United States v. Smartt ( 1997 )

  •                                                                        F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                                                            NOV 12 1997
                                     PUBLISH                            PATRICK FISHER
                           TENTH CIRCUIT
     v.                                                   No. 96-8125
                      Appeal from the United States District Court
                              for the District of Wyoming
                               (D.C. No. 93-CR-29-01B)
    David T. Duran, Denver, Colorado, for Defendant-Appellant.
    David d. Freudenthal, United States Attorney, and David A. Kubichek, Assistant
    United States Attorney, Casper, Wyoming, for Plaintiff-Appellee.
    Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
    SEYMOUR, Chief Judge.
           Defendant Buddie Lee Smartt appeals the denial of his motion under 18
    U.S.C. § 3582(c) for a modification of his term of imprisonment. We affirm. 1
           Mr. Smartt was charged with manufacturing, distributing, and possessing
    with intent to manufacture and distribute more than 100 marijuana plants in
    violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(vii) (count I), and using or
    carrying a firearm during and in relation to a drug trafficking offense in violation
    of 18 U.S.C. § 924(c)(1) (count II). On June 18, 1993, Mr. Smartt pled guilty to
    count I. Count II was dismissed at the time his plea was entered. On February
    10, 1995, Mr. Smartt was sentenced to a 60 month mandatory minimum period of
    incarceration. 2
           Mr. Smartt did not appeal his sentence. In 1996, he filed a motion for
    resentencing pursuant to 18 U.S.C. § 3582(c)(2). He claimed the district court
           After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
    therefore ordered submitted without oral argument.
           Nearly two years passed between Mr. Smartt’s guilty plea and his
    sentencing because he was permitted to have scheduled surgery on his legs. Mr.
    Smartt suffers from degenerative joint disease and also has had several injuries to
    his legs.
    was authorized to reduce his sentence for two reasons. First, he asserted he was
    entitled to a reduction because his sentencing range was subsequently lowered by
    the United States Sentencing Commission when it altered the way drug quantities
    based on a specific number of marijuana plants are to be calculated. See U.S.S.G.
    App. C, Amendment 516 (Nov. 1995) (amending U.S.S.G. § 2D1.1(c))
    (authorized for retroactive application by U.S.S.G. 1B1.10(c) (Nov. 1995)).
    Second, Mr. Smartt asserted that his sentence should be modified because his
    medical needs were not being met at his place of confinement. The district court
    denied Mr. Smartt’s motion, addressing only his contention regarding the change
    in the guideline range. The district court concluded that Mr. Smartt had not been
    sentenced using a guideline range but rather in accordance with a statutory
    mandatory minimum period which had not been reduced. Consequently, the court
    held he was ineligible for relief under 18 U.S.C. § 3582(c)(2).
          Mr. Smartt filed a second motion for reduction of sentence, repeating the
    arguments raised in the first motion and adding claims that his medical condition
    warranted a reduction under 18 U.S.C. § 3553(b) and that the district court was
    permitted to depart from the mandatory minimum sentence under the “safety
    valve” provision of section 3553(f). Both subsections (b) and (f) of section 3553
    were in effect, but not raised, at the time of Mr. Smartt’s original sentencing. The
    district court reiterated its conclusion that Mr. Smartt was ineligible for a
    reduction based on the guidelines amendment. The court further held that Mr.
    Smartt was not eligible for a sentence reduction based on the safety valve
    provision of section 3553(f) because he failed to satisfy two of the five
    requirements of that section.
          On appeal, Mr. Smartt contends the district court erred by failing to give
    him the benefit of the amended guideline, and by failing to apply sections 3553(b)
    and (f) to reduce his sentence from the mandatory minimum. The government
    responds that the district court correctly denied Mr. Smartt’s motion for sentence
    reduction under section 3582(c)(2), and that the court lacked jurisdiction to
    modify Mr. Smartt’s sentence by application of section 3553(b) or (f). We agree
    with the government.
          “We review de novo the district court’s interpretation of a statute or the
    sentencing guidelines.” United States v. Acosta-Olivas, 
    71 F.3d 375
    , 377 (10th
    Cir. 1995). “We [also] review de novo the district court’s legal determination
    that it possessed jurisdiction to modify Defendant’s sentence.” United States v.
    81 F.3d 945
    , 947 (10th Cir. 1996). “A district court does not have
    inherent authority to modify a previously imposed sentence; it may do so only
    pursuant to statutory authorization.” United States v. Mendoza, 
    118 F.3d 707
    709 (10th Cir. 1997).
          Because Mr. Smartt’s motion for sentence reduction is not a direct appeal
    or a collateral attack under 28 U.S.C. § 2255, “the viability of his motion depends
    entirely on [18 U.S.C. § 3582(c)].” United States v. Trujeque, 
    100 F.3d 869
    , 870
    (10th Cir. 1996). Section 3582(c) provides that a “court may not modify a term of
    imprisonment once it has been imposed except” in three limited circumstances.
    18 U.S.C. § 3582(c) (emphasis added); see Blackwell, 81 F.3d at 947-48. First,
    upon motion of the Director of the Bureau of Prisons, a court may reduce the term
    of imprisonment if it finds special circumstances exist. 18 U.S.C. §
    3582(c)(1)(A)(i), (ii). Second, a court may modify a sentence if such
    modification is “otherwise expressly permitted by statute or by Rule 35 of the
    Federal Rules of Criminal Procedure.” Id. § 3582(c)(1)(B). Finally, a court may
    modify a sentence if “a sentencing range . . . has subsequently been lowered by
    the Sentencing Commission pursuant to 28 U.S.C. 994(o).” 18 U.S.C. §
          Mr. Smartt posits three grounds which he argues warrant resentencing: his
    medical condition, the safety valve provision of section 3553(f), and a subsequent
    amendment of the guidelines. Unless the basis for resentencing falls within one
    of the specific categories authorized by section 3582(c), the district court lacked
    jurisdiction to consider Mr. Smartt’s request. We assess each possible basis for
    sentence reduction.
    A.    Modification for special circumstances
          Mr. Smartt is not eligible for a special circumstances reduction based on his
    medical condition. Section 3582(c)(1)(A), which arguably might encompass this
    claim, requires that a motion be brought by the Director of the Bureau of Prisons.
    This requirement was not met.
    B.    Modification expressly permitted by statute or Rule 35
          Mr. Smartt is also ineligible for a reduction under section 3582(c)(1)(B).
    That section authorizes a court to “modify an imposed term of imprisonment to
    the extent otherwise expressly permitted by statute or by Rule 35.” Mr. Smartt
    does not assert that any of the requisite conditions for Rule 35 relief are present.
    See Blackwell, 81 F.3d at 948-49 (describing applicability of Rule 35). Rather,
    he argues that the safety valve provision of 18 U.S.C. § 3553(f), which requires
    departure from the mandatory minimum in some circumstances, 3 and section
              The safety valve provision provides:
          “the court shall impose a sentence . . . without regard to any statutory
          minimum, if the court finds at sentencing . . . that
                 (1) the defendant does not have more than 1 criminal history
          point, as determined under the sentencing guidelines;
                 (2) the defendant did not use violence or credible threats of
          violence or possess a firearm or other dangerous weapon (or induce
          another participant to do so) in connection with the offense;
                 (3) the offense did not result in death or serious bodily injury
          to any person;
                 (4) the defendant was not an organizer, leader, manager, or
          supervisor of others in the offense, as determined under the
          sentencing guidelines and was not engaged in a continuing criminal
          enterprise, as defined in section 408 of the Controlled Substance Act;
                 (5) not later than the time of the sentencing hearing, the
          defendant has truthfully provided to the government all information
          and evidence the defendant has concerning the offense or offenses
          that were part of the same course of conduct or of a common scheme
          or plan, but the fact that the defendant has no relevant or useful other
          information to provide or that the Government is already aware of the
          information shall not preclude a determination by the court that the
          defendant has complied with the requirement.
    18 U.S.C. § 3553(f) (emphasis added).
           The district court found Mr. Smartt failed to carry his burden to show that
    he had not possessed firearms in connection with the offense, § 3553(f)(2), and
    that he had truthfully provided to the government all information and evidence
    concerning the offense, § 3553(f)(5). Given our determination that the district
    court lacked jurisdiction to consider Mr. Smartt’s entitlement to a safety valve
    reduction, we do not address the merits of the district court’s decision.
    3553(b), which might encompass Mr. Smartt’s medical condition, 4 are both
    statutes that expressly permit modification of a sentence and are applicable to
    him. We disagree.
          We read section 3582(c)(1)(B) to permit modification of an imposed term
    of imprisonment only where a statute expressly provides for reduction of a
    previously imposed sentence. That is what Rule 35 provides, and it does not
    make sense to us that Congress intended section 3582(c)(1)(B) to mean that any
    statute permitting a district court to consider special factors at sentencing, which
    is what section 3553(b) and (f) do, could be utilized to modify a sentence after it
    becomes final.
          The plain language of section 3553 supports this conclusion. The entire
    section is directed at the initial imposition of a sentence. Mr. Smartt was
    sentenced in 1995 and has established no jurisdiction for resentencing. See infra
    Part C. This case is therefore distinguishable from cases permitting the
    application of the safety valve provision at resentencings where the district court
           Section 3553(b) permits a court, at sentencing, to depart from the
    prescribed sentencing range for a mitigating circumstance of a kind not
    adequately considered by the Sentencing Commission. The district court did not
    address this argument, and we hold infra that it lacked jurisdiction to do so.
    has otherwise been authorized to set the sentence anew. See, e.g., United States
    v. Clark, 
    110 F.3d 15
    , 16 (6th Cir. 1997) (resentencing jurisdiction based on
    section 3582(c)(2)). Cf. United States v. Williams, 
    103 F.3d 57
    , 58 (8th Cir.
    1996) (per curiam) (government may seek section 5553(e) reduction of sentence
    when court has resentencing jurisdiction under 3582(c)(2)). We hold that neither
    section 3553(b) nor (f) provides for modification of an imposed sentence within
    the meaning of section 3582(c)(1)(B). The district court therefore lacked
    jurisdiction to consider the merits of applying the safety valve provision.
          C.     Subsequent lowering of sentencing range
          After Mr. Smartt was sentenced, the marijuana plant/weight equivalencies
    in the Sentencing Guidelines were modified. If the modifications were applicable
    to Mr. Smartt, they would result in a lower sentencing range, see U.S.S.G. App.
    C, Amendment 516, and Mr. Smartt would be entitled to a reduction under section
    3582(c)(2). However, Mr. Smartt was not sentenced pursuant to the guidelines.
    Rather, he was sentenced to a statutory mandatory minimum which must be
    imposed when a defendant is convicted of possession of “100 or more marijuana
    plants regardless of weight.” 21 U.S.C. § 841(b)(1)(B)(vii) (emphasis added). 5
           As we discuss in Part III, the circumstances of this case are very unusual.
    The safety valve provision of 18 U.S.C. § 3553(f), which authorized the
    sentencing court to disregard the statutory minimum, was in effect at the time Mr.
    The Sentencing Commission’s subsequent amendment of the guideline
    plant/weight equivalencies did not amend the statute requiring the mandatory
    minimum sentence for possession of 100 or more marijuana plants. See United
    States v. Novey, 
    78 F.3d 1483
    , 1486 (10th Cir. 1996) (“[T]he Sentencing
    Commission does not have the authority to override or amend a statute.” (citing
    Neal v. United States, 
    116 S. Ct. 763
    , 766, 768 (1996)), cert. denied, 
    117 S. Ct. 2407
     (1997). Mr. Smartt was thus ineligible for a reduction of sentence under
    section 3582(c)(2). See United States v. Mullanix, 
    99 F.3d 323
    , 324 (9th Cir.
    1996) (defendant not entitled to a reduction in sentence pursuant to Amendment
    516 because original sentence was the statutory minimum term of 60 months),
    cert. denied, 
    117 S. Ct. 1457
     (1997); United States v. Marshall, 
    95 F.3d 700
    , 701
    (8th Cir. 1996) (per curiam) (where defendant possessed over 100 marijuana
    plants, Amendment 516 could not lower defendant’s sentence below the 60-month
    statutory minimum).
          The safety valve provision in section 3553(f) had not yet been enacted
    when Mr. Smartt pled guilty. However, due to the long delay between his guilty
    Smartt was sentenced. Nonetheless, that provision was not addressed by the
    parties or the court and Mr. Smartt was sentenced as though it did not exist.
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    plea and his sentencing, see supra note 1, the provision became effective prior to
    Mr. Smartt’s sentencing and could have been considered then by the district court
    had it been raised. See United States v. Torres, 
    99 F.3d 360
    , 362 (10th Cir. 1996)
    (“safety valve exception applies to all sentences imposed on or after September
    23, 1994"), cert. denied, 
    117 S. Ct. 1273
     (1997). Mr. Smartt contends the
    probation department had a continuing duty to update his presentence report and
    should have considered the applicability of the safety valve provision, and that his
    counsel was ineffective for failing to raise it. We have no jurisdiction under
    section 3582(c) to consider these issues. If Mr. Smartt wishes to raise the failure
    of his counsel and the district court to apply section 3553(f) at the time of his
    original sentencing, he must do so in a petition under 28 U.S.C. § 2255.
          We AFFIRM the district court’s dismissal of Mr. Smartt’s motion under
    3582(c) for sentence reduction.
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