally sentenced at the bottom of the
applicable guideline range, it “seems highly probable that the district court
would choose to reduce Jones’s sentence to the low end of his recalculated
range.” The defendant in Jasso made the same argument Jones now makes;
however, the court in Jasso remarked that this evidence alone was insufficient
to show a reasonable probability that a defendant would have been received a
lower sentence:
Given that his current sentence sits squarely in the middle of the
correct range, we cannot conclude–based on [the original sentence
having been at the bottom of the guideline range]–that the district
court would likely sentence him to a lower sentence if it had
correctly computed the criminal history points. [The defendant’s
argument] only demonstrates that the district court, when faced
with a Guideline Range of forty-six to fifty-seven months,
concluded it would be reasonable to place the defendant at the
bottom of that range. Without any additional evidence, we cannot
ascertain the likelihood that the district court would consider the
lowest end of any range to be appropriate.
Id. at 714 n. 11 (emphasis in original). At Jones’ s sentencing, the district judge
stated that a 292 month sentence was “an appropriate level” and gave no
8
Case: 08-30725 Document: 00511021020 Page: 9 Date Filed: 02/04/2010
No. 08-307258
indication that he considered that the then-mandatory guidelines sentence was
excessive or harsh. See also United States v. Hernandez-Gonzalez, 405 F.3d 260,
262 (5th Cir. 2005) (holding that a sentence at the bottom of the guidelines level
does not satisfy the third prong of plain error review since this fact alone does
not create a reasonable probability that the defendant would have received a
different sentence upon re-sentencing). Accordingly, we conclude that Jones
cannot demonstrate that the error affected his substantial rights.
Because Jones has failed to show that the court’s error affected his
substantial rights, we find that the district court did not commit plain error.
The judgment of the district court is
AFFIRMED
9