FILED
United States Court of Appeals
Tenth Circuit
July 16, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-6050
v. (W.D. Okla.)
CAMERON TAEVON JONES, (D.C. No. 5:07-CR-00294-F-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Cameron Taevon Jones appeals the denial of his
motion under 18 U.S.C. § 3582(c) to reduce his sentence on the basis of a
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
retroactive amendment to the United States Sentencing Commission, Guidelines
Manual (“USSG”). Finding no abuse of discretion in the district court’s denial of
the motion, we affirm.
BACKGROUND
On July 10, 2007, Oklahoma City police officers were patrolling an area
known for increased drug activity and gang-related violence. While riding in an
unmarked police vehicle, police officers saw a group of individuals, wearing gang
colors, walking in the area. The officers stopped to make contact with the group.
When they did so, an individual (who turned out to be defendant Jones) threw
what appeared to be a wad of papers onto the ground and ran away. The officers
later determined that the discarded item was $257.00 in cash. While running
away, Jones discarded a baggie later determined to contain 29.6 grams of crack
cocaine.
After a brief chase, Jones was arrested. Police personnel subsequently
determined that Jones was on supervised release following his release from prison
for a 1998 conviction for armed robbery.
Jones pled guilty in January 2008 to possession of cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). In preparation for sentencing
under the Guidelines, the United States Probation Office prepared a presentence
report (“PSR”). The PSR calculated Jones’s total offense level as 23 which, with
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a criminal history category of III, resulted in a Guidelines sentencing range of
fifty-seven to seventy-one months. There was, however, an applicable sixty-
month statutory mandatory minimum sentence. Jones was thereafter sentenced to
seventy-one months’ imprisonment, to be served consecutively to a twenty-four-
month sentence imposed for violating the conditions of his supervised release by
committing the instant offense.
In 2010, the Fair Sentencing Act of 2010 (“FSA”) reduced the penalty
disparity between crack cocaine and powder cocaine from a 100:1 ratio to an 18:1
ratio. See Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010). The FSA also
directed the Sentencing Commission to revise the Guidelines to reflect the change
in the crack/powder ratios. Accordingly, the Commission promulgated
Amendment 750, which 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. Osborn, 679 F.3d 1193, 1194 (10th
Cir. 2012) (quoting United States v. Curet, 670 F.3d 296, 309 (1st Cir. 2012)); see
also USSG app. C, amend. 750 (effective Nov. 1, 2011). A subsequent
amendment made Amendment 750 retroactive, permitting defendants like Jones to
move for sentence reductions under 18 U.S.C. § 3582(c)(2). See USSG app. C,
amend. 759 (effective Nov. 1, 2011). Osborn, 679 F.3d at 1194.
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Accordingly, in 2011, the Probation Office advised the district court that
Jones was eligible for relief under 18 U.S.C. § 3582(c)(2) because of the
retroactive application of Amendment 750 to the crack cocaine guideline. If
granted, this would have the effect of reducing the applicable Guidelines range
from fifty-one to seventy-one months to forty-six to fifty-seven months.
Nonetheless, because the new Guidelines range was below the statutory
mandatory minimum of sixty months, Jones was not eligible for a sentence below
the sixty-month mandatory minimum.
Jones then filed a motion seeking a reduction in his sentence. The
government did not oppose the motion. The district court responded with an
order, which recited the procedural history of this case, including Jones’s earlier
conviction for armed robbery and his prompt return to criminal activity (some
seven months after being released from prison on the armed robbery conviction)
while on supervised release. This led to both the revocation of his supervised
release and imposition of a new sentence on that basis, as well as the imposition
of the instant sentence for cocaine possession.
The court then directed the government to address how a reduction in
Jones’s sentence would be both consistent with the sentencing factors set forth in
18 U.S.C. § 3553(a) and serve the public interest. The government responded to
this direction as follows:
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The government counsel’s decision not to oppose the
defendant’s Motion [for reduction of sentence] was not made with
specific reference to § 3553 but was instead guided by two other
factors. First, there was no legal basis on which to object to the
Motion. Second, the defendant’s Motion did not appear to minimize
or leave unaddressed any § 3553 factors that warranted an objection
or comment from the government. The remaining issues – whether to
grant relief under § 3582 at all, and if so, to what extent – were
viewed by the government as being matters exclusively within the
Court’s considerable sentencing discretion.
Resp. to Order at 2, R. Vol. 1 at 28. The government then stated that Jones was
not “entitled to the Court’s consideration of his request for a sentence reduction,”
after noting that Jones had been “convicted of a violent robbery less than a month
after his 18th birthday,” and that he “managed to complete only 7 months of his
three-year term of supervised release before committing a serious drug offense.”
Id. at 2-3.
Jones also filed a response to the district court’s order, in which he argued
that a sixty-month sentence would “adequately deter him from criminal conduct.”
Supp. to Mot. at 3, R. Vol. 1 at 32. He pointed out that while his “prior
institutional adjustment was poor . . . [with] numerous infractions,” his current
term of incarceration was “much better,” that he has been involved in programs
and that he has “skills and a goal when released.” Id. at 3-4. Jones opined that
“his own will and the supervision by the United States Probation Office will
provide sufficient protection to the public from further crimes by him.” Id. at 4-
5.
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In denying Jones’s motion to reduce his sentence, the district court noted
Jones’s improved behavior during his second period of incarceration, as well as
his engagement in “numerous potentially beneficial educational opportunities.”
Order at 3, R. Vol. 1 at 37. After noting that the government’s submissions were
“conspicuously silent as to how a reduction in the defendant’s sentence would be
‘otherwise in the public interest,’” the court ruled as follows:
The court has . . . carefully considered the § 3553(a) factors, as
applied to the circumstances now before the court. Although some
aspects of the defendant’s record during his current term of
incarceration suggest that he is on a favorable trajectory, and
although there may be reason to hope that the defendant will, with
the aid of post-release supervision, redirect his life in a positive,
constructive direction after he is released from his current
incarceration, the court, after careful consideration, is unpersuaded
that application of the § 3553(a) factors favors reduction of the
defendant’s sentence. The defendant’s history of violence and
otherwise serious criminal conduct, as described above, speaks for
itself. The single most predominant sentencing factor in this instance
is incapacitation. The defendant’s first attempt to redirect his life
while on supervised release ended with his commission of another
very serious federal crime a few months after he was released.
Notwithstanding the defendant’s assurances, . . . the court is unable
to conclude, with a sufficient confidence level, that the result will be
different the next time. For that reason, although the court is
impressed with some aspects of the showing which has been made by
the defendant, and although the court assuredly does not leap to this
conclusion, the court has concluded that the public interest is not
served by shortening the period of time before which the defendant is
once again released into society.
Id. at 4-5. This appeal followed.
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DISCUSSION
“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).” Osborn, 679 F.3d at 1195.
Under § 3582(c)(2), a district court has the authority to modify a 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
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 applicable 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.” Osborn, 679
F.3d at 1195 (quoting USSG § 1B1.10(1)) (emphasis in original).
As we noted in Osborn, the “application notes to the policy statement give
shape to the court’s discretion” and state that 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. (quoting USSG § 1B1.10,
cmt. n. 1(B)). The court also “may consider” the defendant’s post-sentencing
conduct. Id. (quoting USSG § 1B1.10, cmt. n. 1(B)).
While both parties agree, as did the district court and as do we, that Jones
was eligible for a sentence reduction, we explicitly stated in Osborn that “an
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ameliorative amendment to the Guidelines in no way creates a right to a sentence
reduction.” Id. at 1196. Rather, any such reduction “falls within the district
court’s discretion.” Id. (quoting United States v. Dorrough, 84 F.3d 1309, 1311
(10th Cir. 1996)).
Jones argues that the district court erred, and abused its discretion, in
denying a sentence reduction in reliance “on the facts that merited a sentence
first.” Appellant’s Br. at 7. We faced and rejected this identical argument in
Osborn. As we stated there, “the nature and circumstances of the underlying
offense are eminently proper considerations in a motion under § 3582(c)(2).”
Osborn, 679 F.3d at 1196. And while Jones presented evidence of improvements
in his behavior post-sentencing, the district court considered that evidence but
concluded that it did not support a sentence reduction.
In short, we conclude that the district court acted “well within its
discretion” in denying Jones’s motion to reduce his sentence. Id. We accordingly
affirm its denial.
CONCLUSION
For the foregoing reasons, we AFFIRM the denial of Jones’s motion.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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