UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6244
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR SHEREE JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:06-cr-00158-JRS-1)
Argued: September 23, 2010 Decided: February 4, 2011
Before GREGORY and AGEE, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a dissenting opinion.
ARGUED: Mary E. Maguire, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia, for Appellant. Dana J. Boente, Acting
United States Attorney, Alexandria, Virginia, Olivia N. Hawkins,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellant-Defendant Omar Sheree Jackson appeals the
district court’s denial of a motion for reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2) based upon retroactive
application of Amendment 706 to the United States Sentencing
Guidelines, which altered the drug quantity table set forth in
U.S.S.G. § 2D1.1 to effectively lower the base offense level for
offenses involving crack cocaine by two levels. Jackson argues
on appeal that the district court’s failure to articulate his
rationale in greater detail amounts to an abuse of discretion.
Defendant advocates for remand to the district court for further
explanation. For the reasons stated herein, we affirm the
district court.
I.
Jackson entered a straight-up guilty plea to the single
offense charged in the Bill of Indictment, namely, a violation
of 21 U.S.C. § 841. The Indictment alleged that Defendant was
responsible for possession with intent to distribute five (5)
grams or more of cocaine base.
Jackson’s sentencing hearing was held on November 1, 2006.
Defendant unsuccessfully moved for a downward variance based
upon the disparity between the crack cocaine and cocaine powder
guidelines. (J.A. 69) Jackson was sentenced to 104 months
3
imprisonment, which fell within the then-applicable advisory
sentencing guideline range of 92 to 115 months. (J.A. 4, 9, 70)
As a result of Amendment 706, Jackson sought a reduction of
sentence pursuant to 18 U.S.C. § 3582(c)(2). The Government
conceded Jackson’s eligibility for relief but opposed Jackson’s
motion on multiple grounds. (JA 23-29) The district court denied
relief and explained:
“In reaching its conclusion, the Court has considered
the factors set forth in 18 U.S.C. § 3553(a) and
United States Sentencing Guidelines § 1B1.10 cmt.
application n. 1 (B), including public safety
considerations and post-sentencing conduct.”
(JA 31)
Jackson filed a timely appeal. Our jurisdiction arises out
of 18 U.S.C. § 3742. See United States v. Legree, 205 F.3d 724,
727 (4th Cir. 2000) (appeals of § 3582 (c)(2) rulings are
governed by 18 U.S.C. § 3742(a)(1)); United States v. Bowers,
615 F.3d 715, 722-23 (6th Cir. 2010).
II.
The district court’s decision denying Defendant’s motion
pursuant to 18 U.S.C. § 3582(c)(2) seeking a sentence reduction
is reviewed for an abuse of discretion. See United States v.
Goines, 357 F.3d 469, 478 (4th Cir. 2004).
4
III.
In this case, we are asked to determine whether the
district court abused its discretion in finding that the
Defendant was not entitled to a reduction of sentence according
to the factors set forth in 18 U.S.C. § 3553(a) and other
relevant law. Jackson contends that meaningful appellate review
is impossible given the “sparse record” and the district court’s
“abbreviated order.” Accordingly, we first consider generally
the requisite level of explanation required to justify the
denial of a Section 3582 motion.
Section 3582(c)(2), which supplies the statutory authority
for the relief sought here, establishes an exception to the
general rule of finality that governs criminal judgments of
conviction. See Dillon v. United States, 130 S. Ct. 2683, 2690
(2010); 18 U.S.C. § 3582(b). Accordingly, we emphasize that
proceedings to modify sentence under Section 3582 are limited in
nature and, therefore, are not intended to be full
resentencings. As the Supreme Court recently explained in
Dillon, “Section 3582(c)(2)'s text, together with its narrow
scope, shows that Congress intended to authorize only a limited
adjustment to an otherwise final sentence and not a plenary
resentencing proceeding.” Dillon, 130 S. Ct. at 2691. Like
Section 3582, U.S.S.G. § 1B1.10(a)(3) expressly identifies the
same limitation, namely, that proceedings under 18 U.S.C.
5
§ 3582(c)(2) and this policy statement do not constitute a full
resentencing of the defendant. U.S.S.G. § 1B1.10(a)(3). In
addition, as Dillon makes clear, Section 3582(c)(2) proceedings
“do not implicate the interests identified in Booker,” because
Booker involved application of the guidelines at an original
sentencing. Dillon, 130 S. Ct. at 2692; Bowers, 615 F.3d at 727.
As a result, our Section 3582(c)(2) analysis is limited to
this two-step inquiry: “A court must first determine that a
reduction is consistent with [§]1B1.10 before it may consider
whether the authorized reduction is warranted, either in whole
or in part, according to the factors set forth in § 3553(a).” 1
Dillon, 130 S. Ct. at 2691.
1
Under 18 U.S.C. § 3553(a), “[t]he court, in determining
the particular sentence to be imposed, shall consider –
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available
(4) the kind of sentence and the sentencing range
established for –
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines . . .
(5) any pertinent policy statement –
(Continued)
6
Prior to Dillon, we held in United States v. Legree, that
in deciding a Section 3582(c)(2) motion, Section 1B1.10(b) of
the Sentencing Guidelines does not require the district court to
engage in this prescribed two-pronged analysis on the record.
See Legree, 205 F.3d at 728-30 (affirming denial of § 3582(c)(2)
motion for sentence reduction based upon U.S.S.G., Am. 505). We
also held that due process does not require appointment of
counsel beyond direct appeal or an evidentiary hearing as “[a]
motion pursuant to [§]3582(c) is not a do-over of an original
sentencing proceeding where a defendant is cloaked in rights
mandated by statutory law and the Constitution.” Legree, 205
F.3d at 728-29. We further held that under certain
circumstances, a presumption existed that the sentencing judge
considered all pertinent matters in denying relief. Id. We
stated:
“A court need not engage in ritualistic
incantation in order to establish its consideration of
a legal issue. It is sufficient if … the district
(A) issued by the Sentencing Commission . . . subject
to any amendments made to such policy statement
by act of Congress . . .
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a).
7
court rules on issues that have been fully presented
for determination. Consideration is implicit in the
court’s ultimate ruling.”
Legree, 205 F.3d at 728-29 (quoting United States v. Davis, 53
F.3d 638, 642 (4th Cir. 1995)). More specifically, where the
motion and legal issues are adequately presented, and absent a
contrary indication, we are to presume that the district court
considered all pertinent matters in arriving at a decision. 2 Id.
Our decision in Legree remains good law as we discern
nothing from our reading of Dillon to cast doubt upon the
reasoning adopted in Legree. In sum, due to the limited nature
of the proceedings, Section 3582 determinations are not subject
to the same kind of scrutiny as imposition of an original
sentence. Dillon, 130 S. Ct. at 2691-93; United States v.
Dunphy, 551 F.3d 247, 252-53 (4th Cir. 2009) (Booker had no
direct effect on § 3582(c)(2)); Legree, 205 F.3d at 729; see
also United States v. Watkins, ___ F.3d ___, 2010 WL 4321570, *3
(6th Cir. 2010)(“Section 3582(c)(2) proceedings are not full
resentencings, and we do not require the district court to
articulate its analysis of each sentencing factor as long as the
2
The legal issues may be deemed adequately presented where
the district judge is fully aware of and familiar with the
record and the Defendant, where the sentencing judge also
presided over the jury trial, and where some of the same factual
and legal issues were presented at the time of original
sentencing. Legree, 205 F.3d at 729.
8
record demonstrates that the court considered the relevant
factors.”)(citing United States v. Curry, 606 F.3d 323, 327 (6th
Cir. 2010)).
IV.
We conclude that the district court’s explanation comports
with our holding in Legree. Here, the judge exercising
discretion under Section 3582(c)(2) presided over Jackson’s
original sentencing (post-Booker) and, thus, entertained written
and oral arguments made by both the prosecution and defense
concerning the § 3553(a) factors and an appropriate sentence.
Indeed, just two (2) years earlier, this same trial judge was
confronted with the crack cocaine – powder disparity argument
during the original sentencing yet, after considering the
§ 3553(a) factors, he declined to vary the sentence downward
from the low end of the guidelines. Instead, the judge imposed a
sentence twelve (12) months greater than the low end of the
advisory guideline range. This exercise of discretion
demonstrates that the district court was intimately familiar
with Jackson’s case.
In addition, the issues relevant to Jackson’s post-
conviction motion were adequately presented to the district
court. In resolving Jackson’s § 3582 motion, the court directed
the Probation Office 1) to re-calculate the defendant’s
9
sentencing range under the Guidelines, as amended; and 2) to
provide a copy of that re-calculated range, as well as the
defendant’s original pre-sentence report and worksheets, to the
Court, the United States Attorney’s Office, and the Office of
the Federal Public Defender. (JA 14) Similarly, upon receipt of
defendant’s motion, the court required the Government to file a
written response to Jackson’s motion. Consistent with the
Policy Statement and relevant statutory criteria, the Government
was specifically asked to address any “educational or vocational
training” or “treatment for substance abuse or physical or
mental health” that Jackson may have received in prison, as well
as Jackson’s “conduct after sentencing, including his compliance
with the rules of the institution(s) in which he has been
incarcerated” and “[a]ny relevant considerations of public
safety.” (JA 19-20) In other words, the district court sought to
marshal the relevant information and provide the parties with an
opportunity to present their respective factual and legal
arguments.
Jackson’s Section 3582(c)(2) motion emphasized adjustment
to incarceration and highlighted various programs Jackson had
10
participated in and successfully completed. 3 The Government’s
opposition identified the following areas of concern:
(a)Defendant’s noncompliance has continued while
incarcerated; (b) he poses a significant public safety
threat; and (c) this Court found a sentence at the low
end of the then-applicable advisory guideline range
insufficient, and a sentence within an even lower
guideline range would fail to address the factors
listed in 18 U.S.C. § 3553.
(JA 25) In its filing, the Government described a lengthy
history of substance abuse, aggressive and violent behavior, and
criminal activity involving the possession and use of firearms. 4
(JA 38-52, 46-47, 66-71 / PSR ¶¶22,23,27,38,47) On this record –
anything but sparse - we find that the issues were adequately
presented to the district court.
3
Jackson participated in and completed: (1) a drug
awareness program; (2) a coping with anxiety program; and (3) an
anger management class. (JA 22) Jackson was also a regular
participant in the prison’s walking and running club. (Id.)
Jackson suggests that, at minimum, the district court should
have addressed Defendant’s accomplishments since being
incarcerated and explained why his post-sentencing efforts
towards rehabilitation were not entitled to more weight.
4
In December 2000, Jackson was convicted in federal court
of illegal possession of an AK-47 assault rifle with a loaded
30-round magazine. (JA 46-47) Jackson was on supervised release
for his federal firearms offense when charged in this case.
While on supervised release, Jackson tested positive for the
presence of illegal controlled substances on three (3) different
occasions. (JA 47) The underlying facts of the instant federal
conviction are likewise troubling in that, at the time of
arrest, Jackson was uncooperative, in possession of a .40
caliber handgun, and had admitted to recent marijuana use. (JA
27, 46-47)
11
Accordingly, in the absence of any contrary indication, we
may presume that the district court considered all of the
materials before it in rendering a decision. The district court
expressly noted its consideration of “Jackson’s Motion, the
United States’ Response, and the United States Probation
Office’s Report.” (JA 31) Likewise, the district judge
affirmatively stated that the Section 3553(a) factors and
Section 1B1.10 criteria, including public safety considerations
and post-sentencing conduct, were considered. (Id.) Because no
contrary indication exists, we conclude that the presumption
adopted in Legree applies here as well. Therefore, the district
court’s failure to identify expressly which of the various bases
asserted by the Government may have been deemed determinative
with respect to this individual case is no cause for remand. 5
V.
Finally, Jackson suggests it was improper for the district
court to consider conduct of the Defendant that occurred prior
5
The district court determined at the original sentencing
that Jackson’s advisory guidelines sentence adequately addressed
the § 3553(a) factors and, therefore, was “sufficient but not
greater than necessary” to fulfill the statute’s sentencing
purposes despite the crack cocaine – powder disparity. See 18
U.S.C. § 3553(a). The same analysis is implicit in the denial
of Jackson’s § 3582(c)(2) motion.
12
to the underlying federal offense in electing to deny § 3582
relief. In effect, Jackson asks the court to limit its
consideration to post-sentencing conduct and his overall
adjustment to incarceration. Under U.S.S.G. § 1B1.10, in
evaluating whether to authorize a reduction of sentence pursuant
to 18 U.S.C. § 3582 based upon a retroactive amendment to the
guidelines, a district court must (“shall”) consider both the 18
U.S.C. § 3553(a) factors and “the nature and seriousness of the
danger to any person or the community that may be posed by a
reduction in the defendant’s term of imprisonment ....” U.S.S.G.
§ 1B1.10(b), cmt. n.1 (B)(ii) (public safety consideration). In
addition, the court “may consider the post-sentencing conduct of
the defendant.” Id., cmt.n.1(B)(iii). There is no language
within Section 3582 that expressly restricts the information the
court may consider in reaching its discretionary decision. 6
Therefore, we do not construe the applicable authorities as
preclusive in any way. That is, the court is not precluded from
relying on any particular information within the record merely
because certain other matters are expressly identified as
relevant.
6
Section 1B1.10(a)(1) makes clear that the district court
is faced with a discretionary decision to reduce defendant’s
sentence pursuant to 18 U.S.C. § 3582(c)(2).
13
VI.
We do not find any abuse of discretion as the record, in
its entirety, more than adequately justifies the district
court’s decision not to reduce Jackson’s sentence. For these
reasons, we affirm the district court’s denial of Defendant’s
Section 3582 motion for reduction of sentence.
AFFIRMED
14
GREGORY, Circuit Judge, dissenting:
For the reasons I articulated in United States v. Robinson,
__ F.3d __ (4th Cir. 2011), I dissent. Here as in there, I
believe courts’ general duty to explain their reasoning applies
to this case, is supported by case law and statute, and enhances
appellate review. Unlike the majority, I would not “presume
that the district court considered all of the materials before
it in rendering a decision.” Slip op. at 12. Nor do I find
much comfort in the fact that the resentencing judge here also
presided over the original jury trial and sentencing. Slip op.
at 8 n.2.
Rather, I would continue to find that a judge “must explain
his conclusion that an unusually lenient or an unusually harsh
sentence is appropriate in a particular case with sufficient
justifications.” Gall v. United States, 552 U.S. 38, 46 (2007).
“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 own legal
decisionmaking authority.” United States v. Carter, 564 F.3d
325, 328 (4th Cir. 2009) (citations omitted). Requiring courts
to provide at least some basic individualized explanation “not
only ‘allow[s] for meaningful appellate review’ but it also
‘promote[s] the perception of fair sentencing.’” Carter, 564
F.3d at 328 (Gall, 128 S. Ct. at 597). These benefits are
15
especially germane here, where the resentencing is retroactively
correcting a structural flaw in the prior crack-cocaine ratio.
For these reasons, I must respectfully dissent.
16
United States v. Jackson
Court: Court of Appeals for the Fourth Circuit
Date filed: 2011-02-04
Citations: 410 F. App'x 706
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