United States v. Fanfan

United States Court of Appeals
For the First Circuit

No. 08-2062

UNITED STATES OF AMERICA,

Appellee,

v.

DUCAN FANFAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella, and Boudin, Circuit Judges.

J. Hilary Billings, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

March 4, 2009
 TORRUELLA, Circuit Judge. After much litigation,

Appellant Ducan Fanfan's sentence for a drug offense involving

crack cocaine became final. United States v. Fanfan, 468 F.3d 7

(1st Cir. 2006), cert. denied, 549 U.S. 1300 (2007). On July 9,

2008, Fanfan sought an adjusted sentence under 18 U.S.C.

§ 3582(c)(2) in light of a subsequent amendment to the guidelines

that effectively reduced the guideline range for certain crack

cocaine offenders. U.S.S.G. Amendment 706 (effective Nov. 1,

2007). The district court granted this request and imposed a

sentence within the new guideline range. On the same day that the

district court allowed his request, Fanfan filed a motion for

reconsideration, asking the court to instead impose a variant

sentence below the new guideline range based on the district

court's Kimbrough discretion.1 The district court refused and, in

citing another district court decision, United States v. Julien,

550 F. Supp. 2d 138 (D. Me. 2008), indicated that it did not

believe it had the legal authority to impose such a variant

sentence in the § 3582(c)(2) context. Fanfan appeals this

conclusion. After careful consideration, we affirm.

1
As the Supreme Court has recently explained, "the point of
Kimbrough" was to recognize "district courts' authority to vary
from the crack cocaine Guidelines based on policy disagreement with
them, and not simply based on an individualized determination that
they yield an excessive sentence in a particular case." Spears v.
United States, 129 S. Ct. 840, 843 (2009) (emphasis in original);
Kimbrough v. United States, 128 S. Ct. 558, 575 (2007)).

-2-
 I. Discussion

The government contends that two independent reasons make

abuse of discretion our standard of review. First, Fanfan

challenges a decision made in the context of § 3582(c), to which

abuse of discretion review applies. United States v.

Rodríguez-Peña, 470 F.3d 431, 432 (1st Cir. 2006) (per curiam).

Second, Fanfan challenges a denial of a motion for reconsideration,

which we generally review for abuse of discretion. See Global

NAPs, Inc. v. Verizon New Eng., Inc., 489 F.3d 13, 25 (1st Cir.

2007). But since Fanfan charges the district court with

misconstruing its legal authority, our review is effectively de

novo. See United States v. Caraballo, 552 F.3d 6, 8-9 (1st Cir.

2008) (stating, in the § 3582(c)(2) context, that "[a] material

error of law is perforce an abuse of discretion" and that since

appellant challenged the meaning of § 3582(c)(2), he presented

"purely a question of statutory interpretation," in which "the

court's answer . . . engenders de novo review"); see also United

States v. Melvin, F.3d ___, ___, No. 08-13497, 2009 WL 236053, at

*2 (11th Cir. Feb 3, 2009) ("We review de novo the district court's

determination of the scope of its authority to reduce a sentence

under 18 U.S.C. § 3582.").

We also choose not to limit our review in this case based

on the fact that Fanfan's challenge arose on a motion for

reconsideration. It is true that Fanfan could have raised his

-3-
Kimbrough argument in his initial motion. And we have said, "[t]he

presentation of a previously unpled and undeveloped argument in a

motion for reconsideration neither cures the original omission nor

preserves the argument as a matter of right for appellate review."

Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir. 2006). But,

in this case, we chose to bypass the government's waiver arguments

because Fanfan presents a question of law likely to recur and

because the district court did confront and resolve the issue

presented. See United States v. Giggey, 551 F.3d 27, 37 (1st Cir.

2008) (en banc) (bypassing waiver due, in part, to need for

clarity).

Turning to the merits, we must determine what authority

the following provision confers on district courts in these

circumstances:

(c) The court may not modify a term of
imprisonment once it has been imposed except
that--
. . .
(2) 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. 994(o), upon motion
of the defendant or the Director
of the Bureau of Prisons, or on
its own motion, the court may
reduce the term of imprisonment,
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

-4-
 policy statements issued by the
Sentencing Commission.

18 U.S.C. § 3582(c)(2). This statute acts as a limited exception

to the final judgment rule by conferring power on the district

court to adjust a final sentence when a particular trigger is met.

See Caraballo, 552 F.3d at 9. Here, Fanfan was able to meet this

trigger because his guideline range was lowered by the Sentencing

Commission pursuant to 28 U.S.C. § 994(o). The district court thus

had authority to adjust the sentence pursuant to this section.

The question presented in this case is the extent of that

power. Fanfan argues that district courts should engage in

resentencing, considering all applicable factors, including their

Kimbrough discretion, to reach a new reasonable sentence. Fanfan

relies on the portion of the section which instructs district court

judges to provide adjustments "after considering the factors set

forth in section 3553(a) to the extent that they are applicable."

We disagree with Fanfan's position, though we do not

agree with all of the government's arguments against that position.

First, the government contends that Fanfan already received his

reduction based on the guideline amendment, and that he now seeks

a reduction based on a Supreme Court decision. Thus, the

government argues, Fanfan's request for Kimbrough relief at a

§ 3582(c)(2) proceeding must fail because of our precedent holding

that "§ 3582(c) only allows a reduction where 'the Sentencing

Commission, not the Supreme Court, has lowered the [sentencing]

-5-
range.'" Rodríguez-Peña, 470 F.3d at 433 (quoting United States v.

Price, 438 F.3d 1005, 1007 (10th Cir. 2006)). But, here, Fanfan

does not contend that Kimbrough triggered the application of

§ 3582(c)(2). Rather, it is clear that the Sentencing Commission's

amendment to the crack cocaine guidelines triggered the statute.

Fanfan simply argues that Kimbrough should be applicable to the

calculation of a new sentence, once the statute is triggered.

Neither Rodríguez-Peña, nor any of our other decisions, have

resolved the precise question regarding the scope of the district

court's authority to impose a sentence below the new guideline

range under § 3582(c)(2). See Caraballo, 552 F.3d at 12 n.4

(taking "no view on the question of whether a defendant who

satisfies the threshold requirement of section 3582(c)(2) is

entitled to a full resentencing").

Second, the government suggests that allowing full

resentencing would be inconsistent with our holding that Booker2 is

not applied retroactively on collateral review. See Cirilo-Muñoz

v. United States, 404 F.3d 527, 533 (1st Cir. 2005).3 But, Fanfan

does not seek retroactive application of Booker or Kimbrough to a

2
Of course, Booker instructed district courts to read the
Sentencing Guidelines as "effectively advisory," thereby permitting
variant sentences below the bottom of the guideline range, even
where there was no grounds for a departure under the guidelines.
United States v. Booker, 543 U.S. 220, 245 (2005).
3
We have not addressed, and need not here address, the
retroactivity of Kimbrough.

-6-
final judgment. Rather, he seeks the application of these

precedents to adjustments made pursuant to § 3582(c)(2). This

question requires us to construe the terms of § 3582(c)(2), and is

analytically distinct from the question of retroactivity, which

asks whether a decision announced "'watershed rules of criminal

procedure implicating the fundamental fairness and accuracy of the

criminal proceeding.'" Id. at 532 (quoting Schriro v. Summerlin,

542 U.S. 348, 352 (2004)). To be sure, allowing Booker to be

applied to a defendant whose final sentence is adjusted based on a

qualifying guideline amendment might create some tension with our

retroactivity jurisprudence by allowing only certain defendants to

gain the benefit of Booker. But such a result would not be

inherently unreasonable; Congress might create a regime where those

who must be resentenced for some other reason should be fully

resentenced. As described below, that is not the case here.

The government's final counter-argument is convincing.

Section 3582(c)(2) provides that the district court may reduce the

term of imprisonment, "if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission."

18 U.S.C. § 3582(c)(2). One of the applicable statements of the

Sentencing Commission provides: "Except as provided in subdivision

(B), the court shall not reduce the defendant's term of

imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement

to a term that is less than the minimum of the amended guideline

-7-
range determined under subdivision (1) of this subsection."

U.S.S.G. 1B1.10(b)(2)(A); see also U.S.S.G. 1B1.10, Application

Note 3.4 Thus, Fanfan's claim for additional relief is foreclosed

by the plain language of the applicable guideline, which is

incorporated by reference into the statute which controls the

adjusted sentence. Thus, though § 3582(c)(2) was triggered by the

amendment to the guideline range pursuant to which Fanfan was

sentenced, in this case the statute only authorizes imposition of

an adjusted sentence within the new guideline range.5

Fanfan cites some precedent to argue against this

conclusion. First, Fanfan points to an Eighth Circuit decision

which held that "[w]hen a defendant is eligible for a § 3582(c)(2)

reduction, the district court must consider all relevant statutory

sentencing factors." United States v. Mihm, 134 F.3d 1353, 1355

(8th Cir. 1998) (emphasis in original). That court allowed the use

of a "safety valve" under 18 U.S.C. § 3553(f), even though such

relief would not have been available at the initial sentencing.

4
Subdivision (B) of the relevant guidelines provides an exception
allowing a below guideline sentence where the original term of
imprisonment was below the original guideline range. U.S.S.G.
1B1.10(b)(2)(B). Fanfan's original term of imprisonment was within
the guideline range, so this exception is not applicable here.
5
See also United States v. Jordan, 162 F.3d 1, 5 (1st Cir. 1998)
(interpreting a previous version of U.S.S.G. 1B1.10 to reach a
similar result in ruling that even where § 3582(c)(2) was triggered
by adjustment to a guideline range, that section did not permit a
district court to grant a departure under § 5K2.0 where none was
available at the initial sentencing).

-8-
Id. But the Mihm court did not have the benefit of U.S.S.G.

1B1.10(b)(2)(A), which was added to the guidelines on March 3,

2008, by U.S.S.G. Amendment 712. Further, as described below, the

Eighth Circuit itself did not find Mihm controlling when

considering the exact issue now raised by Fanfan. United States v.

Starks, 551 F.3d 839, 840-43 (8th Cir. 2009) (rejecting, without

citation to Mihm, an argument that Booker required allowing

district court judges to impose adjusted sentences below the

guideline range under § 3582(c)(2)).

Fanfan also points us to a Ninth Circuit decision which

reversed a district court's denial of a request for a further

§ 3582(c)(2) reduction based on Booker. United States v. Hicks,

472 F.3d 1167, 1172 (9th Cir. 2007). But that decision also came

before the change in U.S.S.G. 1B1.10. Id. (stating that "none of

these policy statements is applicable to the question of whether,

after Booker, a court can go below the Guidelines' minimum when

modifying a sentence under § 3582(c)(2)."). Nonetheless, the

subsequent amendment to the guidelines is not sufficient to

distinguish Hicks, since that court also commented that "under

Booker, to the extent that the policy statements would have the

effect of making the Guidelines mandatory (even in the restricted

context of § 3582(c)(2)), they must be void." Id. The Hicks court

thus felt Booker applied to § 3582(c)(2) proceedings, since Booker

"provides a constitutional standard which courts may not ignore by

-9-
treating Guidelines ranges as mandatory in any context." Id. at

1173. The Hicks court relied on Booker's statement, that

"'Congress would not have authorized a mandatory system in some

cases and a nonmandatory system in others, given the administrative

complexities that such a system would create.'" Id. at 1170

(quoting Booker, 543 U.S. at 266). But that is precisely what

Congress did here when it made a narrow exception to the final

judgment rule for sentence adjustments, where such adjustments are

consistent with guideline policy. Thus, we disagree with the Ninth

Circuit's view that Booker mandates that district courts have

discretion to adjust a sentence below the bottom of the new

guideline range at a § 3582(c)(2) resentencing. Even though, as we

explained above, the non-retroactivity of Booker does not bar

Fanfan's argument, Booker also does not compel us to accept his

argument.

Our conclusion is supported by recent decisions from

other circuits. United States v. Cunningham, ___ F.3d ___, ___,

Nos. 08-2091 and 08-2931, 2009 WL 249886, at *5 (7th Cir. Feb. 4,

2009) ("Having chosen to create a modification mechanism, Booker

does not require Congress to grant the district courts unfettered

discretion in applying it."); Melvin, ___ F.3d at ___, 2009 WL

236053, at *3-4 (similarly rejecting the precise argument raised

here by Fanfan); Starks, 551 F.3d at 840-43 (same); United States

v. Dunphy, 551 F.3d 247, 252-56 (4th Cir. 2009) (same); United

-10-
States v. Rhodes, 549 F.3d 833, 837-41 (10th Cir. 2008) (same). As

the Tenth Circuit has explained, "sentence modification proceedings

have a different statutory basis than original sentencing

proceedings." Rhodes, 549 F.3d at 841. "Given the narrow scope of

sentence modification proceedings, there is no concern that a

district court in such a proceeding will make factual findings that

in turn will raise a defendant's sentence beyond the level

justified by 'the facts established by a plea of guilty or a jury

verdict.'" Id. at 840 (quoting Booker, 543 U.S. at 244) (ellipsis

omitted). Thus, Booker's rendering of the guidelines as advisory

is not controlling in "proceedings under § 3582(c)(2), which can

only decrease -- not increase -- the defendant's sentence."

Dunphy, 551 F.3d at 252-53. Put another way, "[a]lthough the

guidelines must be treated as advisory in an original sentencing

proceeding, neither the Sixth Amendment nor Booker prevents

Congress from incorporating a guideline provision as a means of

defining and limiting a district court's authority to reduce a

sentence under § 3582(c)." Starks, 551 F.3d at 842. In sum, we

agree with the Fourth, Seventh, Eighth, Tenth, and Eleventh

circuits and "find the Hicks analysis to be flawed because it fails

to consider two marked characteristics of a § 3582(c)(2)

proceeding, . . . discussed above: (1) this proceeding allows only

for downward adjustment and (2) this proceeding is not a full

resentencing hearing." Dunphy, 551 F.3d at 254.

-11-
 Of course, Fanfan emphasizes that Kimbrough was decided

between his initial sentencing and his adjustment under

§ 3582(c)(2). But, since § 3582(c)(2), read with U.S.S.G.

1B1.10(b)(2)(A), does not permit an adjustment that varies from

the guidelines where the original sentence was within the

guidelines, the district court was correct in finding that it had

no authority to use its newly acquired Kimbrough discretion in this

case.6 Thus, while an adjusted sentence under § 3582(c)(2) must be

made after "considering the factors set forth in section 3553(a),"

a district court acting under § 3582(c)(2) must comply with

U.S.S.G. 1B1.10(b)(2)(A).

6
Fanfan suggests it would be a "great irony" if we allow his
sentence to stand because we view U.S.S.G. 1B1.10 as mandatory,
since in this same case, the district court imposed its previous
sentence under the erroneous belief, rejected in Kimbrough, that it
could not disagree with the policy judgments incorporated into the
crack cocaine guidelines. Though Fanfan's comment on this point
does not squarely raise this issue, it could be read to suggest
that mandatory application of U.S.S.G. 1B1.10(b)(2)(A) is somehow
inconsistent with Kimbrough, since Kimbrough can be read as
allowing district courts to deviate from the guidelines based on
pure policy disagreements. We reject this argument for the same
reason we rejected Fanfan's argument based on Booker. Though
district courts may sentence based on policy disagreements with the
crack cocaine guidelines, they may not do so on the basis of
disagreements with statutes. See Kimbrough, 128 S. Ct. at 573
(recognizing that even though a district court may now disagree
with the disparity in the crack cocaine guidelines, mandatory
minimum sentences imposed by statute must be followed). Thus, even
if a district court were generally similarly permitted to disagree
with the policy judgment incorporated into U.S.S.G. 1B1.10, it
could do not do so here, since that guideline has been incorporated
into § 3582(c)(2). See also Melvin, ___ F.3d at ___, 2009 WL
236053, at *4 (rejecting the argument that "Kimbrough could apply
[in the § 3582 context] even though Booker does not").

-12-
 II. Conclusion

For the foregoing reasons, the order of the district

court denying Fanfan's motion for reconsideration is affirmed.

Affirmed.

-13-