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)).
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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
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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
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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]
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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.
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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
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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).
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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
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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
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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.
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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").
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II. Conclusion
For the foregoing reasons, the order of the district
court denying Fanfan's motion for reconsideration is affirmed.
Affirmed.
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