United States v. Grant ( 2010 )


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  •                                                                             FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
    
                                                                            April 28, 2010
                             UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                             Clerk of Court
                                        TENTH CIRCUIT
    
    
    
     UNITED STATES OF AMERICA,
    
               Plaintiff-Appellee,
     v.                                                           No. 09-6232
     MARCUS DEWAYNE GRANT,                              (D.C. No. 5:05-CR-00159-R-1)
                                                                (W. D. Okla.)
               Defendant-Appellant.
    
    
    
                                     ORDER AND JUDGMENT*
    
    
    Before TACHA, BRISCOE, and O’BRIEN, Circuit Judges.
    
    
    
           After examining the briefs and appellate record, this panel has determined
    
    unanimously to honor the parties’ request for a decision on the briefs without oral
    
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,
    
    submitted without oral argument.
    
           Defendant Marcus Grant appeals from the district court’s denial of his motion for
    
    reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Exercising jurisdiction
    
    
    
           *
            This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
    persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    pursuant to 28 U.S.C. § 1291, we affirm.
    
                                                    I
    
           On September 6, 2005, a federal grand jury indicted Grant on two counts of
    
    knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. §
    
    841(a)(1). On October 6, 2005, Grant entered a plea of guilty to Count 1 of the
    
    indictment, which charged him with distributing 21.3 grams of crack cocaine on April 4,
    
    2005. A presentence investigation report (PSR) was prepared by the probation office and
    
    provided to the district court and parties on December 9, 2005. The Sentencing Guideline
    
    calculations contained in the PSR included a total offense level of 27, a criminal history
    
    category of III, and an advisory guideline range of 87 to 108 months’ imprisonment.
    
    Neither Grant nor the government filed any objections to the PSR. On January 12, 2006,
    
    the district court sentenced Grant to a term of imprisonment of 144 months.
    
           Grant appealed his sentence to this court, arguing that the district court imposed a
    
    sentence above the advisory guideline range without first giving him notice of its intent to
    
    do so. While the appeal was pending, the parties filed a joint motion for remand for
    
    resentencing, noting that in United States v. Dozier, 
    444 F.3d 1215
     (10th Cir. 2006), this
    
    court held “that Rule 32(h) . . . requires a [district] court to notify both parties of any
    
    intention to depart from the advisory sentencing guidelines as well as the basis for such a
    
    departure when the ground is not identified in the presentence report or in a party’s
    
    prehearing submission.” Id. at 1218. On August 21, 2006, this court granted the parties’
    
    joint motion and remanded the case to the district court for resentencing. On September
    
                                                   2
    27, 2006, the district court resentenced Grant to 108 months’ imprisonment, a term at the
    
    top of the advisory guideline range.
    
           On October 8, 2009, the parties filed a joint motion for reduction of sentence
    
    pursuant to 18 U.S.C. § 3582(c). In that motion, the parties stated they “agree[d]
    
    Amendment 706 to the United States [S]entencing [G]uidelines,” which modified the
    
    Drug Quantity Table in U.S.S.G. § 2D1.1(c) downward two levels for crack cocaine
    
    offenses, “[wa]s applicable to th[e] case and authorize[d] the Court to consider a
    
    reduction of [Grant]’s sentence.” ROA, Vol. 1 at 43-44. Attached to the parties’ motion
    
    was a preliminary report prepared by the probation office regarding the possibility of a
    
    sentence reduction for Grant. In that report, the probation office concluded that Grant
    
    was eligible, at the district court’s discretion, for a two-level decrease in his base offense
    
    level, and that such a decrease would in turn result in an advisory guideline range of 70 to
    
    87 months’ imprisonment. Id. at 47.
    
           On October 14, 2009, the district court issued an order denying the motion for
    
    reduction of sentence. The order stated, in pertinent part:
    
           After considering the motion as well as the sentencing factors set out in 18
           U.S.C. § 3553, the Court declines to reduce the Defendant’s sentence.
    
           ***
    
           Defendant’s pre-sentence report reveals an extensive criminal history
           including violence not taken into consideration by the sentencing
           guidelines. His history includes repeated instances of drug violations as
           well as possession of weapons. The Court finds that the sentence
           previously imposed is sufficient but not greater than necessary to protect the
           public from further crimes of the defendant.
    
                                                   3
    Id. at 49.
    
                                                  II
    
           Grant now appeals the district court’s denial of the motion for reduction of
    
    sentence. We review for abuse of discretion a district court’s decision to deny a motion
    
    for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). United States v. Sharkey,
    
    
    543 F.3d 1236
    , 1238 (10th Cir. 2008). Although Amendment 706 applied to Grant’s case
    
    and would have permitted the district court to exercise its discretion under § 3582(c)(2) to
    
    reduce Grant’s sentence, Amendment 706 did not require the district court to reduce
    
    Grant’s sentence.
    
           Grant contends that “[t]he district court’s characterization of [his] criminal history
    
    as ‘extensive’ and unaccounted for in the [PSR’s] guideline computation is unsupported
    
    by the record.” Aplt. Br. at 12. In particular, Grant notes that his “criminal history
    
    category was computed [by the PSR] in conformity with the applicable sentencing
    
    guideline provisions.” Id. at 11. Further, Grant notes that the PSR “did not indicate [his]
    
    criminal history category substantially under-represented the seriousness of his criminal
    
    history ‘or the likelihood that [he would] commit other crimes,’ so that an upward
    
    departure was warranted.” Id. (quoting U.S.S.G. § 4A1.1 (2005)). Lastly, Grant notes
    
    that “[t]he United States did not disagree with the [PSR’s] guideline computation and did
    
    not advocate for an upward departure.” Id. at 11-12.
    
           In addressing Grant’s contentions, we note, at the outset, that the Sentencing
    
    Guidelines expressly outline certain factors that must be considered by a district court
    
                                                  4
    faced with a motion for reduction of sentence pursuant to § 3582(c)(2). To begin with,
    
    “the court shall consider the factors set forth in 18 U.S.C. § 3553(a) in determining . . .
    
    whether a reduction . . . is warranted . . . .” U.S.S.G. § 1B1.10 cmt. n.1(B)(i). Notably,
    
    the factors to be considered under § 3553(a) include the defendant’s history and the need
    
    for the sentence imposed to protect the public from further crimes of the defendant. 18
    
    U.S.C. § 3553(a)(1), (2)(C). Relatedly, the Sentencing Guidelines also expressly require
    
    a court to consider “the nature and seriousness of the danger to any person or the
    
    community that may be posed by a reduction in the defendant’s term of imprisonment . . .
    
    .” U.S.S.G. § 1B1.10 cmt. n.1(B)(ii). Consequently, the district court in this case would
    
    have abused its discretion had it not considered Grant’s criminal history in deciding
    
    whether to grant the motion for reduction of sentence.
    
           We in turn conclude that the record on appeal adequately supports the district
    
    court’s findings that Grant’s criminal history was “extensive” and “includ[ed] violence
    
    not taken into consideration by the sentencing guidelines.” ROA, Vol. 1 at 49.
    
    According to the PSR, Grant’s criminal history began at age 15, when, within the span of
    
    four months, he was charged in two separate criminal proceedings with three counts of
    
    shooting with intent to kill. ROA, Vol. 2 at 6. Grant pled guilty to two of those counts,
    
    was found guilty of the third, and was placed in juvenile custody for a period of time.
    
    The PSR did not, however, assess any criminal history points for those sentences.1 Id.
    
           1
            As the basis for not assessing any criminal history points for these prior
    sentences, the PSR cited to U.S.S.G. § 4A1.2(e)(3), which effectively excludes the
    consideration of certain older prior sentences. We question, however, whether Grant’s
    
                                                  5
           Grant’s criminal activity continued into his adulthood. Between September of
    
    2002 and April of 2005, Grant was arrested on approximately six occasions, five of which
    
    involved the possession of illegal drugs. On one of those occasions, Grant was in
    
    possession of a firearm. On another, Grant purportedly attempted to elude a sheriff’s
    
    deputy and, in doing so, “recklessly pulled into a parking lot narrowly missing two
    
    customers.” Id. at 11. Because the state criminal charges that arose out of this latter
    
    event had not been finally adjudicated at the time Grant’s PSR in the instant case was
    
    prepared, he was not assigned any criminal history points for the incident. Finally, the
    
    PSR indicates that at the time Grant engaged in the offense of conviction in this case, he
    
    was still on probation in connection with a state drug-trafficking offense that he pled
    
    guilty to in September of 2003.
    
           In sum, we readily agree with the district court that Grant’s criminal history was
    
    both extensive and included violent conduct for which he received no criminal history
    
    points. Further, we conclude that the district court did not abuse its discretion in refusing,
    
    based upon these findings, to reduce Grant’s sentence.
    
           Grant also argues on appeal that “United States v. Booker, 
    543 U.S. 220
     (2005),
    
    applies to sentence modification proceedings conducted” under § 3582(c)(2), Aplt. Br. at
    
    
    
    prior juvenile sentences were properly excluded under § 4A1.2(e)(3), since both were
    imposed within ten years of Grant’s commencement of the current crack cocaine
    distribution offense. Whether or not Grant’s prior juvenile sentences would have been
    properly excluded under another Guideline provision, it is uncontroverted that they were
    not counted in his PSR, and thus did not impact either his criminal history category or his
    resulting advisory guideline range.
    
                                                  6
    8, and “permit[s] a sentence below the revised guideline range,” id. at 9. Because,
    
    however, the district court in this case did not abuse its discretion in refusing to grant the
    
    motion for reduction of sentence, the question of whether it possessed authority to impose
    
    a sentence below the revised guideline range is irrelevant.
    
           AFFIRMED.
    
                                                       Entered for the Court
    
    
                                                       Mary Beck Briscoe
                                                       Circuit Judge
    
    
    
    
                                                   7
    

Document Info

DocketNumber: 09-6232

Filed Date: 4/28/2010

Precedential Status: Non-Precedential

Modified Date: 12/21/2014