FILED
United States Court of Appeals
Tenth Circuit
May 25, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-6328
RAYNE ALISA OSBORN,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:06-CR-00207-HE-1)
Submitted on the briefs:*
Susan M. Otto, Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-
Appellant.
Sanford C. Coats, United States Attorney, and Debra W. Paull, Assistant United States
Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
submitted without oral argument.
BRISCOE, Chief Judge.
Defendant-appellant Rayne Alisa Osborn appeals from the district court’s order
denying her a reduction of her criminal sentence under 18 U.S.C. § 3582(c)(2). Osborn
argues that the district court abused its discretion in declining to apply an ameliorative
amendment to the United States Sentencing Guidelines to reduce her term of
incarceration. We have jurisdiction to review the district court’s denial under 28 U.S.C. §
1291. See United States v. Trujeque, 100 F.3d 869, 870-71 (10th Cir. 1996). We affirm.
I.
In February 2007, Osborn was convicted after pleading guilty to one count of
distributing five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
ROA, Vol. 1, at 22. The sentencing court imposed a 108-month term of incarceration to
be followed by four years of supervised release. Id. at 23-24. This sentence was at the
low end of the guideline range of 108 to 135 months’ imprisonment. Id., Vol. 2, at 13.
In May 2008, Osborn sought and obtained a reduction of her sentence based on an
ameliorative amendment to the Guidelines, Amendment 706, which made her eligible for
a two-level reduction in her offense level. See U.S.S.G. app. C, amend. 706 (effective
Nov. 1, 2007). Osborn, the government, and the probation officer agreed that the
amended guideline range was 87 to 108 months. ROA, Vol. 1, at 42. In granting Osborn
partial relief, the court concluded “based on the Guidelines amendment, the parties’
positions, and [Osborn’s] post-incarceration conduct, that modification of defendant’s
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term of imprisonment is appropriate.” Id. at 44. The court declined to reduce Osborn’s
sentence to the low end of the amended guideline range because of the nature of the
offense—namely, Osborn “engaged in an ongoing series of drug transactions
accompanied by, or facilitated by, trafficking in firearms.” Id. The court reduced
Osborn’s sentence to 96 months. Id. at 42-44.
In October 2011, Osborn and the government jointly moved for an additional
reduction in the motion underlying this appeal. See id. at 51-53. The parties agreed that a
new ameliorative amendment to the Guidelines, Amendment 750, applied to Osborn’s
conviction. Id. at 51. The United States Sentencing Commission promulgated that
amendment to effectuate the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 11-220, 124
Stat. 2372. The amendment altered the drug-quantity tables in the Guidelines,
“increasing the required quantity to be subject to each base offense level in a manner
proportionate to the statutory change to the mandatory minimums effectuated by the
FSA.” United States v. Curet, 670 F.3d 296, 309 (1st Cir. 2012); see also U.S.S.G. app.
C, amend. 750 (effective Nov. 1, 2011). A subsequent amendment made Amendment
750 retroactive, permitting defendants like Osborn to move for sentence reductions under
18 U.S.C. § 3582(c)(2).1 See U.S.S.G. app. C, amend. 759 (effective Nov. 1, 2011).
1
A few months after the FSA became law, we observed that the FSA does not
apply retroactively to individuals who were sentenced before it went into effect. United
States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010). We now reaffirm this view, which
is in accord with that of other circuits. See, e.g., United States v. Curet, 670 F.3d 296,
309 (1st Cir. 2012) (“Here, Curet’s sentencing took place before the FSA became
effective, and so the FSA does not apply.”); United States v. Orr, 636 F.3d 944, (8th Cir.)
(continued...)
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According to the joint motion, Amendment 750’s modifications to the drug-quantity
tables reduced Osborn’s base offense level to 26. ROA, Vol. 1, at 52. After accounting
for level adjustments, her amended total offense level was 25, which corresponds to a
guideline range of 57 to 71 months’ incarceration. Id. But because Osborn’s offense
carried a mandatory minimum sentence of five years that was unaffected by the FSA, the
parties explained that “the effective advisory guideline range is 60 to 71 months’
incarceration.” Id. at 53. The parties attached a report prepared by the probation office
that reached the same conclusion. Id. at 55-57. The report indicated that Osborn had
been cited for two disciplinary infractions while incarcerated for this offense. Id. at 56.
The report concluded that, “[a]s of October 12, 2011, [Osborn] has served approximately
61 months. Should the Court sentence her to the guideline sentence of 60 months, she
1
(...continued)
(“Congress expressed no desire in the FSA that the law be applied retroactively, and
consequently the federal Savings Statute clearly forecloses Orr’s argument for retroactive
application.”), cert. denied, 132 S. Ct. 758 (2011); United States v. Carradine, 621 F.3d
575 (6th Cir. 2010) (“[T]he Fair Sentencing Act of 2010, contains no express statement
that it is retroactive nor can we infer any such express intent from its plain language.”),
cert. denied, 131 S. Ct. 1706 (2011).
The FSA amended certain statutory minimum sentences, while Amendment 750
amended the Guidelines to lower certain base offense levels. The FSA only applies to
defendants sentenced after August 3, 2010. See Pub. L. No. 11-220, 124 Stat. 2372
(2010). On the other hand, it is clear that Amendment 750 may be applied retroactively.
However, in many cases, the operation of the statutory minimum sentence will preclude a
sentence reduction under 18 U.S.C. § 3582(c)(2). See U.S.S.G. § 1B1.10, cmt. n.1 (2011)
(“[A] reduction in the defendant’s term of imprisonment is not authorized under 18
U.S.C. 3582(c)(2) . . . [if] an amendment listed in subsection (c) is applicable to the
defendant but the amendment does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of another guideline or statutory
provision (e.g., a statutory mandatory minimum term of imprisonment).”).
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would be eligible for immediate release.” Id. at 57.
The district court denied the motion. The court concluded that “no further
reduction in sentence is appropriate” in light of its earlier reduction, “both the positive
and limiting factors” it previously considered, and a reevaluation of the 18 U.S.C. § 3553
factors. Id. at 136. The court explained that because the Guidelines “were advisory at the
time [Osborn] was originally sentenced[,] . . . a reduction in the [G]uidelines does not
force the conclusion that the court’s original assessment of the § 3553 factors was in error
or that some reduction, proportionate or otherwise, is now necessary.” Id. at 135-36.
Osborn filed this timely appeal.
II.
Osborn contends the district court erred in denying her relief “based on historical
factors used to justify the initial sentence and the [earlier] partial reduction of that
sentence.” Aplt. Br. at 8 (all capital letters in original). In her view, “the district court’s
reasoning reveals a misconstruction of the fundamental issue of law and erroneous
conclusions regarding the significance of critical facts.” Id. at 9.
We review for an abuse of discretion a district court’s decision to deny a reduction
of sentence under 18 U.S.C. § 3582(c)(2). United States v. Sharkey, 543 F.3d 1236, 1238
(10th Cir. 2008); United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996).
Once a sentence is imposed, a district court has the authority to modify the
sentence “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
5
Commission[,] . . . 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 relevant policy
statement provides that “the court may reduce the defendant’s term of imprisonment as
provided by 18 U.S.C. § 3582(c)(2)” if a reduction is consistent with the policy statement.
U.S.S.G. § 1B1.10(a)(1) (2011) (emphasis added). The application notes to the policy
statement give shape to the court’s discretion. The court “shall consider” the factors in §
3553 and the nature and seriousness of any threat to public safety in determining whether
a reduction is warranted. Id. § 1B1.10, cmt. n.1(B). Additionally, the court “may
consider” the defendant’s post-sentencing conduct. Id.
We have no trouble concluding that Osborn was eligible for a sentence reduction
under § 3582(c)(2). Amendment 750 to the Guidelines, which applies retroactively,
lowered the base offense level for Osborn’s offense of conviction. As a covered
amendment listed in § 1B1.10(c) of the Guidelines, Amendment 750 made Osborn
eligible for a reduced term of imprisonment. But an ameliorative amendment to the
Guidelines in no way creates a right to sentence reduction. See United States v. Telman,
28 F.3d 94, 95 (10th Cir. 1994) (“[I]t is apparent from the language of § 1B1.10(a)—i.e.,
‘may consider’—that a reduction is not mandatory but is instead committed to the sound
discretion of the trial court.”). “The retroactive application of a change in the offense
level of the Sentencing Guidelines is not required by § 1B1.10(a), but rather falls within
the district court’s discretion.” Dorrough, 84 F.3d at 1311.
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Osborn argues that the district court misapplied the law when it relied on certain
“historical factors” used in the initial sentence computation. But the nature and
circumstances of the underlying offense are eminently proper considerations in a motion
under § 3582(c)(2). The district court is to consider “the factors set forth in section
3553(a)” in determining whether to reduce a sentence. 18 U.S.C. § 3582(c)(2). Those
factors include “the nature and circumstances of the offense and the history and
characteristics of the defendant” and “the need for the sentence imposed . . . to protect the
public from further crimes of the defendant.” Id. § 3553(a)(1), (a)(2)(C). Especially
because this was Osborn’s second motion for sentence reduction, it was reasonable for the
court to rely on its earlier findings based on the § 3553(a) factors. The seriousness of the
offense, given the involvement of firearms on multiple occasions, is a proper basis for
denying a motion under § 3582(c)(2). So too is the presence of prison disciplinary reports
on Osborn’s record. See U.S.S.G. § 1B1.10, cmt. n.1(B)(iii) (2011) (“The court may
consider post-sentencing conduct of the defendant that occurred after imposition of the
term of imprisonment in determining . . . whether a reduction in the defendant’s term of
imprisonment is warranted . . . .”). The court acted well within its discretion in denying
the joint motion for sentence reduction.
III.
The decision of the district court is AFFIRMED.
7