United States v. Gay , 771 F.3d 681 ( 2014 )


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  •                                                                               FILED
    United States Court of Appeals
    PUBLISH                            Tenth Circuit
    UNITED STATES COURT OF APPEALS                   November 12, 2014
    Elisabeth A. Shumaker
    TENTH CIRCUIT                           Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                         No. 13-6247
    ALONDO LAROYNE GAY,
    Defendant - Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE WESTERN DISTRICT OF OKLAHOMA
    (D.C. No. 5:98-CR-00118-D-1)
    Susan M. Otto, Federal Public Defender, Oklahoma City, Oklahoma, for Defendant –
    Appellant.
    Leslie M. Maye, Assistant United States Attorney (Sanford C. Coats, United States
    Attorney, and Debra W. Paull, Assistant United States Attorney, with her on the briefs),
    Oklahoma City, Oklahoma, for Plaintiff – Appellee.
    Before GORSUCH, SEYMOUR, and PHILLIPS, Circuit Judges.
    PHILLIPS, Circuit Judge.
    Alondo Gay appeals the district court’s denial of his motion for a sentence
    reduction requested under 18 U.S.C. § 3582(c)(2). The district court denied his
    motion, concluding that Amendment 750 to the sentencing guidelines did not
    lower his sentencing range because his 1998 conviction involved too much
    cocaine base for him to qualify for relief. Gay does not contest this ruling.
    Instead, he attempts to use the § 3582(c)(2) proceeding as a stepping stone to this
    court to collaterally attack his original sentence under the Fifth and Eighth
    Amendments. When asked, Gay’s counsel acknowledged at oral argument that
    she had no authority supporting the use of a § 3582(c)(2) remedy to advance new,
    unrelated constitutional claims on appeal. We affirm the district court’s denial of
    a sentence reduction under § 3582(c)(2). Although we have no authority to grant
    relief on Gay’s constitutional claims, we address them simply to show them
    meritless.
    BACKGROUND
    In July 1998, a federal grand jury sitting in Oklahoma returned an eight-
    count indictment against Gay, charging him with a host of crimes, including
    having distributed 245.3 grams of cocaine base in violation of 21 U.S.C. §
    841(a)(1). Ultimately, Gay pleaded guilty to this distribution charge in exchange
    for dismissal of the remaining counts. Applying the 1998 sentencing guidelines,
    the probation office prepared a final presentence report (“PSR”), which held Gay
    accountable for relevant conduct of 9,636.88 grams of cocaine base. Because this
    drug weight exceeded 1.5 kilograms of cocaine base, 1 Gay qualified for base
    1
    In 1998 the threshold weight of cocaine base to reach the highest base offense
    level of 38 was 1.5 kilograms. In 2007, under Amendment 706 to the sentencing
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    offense level 38—the highest base offense level under U.S. Sentencing
    Guidelines Manual § 2D1.1. The final PSR assessed two additional levels under §
    3B1.1(c) for Gay’s aggravating role in the offense and two more levels under §
    3C1.1 for his obstruction of justice (threatening a witness in the present case).
    Based on these calculations, the PSR arrived at a total offense level of 42.
    Initially, Gay raised several objections to the factual findings in the PSR,
    including to the assigned weight of cocaine base. But, at the sentencing hearing,
    Gay withdrew all of his factual objections. As a result, the prosecution did not
    oppose, and the court granted, a three-level reduction for acceptance of
    responsibility. 2 This decrease left Gay with a total offense level of 39, which led
    to a guideline range of 262 to 327 months of imprisonment. The district court
    sentenced Gay to 262 months of imprisonment.
    In 2007, frustrated by the sentencing disparity between cocaine powder and
    cocaine base, the Sentencing Commission got creative and—with Amendment
    706—reduced the base offense level by two for most weights of cocaine base. It
    guidelines, this amount was raised to 4.5 kilograms. In 2010, under Amendment 750, the
    amount was again raised to 8.4 kilograms. For sentences after November 1, 2014, under
    Amendment 782 to the sentencing guidelines, the amount of cocaine base was once again
    raised, this time to 25.2 kilograms for base offense level 38. The Commission has made
    the new amendment retroactive, but with the requirement that reduced sentences cannot
    take effect until November 1, 2015.
    2
    While § 3E1.1 n.4 counsels that conduct resulting in an enhancement for
    obstruction of justice “ordinarily indicates that the defendant has not accepted
    responsibility for his criminal conduct,” the district court still granted Gay a reduction for
    his acceptance of responsibility, apparently after determining that his case was an
    “extraordinary” one. U.S. Sentencing Guidelines Manual § 3E1.1 n.3 (2013).
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    could do so given the statutory framework because, even after lowering the
    sentencing range, the base offense levels still contained within them the statutory
    mandatory minimum penalties. See U.S. Sentencing Guidelines Manual app. C,
    Amendment 706 (Nov. 1, 2007). In 2008, with Congress’ acquiescence, the
    Commission made the base offense level reduction retroactive through
    Amendment 713. U.S. Sentencing Comm’n, Supplement to the 2007 Guidelines
    Manual 55–56 (2008). Amendment 706 resulted in the cocaine powder-base ratio
    falling to about 33:1 for base offense level 38. 3
    Despite this adjustment to the sentencing guidelines, the federal drug
    statute continued to calculate its 5- and 10-year mandatory minimum sentences on
    the basis of a 100:1 ratio between cocaine powder and cocaine base. 4 21 U.S.C. §
    841(b)(1)(A), (b)(1)(B) (2006) (current version at 21 U.S.C. § 841 (b)(1)(A),
    (b)(1)(B) (2013)). It provided two mandatory minimum sentences: (1) 10 years
    for offenses involving at least 5 kilograms of cocaine powder or 50 grams of
    3
    Amendment 706 did not create a uniform ratio across the offense levels. Instead,
    the guidelines under Amendment 706 “advance[d] a crack/powder ratio that varie[d] (at
    different offense levels) between 25 to 1 and 80 to 1.” Kimbrough v. United States, 
    552 U.S. 85
    , 106 (2007).
    4
    Had Gay’s offense involved powder cocaine, or had the ratio been 1:1, he would
    have had a guideline range of 120–135 months. However, 16 years later, if Gay were
    sentenced today on his 9,636.88 kilograms of cocaine base, his sentencing range would
    remain the same as before: 262–327 months. In making his constitutional claims, Gay
    argues that he is a victim of the 100:1 disparity, but he has been afforded the full relief
    available at the new (post-Amendment 750) 18:1 ratio. His failure to get relief at that
    relaxed ratio results from one fact alone—his offense involved too much cocaine base.
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    cocaine base; and (2) 5 years for offenses involving at least 500 grams of cocaine
    powder or 5 grams of cocaine base. 
    Id. This changed
    in August 2010 when Congress enacted the Fair Sentencing
    Act, which reduced the statutory penalty disparity between cocaine powder and
    crack cocaine to an 18:1 ratio. See Fair Sentencing Act, Pub. L. No. 111-220, 124
    Stat. 2372 (2010). For the 10-year mandatory minimum sentence, the ratio
    became 5 kilograms of powder to 280 grams of base; for the 5-year mandatory
    minimum sentence, 500 grams of powder to 28 grams of base. U.S. Sentencing
    Guidelines Manual app. C, Amendment 750 (Nov. 1, 2011). As seen, to reduce
    the disparity, Congress chose to increase the amount of cocaine base needed to
    meet the mandatory minimum rather than decrease the amount of powder cocaine.
    In response to the Fair Sentencing Act, the Sentencing Commission
    promulgated Amendment 750, which reduced the base offense levels for various
    weights of crack cocaine. See 
    id. Specifically, as
    pertains to Gay’s case, it
    reduced from level 38 to level 36 offenses involving between 2.8 and 8.4
    kilograms of cocaine base. Offenses involving more than 8.4 kilograms of
    cocaine base remained at base offense level 38. U.S. Sentencing Guidelines
    Manual § 2D1.1(c)(1) (2013). With Congress’s acquiescence, the Sentencing
    Commission applied Amendment 750 retroactively. See U.S. Sentencing
    Guidelines Manual app. C, Amendment 759 (Nov. 1, 2011).
    In view of these developments, Gay filed a motion under § 3582(c)(2) to
    reduce his sentence. The district court denied Gay’s motion, concluding that he
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    was ineligible for relief under Amendment 750 because his “sentence was based
    on a quantity of cocaine base (9.6 kilograms) that far exceeds the maximum
    amount to which the amendments apply (8.4 kilograms).” R. vol. 2 at 121.
    Section 3582(c)(2) does not authorize a sentence reduction if a guideline
    amendment “does not have the effect of lowering the defendant’s applicable
    guideline range.” U.S. Sentencing Guidelines Manual § 1B1.10(a)(2)(B) (2013).
    DISCUSSION
    A. Gay’s Claims and Legal Theories
    In his briefing, Gay contends that the “continued enforcement of [his]
    sentence of confinement derived through the application of the 100-to-1
    punishment differential for cocaine base and enforced through the application of
    the mandatory sentencing guidelines” violates his Due Process rights under the
    Fifth Amendment. Appellant Br. at 12. Because, he says, his sentence was
    “derived through a process now recognized as Constitutionally flawed and
    scientifically   untenable,”   Gay   argues    that   it   also   violates   the   Eighth
    Amendment’s prohibition against cruel and unusual punishment. 5 Appellant Br. at
    5
    We do not understand Gay to argue that § 3582(c)(2) or its corresponding policy
    statement, U.S. Sentencing Guidelines Manual § 1B1.10, are themselves unconstitutional.
    Any such argument would run headlong into our precedent. See Dillon v. United States,
    
    560 U.S. 817
    , 828 (2010) (emphasizing that “sentence-modification proceedings
    authorized by § 3582(c)(2) are not constitutionally compelled” and that “§ 3582(c)(2)
    represents a congressional act of lenity intended to give prisoners the benefit of later
    enacted adjustments to the judgments reflected in the Guidelines”); United States v.
    Hodge, 
    721 F.3d 1279
    , 1281 (10th Cir. 2013) (determining that Ҥ 3582(c)(2)
    proceedings are not constitutionally required and do not implicate a liberty interest”).
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    4, 16. He claims that his sentence was “derived as a result of a process that both
    violated the Sixth Amendment and enforced a grossly disproportionate
    punishment differential subsequently acknowledged as insupportable.” 
    Id. at 18–
    19.
    B. No Authority to Hear Constitutional Challenges in § 3582(c)(2)
    Proceedings
    We review de novo the scope of a district court’s authority to resentence a
    defendant in a § 3582(c)(2) proceeding. United States v. Williams, 
    575 F.3d 1075
    ,
    1076 (10th Cir. 2009). Nowhere does Gay tie his constitutional challenges to his
    motion for a sentence reduction under § 3582(c)(2), the matter heard in the
    district court and supposedly supplying a basis for this appeal. Instead, as noted
    above, he complains that United States v. Booker, 
    543 U.S. 220
    (2005), 6 has not
    been applied retroactively and that as a result, his sentence continues to reflect
    the 100:1 sentencing disparity existing at his 1998 sentencing. At the same time,
    he acknowledges that the Supreme Court itself has recently stated that Booker is
    not applicable retroactively. See Dillon v. United States, 
    560 U.S. 817
    , 828
    (2010) (reviewing an appeal from a § 3582(c)(2) proceeding, the Court rejected
    an argument that, under Booker, the district court should have resentenced the
    6
    In United States v. Booker, the Supreme Court found that the mandatory nature
    of the Sentencing Guidelines violated the Sixth Amendment right of criminal defendants
    to be tried by a jury and to have every element of their offense proven by a reasonable
    
    doubt. 543 U.S. at 235
    , 243–44. To remedy the problem, the Supreme Court rendered the
    Guidelines advisory by invalidating certain provisions of the SRA. 
    Id. at 259.
    It
    concluded that the remainder of the Guidelines is constitutional. See Dillon v. United
    States, 
    560 U.S. 817
    , 820–21 (2010).
    -7-
    defendant under the advisory guidelines and adjusted his criminal history
    category). Moreover, Gay can hardly deny that the district court would have been
    quite willing to give him the benefit of Amendment 750’s 18:1 ratio had it in fact
    served to lower his sentencing range.
    Gay’s challenge amounts to a collateral attack on his sentence, seeking
    relief beyond that allowed in a § 3582(c)(2) proceeding. See United States v.
    Price, 
    438 F.3d 1005
    , 1006–07 (10th Cir. 2006) (finding no authority to consider
    Booker relief in a § 3582(c)(2) proceeding after noting that courts may modify a
    defendant’s sentence only when Congress has expressly given jurisdiction to do
    so); United States v. Smartt, 
    129 F.3d 539
    , 542–43 (10th Cir. 1997) (finding no
    jurisdiction in a § 3582(c)(2) appeal to consider the effect of counsel’s failure to
    request safety-valve relief, because this relief should be addressed in a 28 U.S.C.
    § 2255 motion). Nothing in the limited congressional grant of authority to modify
    sentences provided by § 3582(c)(2) allows Gay to challenge the constitutionality
    of his sentence. He must do so either on direct appeal or in a § 2255 petition.
    “A judge’s resentencing authority is a creation of statute….” United States
    v. Pedraza, 
    550 F.3d 1218
    , 1220 (10th Cir. 2008). “[A] district court is
    authorized to modify a defendant’s sentence only in specified instances where
    Congress has expressly granted the court jurisdiction to do so.” 
    Price, 438 F.3d at 1007
    (emphasis in original) (citation omitted) (internal quotation marks omitted).
    Courts may grant a sentence reduction under § 3582(c)(2) only where the
    Sentencing Commission has lowered a prisoner’s applicable guideline range. See
    -8-
    
    Pedraza, 550 F.3d at 1220
    . This limited jurisdiction is a “narrow exception to the
    usual rule of finality of judgments….” 
    Id. Section 3582(c)(2)
    proceedings are
    “narrow” in scope and authorize “only a limited adjustment to an otherwise final
    sentence and not a plenary resentencing proceeding.” 
    Dillon, 560 U.S. at 826
    ; see
    also United States v. Washington, 
    759 F.3d 1175
    , 1181 (10th Cir. 2014) (“[W]e
    begin by recognizing [that] the modification procedure set out in § 3582(c)(2) is
    carefully constrained.”).
    C. Fifth and Eighth Amendment Claims
    Gay argues that his 1998 sentencing, based on a 100:1 disparity between
    cocaine powder and cocaine base, violates both his Fifth and Eighth Amendment
    rights. In fact, at oral argument, his counsel contended that any disparity beyond
    a 1:1 ratio violates the Eighth Amendment. Because he did not raise these issues
    in the underlying proceeding, we review these claims for plain error. United
    States v. Steele, 
    603 F.3d 803
    , 808 (10th Cir. 2010).
    There is no plain error here because, as Gay himself acknowledges, our
    precedent squarely rejects Gay’s argument. See United States v. Brooks, 
    161 F.3d 1240
    , 1247 (10th Cir. 1998) (applying binding circuit precedent, the court
    rejected the defendant’s argument that the 100:1 disparity for cocaine powder and
    cocaine base violated the Fifth and Eighth Amendments). Congress has also
    explicitly rejected this notion: “the sentence imposed for trafficking in a quantity
    of crack cocaine should generally exceed the sentence imposed for trafficking in
    a like quantity of powder cocaine.” Kimbrough v. United States, 
    552 U.S. 85
    , 105
    -9-
    (2007) (quoting Pub. L. 104–38, § 2(a)(1)(A), 109 Stat. 334) (internal quotation
    marks omitted). Nor does Gay’s 262-month sentence violate the Eighth
    Amendment based solely on the length of incarceration. See United States v.
    Williams, 
    576 F.3d 1149
    , 1165 (10th Cir. 2009) (affirming life sentences on two
    counts of distributing more than 50 grams of cocaine base); see also Harmelin v.
    Michigan, 
    501 U.S. 957
    , 1002–05 (1991) (holding that a life sentence without
    parole for possession of 650 grams of cocaine base did not violate the Eighth
    Amendment).
    CONCLUSION
    The district court did not err in finding that Gay was ineligible for a
    sentence modification under § 3582(c)(2). Further, we hold that we lack authority
    to hear an Eighth or Fifth Amendment challenge to a final sentence in a
    §3582(c)(2) proceeding. Accordingly, we affirm the district court’s order denying
    relief under § 3582(c)(2).
    - 10 -