REVISED JUNE 23, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2009
No. 08-30775 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LARRY W DOUBLIN
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:
Larry W. Doublin challenges the district court’s ruling that, in a sentence-
reduction proceeding under 18 U.S.C. § 3582(c)(2) (authorizing limited
discretionary sentence reductions), the sentence cannot be reduced below the
minimum advisory sentence in the Sentencing Guidelines. AFFIRMED.
I.
In 1996, Doublin was both convicted of, inter alia, distribution of crack
cocaine and sentenced to 292 months’ imprisonment–the minimum sentence
possible under the then-mandatory guidelines. Subsequently, United States v.
No. 08-30775
Booker, 543 U.S. 220 (2005), held the guidelines advisory only. On the other
hand, Booker was not held to be retroactive.
In 2007, the United States Sentencing Commission amended the
guidelines. Generally, it reduced the base offense levels for crack cocaine
offenses by two, in order to reduce the sentencing disparity between crack and
powder cocaine offenses; and it made these guidelines apply retroactively.
As a result, the district court, sua sponte, reviewed prisoners whose
sentences might be eligible for a reduction as a result of these amendments and
determined Doublin to be among their number. Pursuant to the amended
guidelines, Doublin had a guideline sentencing range of 235 to 293 months of
imprisonment. The district court appointed the federal public defender to
represent Doublin, notified the parties it intended to resentence him to the
minimum sentence under the amended guidelines, and instructed them to file
any objections within 60 days.
In response, Doublin urged the district court to impose a sentence below
the new guideline minimum. Along that line, relying upon United States v.
Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007), Doublin contended Booker applied
to resentencings under 18 U.S.C. § 3582(c)(2), rendering advisory the not-below-
the-new-guideline-minimum limitations imposed by Guideline § 1B1.10.
Therefore, the district court could, Doublin urged, consider non-guidelines
factors and impose a sentence below the guideline minimum.
The Government opposed that position, noting: 18 U.S.C. § 3582 requires
reductions to be “consistent with . . . applicable policy statements issued by the
Sentencing Commission”; and the applicable policy statement, Guideline §
1B1.10(b)(2)(A), prohibits reductions “to a term that is less than the minimum
of the amended guideline range”. Accordingly, the Government urged, 18 U.S.C.
§ 3582 and Guideline § 1B1.10(b)(2)(A) together bar a district court from
reducing a sentence below the guideline minimum.
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The district court agreed with the Government, rejected Doublin’s Booker
contention, and sentenced him to the minimum sentence permitted by the
amended guidelines. The amended judgment to that effect was entered on 24
July 2008.
II.
Although the district court’s decision whether to reduce a sentence is
reviewed for abuse of discretion, e.g., United States v. Townsend, 55 F.3d 168,
170 (5th Cir. 1995), its “interpretation or application of the Guidelines [is
reviewed] de novo”. United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008).
Accordingly, we review de novo the district court’s conclusion that it could not
reduce Doublin’s sentence below the guideline minimum.
District courts are allowed by 18 U.S.C. § 3582 to reduce a sentence under
certain conditions and subject to various limitations. A sentence may be reduced
when it is for “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). As part of this reduction, the district court must consider the
sentencing factors provided in 18 U.S.C. § 3553 and may reduce the sentence
only “if such a reduction is consistent with applicable policy statements issued
by the Sentencing Commission”. 18 U.S.C. § 3582(c)(2).
These sentence reductions are governed by the policy statement in the
above-referenced Guideline § 1B1.10. It provides: in reducing sentences that fell
within the guideline range when originally imposed, “the court shall not reduce
the . . . term of imprisonment . . . to a term that is less than the minimum of the
amended guideline range”. U.S.S.G. § 1B1.10(b)(2)(A) (emphasis added).
Accordingly, under Guideline § 1B1.10, made mandatory by 18 U.S.C. § 3582, a
district court cannot impose a sentence below the guideline range.
Having determined the mandatory guidelines regime violated the Sixth
Amendment, Booker excised 18 U.S.C. § 3553(b)(1), which made the guidelines
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mandatory, and thereby rendered them advisory only. As he did in district
court, Doublin urges Booker applies to 18 U.S.C. § 3582 reductions as well, so
that Guideline § 1B1.10’s limitation is advisory only and the district court could
impose a below-guideline-range sentence.
Although this is an issue of first impression in our court, numerous other
circuits have considered it. Of the nine to consider the issue, the First through
Fourth, Seventh, Eighth, Tenth, and Eleventh have rejected Booker’s application
to sentence reductions under 18 U.S.C. § 3582, and have held the Guideline §
1B1.10 limitation to be mandatory. See United States v. Fanfan, 558 F.3d 105
(1st Cir. 2009); United States v. Savoy, No. 08-4900-cr, 2009 WL 1457976 (2d Cir.
27 May 2009); United States v. Doe, 564 F.3d 305 (3d Cir. 2009); United States
v. Dunphy, 551 F.3d 247 (4th Cir. 2009); United States v. Cunningham, 554 F.3d
703 (7th Cir. 2009); United States v. Starks, 551 F.3d 839 (8th Cir. 2009); United
States v. Rhodes, 549 F.3d 833 (10th Cir. 2008); United States v. Melvin, 556
F.3d 1190 (11th Cir. 2008).
Only the Ninth Circuit has held that, for an 18 U.S.C. § 3582(c)(2)
resentencing, district courts can reduce the sentence below the amended
guideline range. Hicks, 472 F.3d at 1172 (“Mandatory Guidelines no longer
exist, in this context or any other.”). Hicks, relied upon by Doublin in district
court, was decided, however, prior to the 2008 amendments to Guideline §
1B1.10, barring any reduction below the amended guideline minimum. (The
basis for the decision in Hicks is not, however, necessarily affected by these
amendments. See Hicks, 427 F.3d at 1172 (“[T]o the extent that the policy
statements would have the effect of making the Guidelines mandatory . . . they
must be void”.).)
To the extent Hicks is not distinguished by the subsequent amendments
to Guideline § 1B1.10, we find it unpersuasive. For the reasons that follow, we
join the nearly unanimous position of our sister circuits in holding Booker does
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not alter the mandatory character of Guideline § 1B1.10's limitations on
sentence reductions. Accordingly, the district court correctly ruled it could not
reduce Doublin’s sentence below the minimum provided in the amended
guidelines.
Booker mandates the guidelines are advisory in full sentencings (and,
hence, in full resentencings); but, it is undisputed that a reduction under 18
U.S.C. § 3582 does not constitute a full resentencing. Guideline § 1B1.10(a)(3)
provides that “proceedings under 18 U.S.C. § 3582(c)(2) . . . do not constitute a
full resentencing of the defendant”. As the Tenth Circuit noted in Rhodes, 549
F.3d at 840, “there are clear and significant differences between original
sentencing proceedings and sentence modification proceedings”. These
differences explain why Booker does not affect Guideline § 1B1.10.
As an initial matter, the concerns at issue in Booker do not apply in an 18
U.S.C. § 3582(c)(2) proceeding. Quoting Apprendi v. New Jersey, 530 U.S. 466,
490 (2000), Booker noted that any “fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt”. Booker, 543 U.S. at 231 (emphasis added).
Section 3582(c)(2) proceedings do not, of course, involve sentence increases.
“[T]he limits § 3582(c)(2) and U.S.S.G. § 1B1.10 impose on the extent of
reductions are, at most, the equivalent of mandatory minimum sentences, which
the Sixth Amendment permits within an otherwise-authorized sentencing
range”. Dunphy, 551 F.3d at 253 n.3 (citing Harris v. United States 536 U.S.
545, 566 (2002)).
Furthermore, reductions under 18 U.S.C. § 3582(c)(2) are not mandatory;
this section merely gives the district court discretion to reduce a sentence under
limited circumstances. E.g., Dunphy, 551 F.3d at 252 (“Even before Booker, the
guidelines were not mandatory in § 3582(c) proceedings. Courts are not required
to reduce a sentence.”) (emphasis in original). By referencing the guidelines, the
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No. 08-30775
Sentencing Commission has not reimposed a mandatory guidelines regime;
rather, the guidelines serve merely as a limit on the extent to which a sentence
may be reduced subsequent to its having been imposed previously. (Of course,
in the absence of 18 U.S.C. § 3582(c)(2), a sentence based on a subsequently-
amended guideline could not be reduced to any extent.)
As the Eighth Circuit noted in Starks, 551 F.3d at 842, “[i]n § 3582(c),
Congress sought to limit the authority of a district court to modify a term of
imprisonment”, by requiring any reduction to be consistent with policy
statements issued by the Sentencing Commission. Accordingly, “[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)”. Id.
III.
For the foregoing reasons, the amended judgment is AFFIRMED.
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