United States v. Mitchell Smalls

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6021

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MITCHELL SMALLS, a/k/a Gary Richardson, a/k/a Cebo, a/k/a
Kilo,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:96-cr-00131-RBS-2)

Argued: May 17, 2013 Decided: June 19, 2013

Before MOTZ and GREGORY, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Gregory and Judge Hollander joined.

ARGUED: Dylan W. Greenwood, WAKE FOREST UNIVERSITY SCHOOL OF
LAW, Winston-Salem, North Carolina, for Appellant. Richard
Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: John J. Korzen, Director,
John W. Forneris, Third-Year Student, WAKE FOREST UNIVERSITY
SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:

Mitchell Smalls appeals from the district court’s order

granting, only in part, his motion for a sentence reduction

under 18 U.S.C. § 3582(c)(2). He contends the court erred in

failing to provide an individualized explanation in support of

its chosen sentence. For the reasons that follow, we affirm.

I.

In September 1996, a jury found Smalls guilty of conspiracy

to import cocaine. At sentencing, the district court held

Smalls accountable for quantities of cocaine base and powder

cocaine, producing a guideline range of imprisonment for 360

months to life. The court sentenced Smalls to life in prison.

In February 2008, Smalls filed a motion for reduction of

sentence pursuant to 18 U.S.C. § 3582(c)(2). He based this

motion on the 2007 crack cocaine amendments to the Sentencing

Guidelines, which reduced his guideline range to 324 to 405

months. The district court granted the motion and reduced

Smalls’ sentence from life imprisonment to 405 months.

In November 2011, Smalls, pro se, filed a second 18 U.S.C.

§ 3582(c)(2) motion for reduction of sentence. He based this

motion on Amendment 750 to the Sentencing Guidelines, which

reduced his guideline range to 262 to 327 months. In the

motion, Smalls argued that the district court should not have

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included cocaine base when calculating his drug quantities at

the initial sentencing and requested a sentence of 210 months.

He did not discuss or even mention any other factors that might

counsel in favor of a sentence reduction in his case.

After receiving Smalls’ motion, the district court ordered

the Government to file a response addressing whether it opposed

the motion. The court further stated that “any reply by

defendant shall be filed within thirty (30) days of said

response.” The Government filed a timely response in which it

agreed that Smalls was eligible for a sentence reduction but

requested that he again receive the maximum sentence under the

applicable guideline range. Two days later, without waiting for

Smalls’ reply, the district court considered Smalls’ motion and

reduced his sentence to 327 months, the maximum sentence in the

amended guideline range.

In ruling on Smalls’ motion, the district court used a form

document. By way of explanation for the court’s chosen sentence

the form indicates only: “In granting this motion, the court

has considered the factors set forth in 18 U.S.C. § 3553(a).”

Smalls appeals, arguing that the district court erred in failing

to provide an individualized explanation in support of the

sentence imposed.

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 II.

A district court may reduce 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.” 18 U.S.C. § 3582(c)(2). Whether to

reduce a sentence and to what extent is a matter within the

district court’s discretion. See United States v. Legree, 205

F.3d 724, 727 (4th Cir. 2000). In exercising this discretion,

however, the court must consider the factors set forth in 18

U.S.C. § 3553(a) “to the extent that they are applicable.” See

18 U.S.C. § 3582(c)(2). The court may also consider the

defendant’s post-sentencing conduct. See U.S. Sentencing

Guidelines Manual § 1B1.10 cmt. 1(B)(iii).

We review a district court's grant or denial of a

§ 3582(c)(2) motion for abuse of discretion. United States v.

Munn, 595 F.3d 183, 186 (4th Cir. 2010). But the question of

whether a court ruling on a § 3582(c)(2) motion must provide an

individualized explanation is one of law that we consider de

novo. See Legree, 205 F.3d at 727-28.

In Legree, we held that, “absent a contrary indication,” we

presume a district court deciding a § 3582(c)(2) motion has

considered the 18 U.S.C. § 3553(a) factors and other pertinent

matters before it. Id. at 728-29 (internal quotation marks

omitted); see also id. at 728 (“[A] court need not engage in

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ritualistic incantation in order to establish its consideration

of a legal issue. It is sufficient if . . . the district court

rules on issues that have been fully presented for

determination. Consideration is implicit in the court’s

ultimate ruling.” (internal quotation marks omitted)). Thus,

Legree suggests that, in the absence of evidence a court

neglected to consider relevant factors, the court does not err

in failing to provide a full explanation for its § 3582(c)(2)

decision.

III.

Smalls contends that in his case the district court did

err. Smalls argues that (1) Legree did not hold that a court

need not provide any individualized reasoning for its

§ 3582(c)(2) decision; (2) the facts of his case overcome the

Legree presumption; and (3) Legree is no longer good law. We

consider these arguments in turn.

A.

First, Smalls asserts that Legree did not address the

question of whether a district court must provide some reasoning

in support of its grant or denial of a § 3582(c)(2) motion,

because that issue was not before the court. In fact, however,

Legree addressed that exact issue.

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 Legree primarily argued that the district court erred in

failing to conduct a two-part analysis of his motion on the

record, first stating the sentence it would have imposed had the

relevant Guidelines amendment been in place at the original

sentencing and, second, addressing the § 3553(a) factors. Id.

at 728. But Legree also contended that “the district court

erred because it did not state on the record with sufficient

specificity its reasons for denying the motion.” Id. at 729

n.3. We rejected that argument even though the district court

had provided no individualized explanation in support of its

decision. See id. at 730-31 (Wilson, J., dissenting in part).

Thus, we find Smalls’ attempt to distinguish Legree unavailing.

B.

Smalls also argues that the facts of his case present a

“contrary indication” sufficient to rebut the Legree presumption

that the district court considered all relevant factors in

ruling on his § 3582(c)(2) motion.

In concluding that Legree himself had not overcome this

presumption, we found it significant that the same judge who

ruled on Legree’s § 3582(c)(2) motion presided over his

sentencing and so was familiar with the mitigating factors set

forth at that time. Id. at 729. Because Legree’s § 3582(c)(2)

motion failed to offer any new mitigating circumstances, we

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concluded that all relevant factors were “adequately presented

to,” and considered by, the district judge. See id.

As in Legree, the same district judge presided over Smalls’

original sentencing and his § 3582(c)(2) proceeding. Further,

Smalls’ § 3582(c)(2) motion, like Legree’s, failed to set forth

any new mitigating factors. While Smalls argued in his motion

that the district court erred in its original drug quantity

calculations, a § 3582(c)(2) motion does not provide an

appropriate vehicle for challenging those calculations. See

Dillon v. United States, 130 S. Ct. 2683, 2694 (2010) (district

court ruling on § 3582(c)(2) motion properly declined to address

allegations of error at original sentencing, as Ҥ 3582(c)(2)

does not authorize a resentencing”). Thus, any error in Smalls’

original sentencing would not constitute a mitigating

circumstance counseling in favor of a further reduction in his

sentence.

Smalls contends, however, that three critical factors

distinguish his case from Legree. First, Smalls notes that

fifteen years elapsed between his original sentencing and the

district court’s consideration of his most recent § 3582(c)(2)

motion, compared to four years in Legree. Thus, Smalls

suggests, a reviewing court cannot presume that the facts of his

case remained fresh in the district court’s mind. The lapse of

such a significant amount of time might in some cases cast doubt

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on such a presumption. But in this case Smalls filed, and the

same district judge addressed, several motions during the

fifteen-year period, suggesting that the judge remained familiar

with the facts of Smalls’ case.

Second, although Smalls does not contend that his

§ 3582(c)(2) motion set forth any new mitigating factors, he

maintains that he would have submitted evidence of his exemplary

post-sentencing conduct in the reply brief the district court

said he could file. Thus, Smalls argues, the district court

prevented him from fully presenting his case by deciding the

§ 3582(c)(2) motion before receiving his reply brief. The

fundamental problem with this contention is that new arguments

cannot be raised in a reply brief. See United States v. Al–

Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004). Thus, in failing

to consider a reply brief, the district court did not fail to

consider all relevant factors properly before it.

Third, Smalls suggests that his case resembles not Legree,

but another case in which the defendant and the government

jointly recommended a sentence reduction and the district court

refused to adopt that agreed-upon reduction or explain its

refusal to do so. Even assuming such facts suffice to rebut the

Legree presumption, in Smalls’ case the Government never agreed

to the extent of the reduction he requested. Rather, the

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Government requested a reduction only to the top of the amended

guideline range, and the district court granted that request.

Thus, Smalls is unable to identify any factor that

meaningfully distinguishes his case from Legree. Moreover, we

find it significant that the district court proportionally

reduced Smalls’ sentence. In 1996, when originally sentencing

Smalls, the court found a sentence at the top of the then-

applicable guideline range appropriate based on the extent of

Smalls’ criminal activities and his failure to take

responsibility for his actions. In response to Smalls’ 2008

motion for reduction of sentence, the district court reduced

Smalls’ sentence to the top of the amended guideline range. The

court’s decision, in response to Smalls’ most recent

§ 3582(c)(2) motion, to select a sentence at the top of the new

guideline range suggests that the same considerations that

motivated the court in the first instance continue to justify a

top-of-guidelines sentence.

We therefore conclude that the facts of Smalls’ case do not

rebut the Legree presumption that the district court considered

any relevant factors before it.

C.

Finally, Smalls contends Legree is no longer good law

because the Supreme Court’s decisions in Gall v. United States,

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552 U.S. 38 (2007), and Dillon v. United States undermine its

reasoning.

1.

In Gall, the Court clarified the obligations of a

sentencing court in the wake of United States v. Booker, 543

U.S. 220 (2005), which held the Sentencing Guidelines advisory.

The Court concluded that an out-of-guidelines sentence need not

be justified by “extraordinary” circumstances, but that, whether

imposing a within-guidelines sentence or not, the sentencing

court must consider the 18 U.S.C. § 3553(a) factors and “make an

individualized assessment based on the facts presented.” Gall,

552 U.S. at 47, 49-50. Further, the sentencing court “must

adequately explain the chosen sentence to allow for meaningful

appellate review and to promote the perception of fair

sentencing.” Id. at 50.

Though Gall makes clear that a sentencing court must

explain its reasoning when initially sentencing a defendant, it

says nothing about § 3582(c)(2) proceedings. Moreover, in

indicating that sentencing courts must adequately explain their

chosen sentences, the Gall Court relied on Rita v. United

States, 551 U.S. 338 (2007). See Gall, 552 U.S. at 50; Rita,

551 U.S. at 356 (“The sentencing judge should set forth enough

to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his

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own legal decisionmaking authority.”). And in Rita, the Supreme

Court rooted the requirement that a district court explain its

reasoning in 18 U.S.C. § 3553(c), a provision that does not

apply to § 3582(c)(2) proceedings. Rita, 551 U.S. at 356-57;

see 18 U.S.C. § 3553(c) (requiring the court, “at the time of

sentencing,” to “state in open court the reasons for its

imposition of the particular sentence” (emphasis added)); United

States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009) (“By its very

terms, [§ 3553(c)] applies at the time of sentencing, not at the

time of sentence modification.”).

Dillon, which the Court issued three years after Gall,

further undermines Smalls’ argument that Gall extends to

§ 3582(c)(2) proceedings. The question in Dillon was whether

Booker rendered advisory a policy statement governing

§ 3582(c)(2) proceedings, which provides that, except in limited

circumstances, a court cannot reduce a defendant’s sentence

below the minimum of the amended guideline range. See U.S.S.G.

§ 1B1.10(b)(2). The Court held that Booker did not render the

statement advisory, as § 3582(c)(2) proceedings “do not

implicate the interests identified in Booker.” Dillon, 130

S. Ct. at 2692; see id. at 2687 (noting that Booker “rendered

the Guidelines advisory to remedy the Sixth Amendment problems

associated with a mandatory sentencing regime”).

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 In holding Booker inapplicable, the Supreme Court in Dillon

explained that Ҥ 3582(c)(2) does not authorize a sentencing or

resentencing proceeding,” and emphasized the “limited nature” of

§ 3582(c)(2) proceedings. Id. at 2690-91. Given Dillon’s

emphasis on the distinctions between sentencings and

§ 3582(c)(2) proceedings, we simply cannot assume that Gall,

which makes no mention of § 3582(c)(2) proceedings, implicitly

created rules to govern them. Thus, Smalls’ argument that Gall

undermines Legree fails.

2.

Smalls’ further contention that, independent of Gall,

Dillon established a new rule requiring courts to provide

individualized reasoning when deciding § 3582(c)(2) motions

fares no better. Dillon did, as Smalls points out, note that

courts deciding § 3582(c)(2) motions are to consider applicable

§ 3553(a) factors. Id. at 2692. But, contrary to Smalls’

contention, Dillon did not create that requirement. Rather, as

we recognized in Legree, § 3582(c)(2) itself instructs courts to

consider the § 3553(a) factors. See 18 U.S.C. § 3582(c)(2)

(“[T]he court may reduce the [defendant’s] term of imprisonment,

after considering the factors set forth in section 3553(a) to

the extent that they are applicable.”); Legree, 205 F.3d at 727.

Because Dillon does not indicate that courts must consider those

factors on the record, it is not inconsistent with Legree.

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 3.

Finally, we find unavailing Smalls’ reliance on out-of-

circuit cases. See United States v. Howard, 644 F.3d 455, 459-

61 (6th Cir. 2011) (holding district court must provide some

reasoning when considering a sentence modification under

§ 3582(c)(2)); United States v. Burrell, 622 F.3d 961, 964 (8th

Cir. 2010) (same); United States v. Marion, 590 F.3d 475, 477-78

(7th Cir. 2009) (same). Those cases did not come in the wake of

contrary circuit precedent like Legree, or indicate that Gall,

Dillon, or any other Supreme Court case subsequent to Legree

required the result reached. Thus, the cases on which Smalls

relies do not support his argument that we are no longer bound

by Legree.

We therefore conclude that neither Gall nor Dillon

constitutes superseding Supreme Court precedent that would

permit us to ignore Legree.

IV.

Because Legree governs and the facts of Smalls’ case fail

to overcome its presumption that, absent a contrary indication,

a court has considered the relevant factors in deciding a

§ 3582(c)(2) motion, we hold the district court’s explanation

sufficient. Accordingly, the judgment of the district court is

AFFIRMED.

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