UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6461
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALBERT EUGENE HARDY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00010-MR-1)
Submitted: November 17, 2016 Decided: December 5, 2016
Before TRAXLER, KING, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Jill Westmoreland Rose, United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Eugene Hardy, Jr., appeals from the district court’s
order granting in part and denying in part his 18 U.S.C.
§ 3582(c)(2) (2012) motion for a sentence reduction. On appeal,
he contends that the district court erred in failing to consider
relevant 18 U.S.C. § 3553(a) factors and analyze them explicitly
on the record. We agree, and thus, we vacate and remand for
further proceedings.
After Hardy originally pled guilty, the probation officer
prepared a presentence report (PSR), calculating an offense
level of 31 and finding that Hardy’s criminal history category
was V. Hardy’s Sentencing Guidelines range was 168-210 months
in prison. However, because Hardy was also subject to a
statutory mandatory minimum term of 20 years in prison under 21
U.S.C. § 841(b)(1)(A) (2012), and pursuant to the 21 U.S.C.
§ 851 (2012) notice filed by the Government, the PSR recognized
that Hardy’s Guidelines range was 240 months under U.S.
Sentencing Guidelines Manual § 5G1.1(b) (2006).
The Government moved for a downward departure based upon
Hardy’s substantial assistance under USSG § 5K1.1. The
Government recommended a downward departure to the Guidelines
range of 168-210 months in prison. The district court granted
the motion for a downward departure and sentenced Hardy to 168
months in prison.
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In 2015, Hardy moved for a reduction in sentence under
§ 3582(c)(2) (2012), arguing that he was eligible for immediate
relief under Amendments 750 and 780. In Hardy’s motion, he
described the operation of USSG §§ 1B1.10 and 5G1.1 and
concluded that he was eligible for a term of imprisonment as low
as 84 months. Regarding the appropriate sentence to be imposed,
the only reasoning Hardy provided was the assertion that he had
a clean disciplinary record in prison and that he had completed
numerous education programs and work assignments while in
prison.
The probation officer prepared a supplemental PSR,
concluding that, due to the amount of crack cocaine, Hardy was
ineligible for a reduction under Amendments 750 and 780.
However, the probation officer determined that Hardy would be
eligible for a reduction under Amendment 782. Specifically,
Hardy’s offense level would be reduced to 29, resulting in a
Guidelines range of 140 to 175 months in prison. Noting that
USSG § 1B1.10(c) instructs a court to disregard § 5G1.1 where a
defendant received a substantial assistance departure, the
probation officer determined that Hardy was eligible for a
reduction in his sentence to 98 months in prison, or a reduction
to 70% of the low end of the amended Guidelines range,
representing a reduction comparable to the reduction Hardy
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received from the Guidelines term of 240 months as a result of
the Government’s original motion for a downward departure.
The Government agreed with the PSR and consented to the
full extent of the reduction. The district court granted
Hardy’s motion for a reduced sentence, but limited the reduction
to 140 months in prison. The court noted that Hardy’s sentence
was originally enhanced as a result of the § 851 notice and his
cooperation garnered a reduction to the low end of the
Guidelines range, without consideration of the § 851 notice.
The district court stated that Hardy’s reduced sentence was
likewise at the low end of the amended Guidelines range without
consideration of the § 851 enhancement. The court filled out a
form, stating that the Guidelines range both before and after
the amendment was 240 months, the statutory mandatory minimum.
On appeal, we vacated Hardy’s sentence and remanded for
further consideration. We noted that the district court failed
to explicitly “specify the extent of the permissible reduction”
to 98 months. We also stated that the district court
incorrectly concluded that the amended Guidelines range was 240
months, even though the Guidelines specifically direct that “the
amended guideline range shall be determined without regard to”
the statutory mandatory minimum. USSG § 1B1.10(c). For these
reasons, we concluded that the district court did not appreciate
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the scope of its authority under § 3582(c)(2). United States v.
Hardy, 640 F. App’x 233, 236-37 (4th Cir. 2016) (No. 15-6966).
On remand, on February 10, 2016, Hardy filed a supplemental
sentencing memorandum, again requesting a sentence of 98 months
in prison. This memorandum was much more detailed regarding the
applicable factors to be considered. Hardy noted that the
Government had reiterated its consent to a 98-month sentence at
oral argument on appeal. Hardy argued that the Sentencing
Commission determined that “cooperating defendants deserve
special treatment when it comes to sentence reductions under
§ 3582(c)(2).” According to Hardy, the Commission decided that
the best way to effectuate that policy goal was to remove
consideration of the mandatory minimum (and thus any affect from
the § 851 notice) from the sentencing calculus. Hardy averred
that the amended Guidelines range of 140 to 175 months was a
“rough approximation of [a sentence] that might achieve
§ 3553(a)’s objectives” and that this Guidelines range did not
account for Hardy’s substantial assistance. Hardy argued for
the full extent of the permissible reduction, contending that he
had an exemplary prison record and the Government would likely
not file an § 851 notice in Hardy’s case were he prosecuted
under current policy.
Hardy also stated that, while his criminal history was
lengthy, his most serious conviction (the predicate drug felony)
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occurred in 1990, more than 17 years before the offense in this
case, and several convictions occurred in his youth. Hardy
argued, for the first time, that two of his convictions were
erroneously assigned points. He conceded that he was barred
from challenging the calculation of his criminal history
category at this late date, but he noted the issue was a factor
to consider under § 3553. Finally, Hardy stated that a
co-defendant, for whom Hardy worked, was eventually sentenced
within the amended Guideline range of 84 to 105 months, which
created a sentencing disparity in his case. The Government did
not file a response.
On March 9, 2016, the district court granted the motion for
a reduction in sentence and again entered a sentence of 140
months. The court provided a factual background and noted that
the issue was ripe for review, without recognizing that Hardy
had filed a supplemental sentencing memorandum on remand. The
court explicitly stated that Hardy was eligible for a sentence
as low as 98 months and averred that it “concluded this
originally, but did not adequately document it.” The court then
noted that, while a defendant’s eligibility for a sentence
reduction must be determined without regard for the mandatory
minimum sentence, the § 851 notice can still be considered in
analyzing the § 3553 factors. In so doing, the court again
reasoned that, without consideration of the § 851 notice, a
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defendant could be sentenced to a “lower sentence because of a
prior felony drug conviction that served as the basis for the
§ 851 notice.”
The court claimed that “this issue” (presumably the
interplay between an § 851 notice, a substantial assistance
departure, and a § 3582 reduction) was not addressed by Hardy’s
counsel. The court continued that “the third step of the Dillon *
analysis was simply ignored and replaced with a formulaic
request for the lowest possible sentence for which the Defendant
is eligible, without any further explanation and without any
acknowledgement of the impact of the Defendant’s § 851 Notice.”
The court reasoned that a 140-month sentence reduced Hardy’s
sentence the equivalent of two offense levels, which was the
general intent of Amendment 782 and was in accord with the
§ 3553(a) factors as originally analyzed by the sentencing
court. In addition, the district court stated that, analyzing
the § 3553 factors anew would result in the same sentence. The
court noted that Hardy was responsible for a substantial
quantity of a dangerous drug and that, absent some recognition
* Dillon v. United States, 560 U.S. 817 (2010). The Supreme
Court described the “third” step of the Dillon analysis as
follows: “consider any applicable § 3553(a) factors and
determine whether, in its discretion, the reduction authorized
. . . is warranted in whole or in part under the particular
circumstances of the case.” Id. at 827.
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of the § 851 notice, the resulting sentence would create
sentencing disparities. Hardy timely appealed.
This court “review[s] a district court’s grant or denial of
a § 3582(c)(2) motion for abuse of discretion. . . . But the
question of whether a court ruling on a § 3582(c)(2) motion must
provide an individualized explanation is one of law that [this
court] consider[s] de novo.” United States v. Smalls, 720 F.3d
193, 195 (4th Cir. 2013) (citation omitted). In deciding
whether to grant a motion for a sentence reduction, the district
court must first determine whether the defendant is eligible for
the reduction, consistent with USSG § 1B1.10, p.s., and then
“consider whether the authorized reduction is warranted, either
in whole or in part, according to the factors set forth in
§ 3553(a),” Dillon v. United States, 560 U.S. 817, 826 (2010),
“to the extent that they are applicable,” 18 U.S.C.
§ 3582(c)(2). The court may also consider “post-sentencing
conduct of the defendant that occurred after imposition of the
term of imprisonment” in determining whether, and to what
extent, a sentence reduction is warranted. USSG § 1B1.10, p.s.,
cmt. n.1(B)(iii).
In United States v. Legree, 205 F.3d 724 (4th Cir. 2000),
we considered the adequacy of a district court’s explanation in
a § 3582(c)(2) proceeding. Although Legree was eligible for a
sentence reduction, the district court denied relief after
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“describing [the] motion, recounting the history of Amendment
505, and observing that a court is not required to reduce a
sentence under the Amendment.” Id. at 728. Legree argued that
“the district court erred by neglecting to undertake a two-prong
analysis on the record when considering the motion for reduction
of sentence,” id. at 727-28, and in failing to “state on the
record with sufficient specificity its reasons for denying the
motion,” id. at 729 n.3. We disagreed, holding that, “absent a
contrary indication,” it is presumed that the district court has
considered the § 3553(a) factors and other “issues that have
been fully presented for determination,” and thus “[n]o greater
specificity was required.” Id. at 728-29 & n.3 (internal
quotation marks omitted).
We concluded that the case had been fully presented for
determination because the same district court that had denied
Legree’s § 3582(c)(2) motion had presided over his sentencing
hearing, during which it had considered several mitigating
factors. Id. at 729. We deemed it significant that Legree had
not presented any additional mitigating factors when he
submitted his sentence reduction motion. Id.; see also Smalls,
720 F.3d at 195-97, 199 (rejecting challenge to sufficiency of
explanation when court reduced sentence to top of amended
Guidelines range, stating only that it had considered § 3553(a)
factors). In Smalls, this Court reemphasized “that, in the
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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.” 720 F.3d at 196.
We conclude that here there is, in fact, evidence that the
court neglected to consider relevant factors. Because Hardy
presented plausible arguments as to the propriety of considering
the § 851 notice as well as the application of the § 3553
factors and because the district court did not acknowledge these
arguments and, in fact, stated that no such arguments had been
made, the district court either overlooked Hardy’s filing or
made a mistake of fact in reading it. In addition, because the
judge is not the same judge who presided over Hardy’s original
sentencing and because the memorandum addressed new issues not
addressed at sentencing or in the original sentencing memorandum
in the § 3582 motion, we find that the failure to provide more
detailed reasoning prevents us from determining whether there
was an abuse of discretion.
Thus, we vacate and remand to the district court for
further proceedings consistent with this opinion. We deny
Hardy’s request for the assignment of a different judge on
remand. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
VACATED AND REMANDED
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