United States v. Alton Nelson, Jr. ( 2008 )


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  •                                                                        FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
    
                                                                    December 18, 2008
                         UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                       TENTH CIRCUIT                   Clerk of Court
    
    
    
     UNITED STATES OF AMERICA,
    
              Plaintiff-Appellee,
                                                            No. 08-6076
     v.                                               (D.C. No. CR-03-145-R)
                                                            (W.D. Okla.)
     ALTON RAY NELSON, JR.,
    
              Defendant-Appellant.
    
    
                                    ORDER AND JUDGMENT *
    
    
    Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
    
    
          Defendant Alton Ray Nelson, Jr., was originally sentenced in 2004 for
    
    possession with intent to distribute crack cocaine. Following the Sentencing
    
    Commission’s 2007 amendment of the crack cocaine-related Sentencing
    
    Guidelines, Nelson sought and was granted a modification of his sentence
    
    pursuant to 18 U.S.C. § 3582(c)(2). The court reduced his sentence by twelve
    
    
    
          *
           After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. 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    not binding precedent, except under the doctrines of law of the case, res judicata,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.
    months, although Nelson requested a more significant reduction of thirty-three
    
    months, to the minimum under the amended guideline range. Nelson now appeals
    
    his modified sentence, claiming the district court erred when it denied his request
    
    to modify his sentence to the minimum under the amended guideline range
    
    without giving any reasons supporting its decision. We exercise jurisdiction
    
    pursuant to 28 U.S.C. § 1291 and remand for re-sentencing, because the district
    
    court erred by failing to give a reasoned explanation for the modified sentence it
    
    ordered.
    
    
    
                                        Background
    
          On August, 28, 2003, Nelson entered a plea of guilty to a single count of
    
    possession of crack cocaine with intent to distribute. A federal probation officer
    
    then prepared a presentence report (PSR) utilizing the 2002 Edition of the United
    
    States Sentencing Commission Guidelines Manual. Based on Nelson’s purchases,
    
    over the course of a year, of cocaine that he converted to crack cocaine for
    
    distribution, the PSR determined that Nelson was accountable for 283.5 grams of
    
    cocaine base, resulting in a base offense level of 34. The PSR recommended that
    
    no adjustments were warranted, and thus the total offense level was also 34. That
    
    offense level, combined with Nelson’s criminal history category of II, resulted in
    
    a mandatory guideline imprisonment range of 168 to 210 months. On January 30,
    
    
    
    
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    2004, the district court sentenced Nelson to a term of imprisonment of 168
    
    months. 1
    
          On March 6, 2008, Nelson filed a pro se motion pursuant to 18 U.S.C.
    
    § 3582(c)(2) asking the district court to modify his sentence, based on
    
    Amendment 706. “The Guidelines, through Amendment 706, generally adjust
    
    downward by two levels the base offense level assigned to quantities of crack
    
    cocaine. Amendment 706 took effect November 1, 2007, and was made
    
    retroactive as of March 3, 2008.” United States v. Sharkey, 
    543 F.3d 1236
    , 1237
    
    (10th Cir. 2008).
    
          Nelson’s motion noted that, under the amended guidelines for crack
    
    cocaine-related offenses, his guideline range would be 135 to 168 months.
    
    Accordingly, Nelson requested the district court modify his sentence “to 135
    
    
    
          1
             Nelson did not file a direct appeal. On January 27, 2005, however, his
    attorney filed a motion under 28 U.S.C. § 2255, arguing that his sentence violated
    United States v. Booker, 
    543 U.S. 220
     (2005), and requesting “that the court . . .
    re-sentence him to a more reasonable sentence.” (R. doc. 304.) The district court
    denied the motion on February 1, 2005, and Nelson did not attempt to appeal the
    denial of his § 2255 motion. But ten months later, on December 12, 2005, Nelson
    filed a pro se pleading for leave to supplement the record of his § 2255 motion.
    The district court denied the motion on December 15, 2005, and Nelson filed a
    notice of appeal on February 9, 2006. This Court treated Nelson’s pleading as a
    second motion for habeas relief under § 2255, and vacated the district court’s
    ruling because the district court lacked subject-matter jurisdiction because a
    second § 2255 motion had to have been certified by this Court. See United States
    v. Nelson, 
    465 F.3d 1145
     (10th Cir. 2006). This Court then proceeded to consider
    and deny Nelson’s implied application for leave to file a second § 2255. See id.
    at 1149.
    
                                           -3-
    months imprisonment, or any further reduced term of imprisonment the Court
    
    deems fair and appropriate.” (R. doc. 367 at 1.)
    
          Nelson’s motion also noted that “§ 3582(c)(2) directs the district court to
    
    ‘consider[] the factors set forth in section 3553(a) to the extent that they are
    
    applicable’ and determine whether ‘reduction is consistent with applicable policy
    
    statements issued by the Sentencing Commission.’” (R. doc. 367 at 4.) Nelson
    
    requested the court to consider several issues as they relate to the § 3553(a)
    
    factors:
    
                 (1) The instant offense is [sic] a nonviolent offense which was
          committed when Petitioner was a young man;
                 (2) the Petitioner is a high school graduate who attended
          Langston University for two years on a scholarship. While Petitioner
          did sell drugs, history of drug dealing should not be used as a
          standard by which to gauge the direction Petitioner will take in the
          future. Petitioner has continued his education since his incarceration
          and has participated in numerous programs with the goal of
          rehabilitating himself so that he may lead a productive and
          constructive life outside of prison, see Attachment A (hereto) 2;
                 (3) the only type of sentence available to Petitioner is a
          sentence of imprisonment to be followed by a term of supervised
          release. The modified sentence requested by Petitioner would satisfy
          the type of sentence available to him;
                 (4) . . . In light of the fact that the Court imposed a term of
          168 months (low-end) under the pre-Amendment guidelines,
          Petitioner urges the Court to impose a term of 135 months (low-end)
          under the amended guidelines; and
                 (5) the Court is further urged to consider that one of the
          prevailing reasons for the amendment to the Drug Quantity Table
          was to lessen the disparity in the punishment between cocaine base
          defendants and cocaine hydro-chloride defendants. Petitioner would
    
          2
           Attachment A listed education courses that had been successfully
    completed. (R. doc. 367 at 6.)
    
                                             -4-
          ask the Court to operate with a view toward lessening that disparity
          when considering him for a sentence modification.
    
    (R. doc. 367 at 4-5) (footnote added).
    
          The district court appointed counsel to represent Nelson, and on March 24,
    
    2008, appointed counsel and the government filed a “joint motion for reduction of
    
    sentence and brief in support.” The motion stated that “[t]he parties agree that
    
    Amendment 706 to the United States sentencing guidelines is applicable to this
    
    case and authorizes the Court to consider a reduction of defendant’s sentence.”
    
    (R. doc. 372 at 1.) It continued, “[t]he parties have reviewed the ‘Preliminary
    
    Report for Consideration of Sentence Reduction’ prepared by the United States
    
    Probation Office and adopt the accuracy of the report’s revised guideline
    
    calculation which would reduce the total offense level to 32 with a resulting
    
    guideline range of 135 to 168 months.” 3 (Id.) “Based on the foregoing, Mr.
    
    Nelson . . . request[ed] imposition of sentence at the low end of the guideline
    
    range, 135 months . . . .” (Id. At 2.) The government did not object to Nelson’s
    
    request for a sentence at the low end of the guideline range.
    
    
    
          3
            The Preliminary Report, prepared by the United States Probation Office in
    response to Nelson’s motion seeking a reduction in sentence, concluded that
    Nelson was eligible for a modification of his sentence based on Amendment 706.
    The Report also provided information on Nelson’s Institutional Adjustment,
    indicating three separate infractions leading to administrative sanctions, as well as
    four Educational Programs in which defendant had participated in while
    incarcerated. The Preliminary Report did not include a recommendation on
    Nelson’s motion to modify his sentence.
    
                                             -5-
          On March 25, 2008, the district court entered an order granting Nelson’s
    
    motion, and reducing the sentence to 156 months. The district court did not
    
    conduct a hearing on Nelson’s motion and did not provide any reasons for the
    
    decision to reduce the sentence to 156 months, in the middle of the amended
    
    guideline range of 135 to 168 months. Nelson now timely appeals the district
    
    court’s denial of his request to modify his sentence to 135 months.
    
    
    
                                         Discussion
    
          On appeal, Nelson argues that the district court erred in failing to consider
    
    § 3553(a) factors, as required by § 3582(c)(2), and in failing to state reasons
    
    supporting its decision on Nelson’s motion to modify his sentence. Nelson argues
    
    that this is an abuse of discretion of the district court’s authority in a resentencing
    
    proceeding, and that the district court denied Nelson due process because he was
    
    unable to address the factors that influenced the district court’s concerns. The
    
    government argues that because the district court decided to exercise its
    
    discretion to modify Nelson’s sentence, it had necessarily considered the relevant
    
    sentencing factors, and the government appears to implicitly argue that the
    
    Preliminary Report provided support for the district court’s decision.
    
          We review a district court’s decision to modify a sentence pursuant to 18
    
    U.S.C. § 3582(c)(2) under an abuse of discretion standard. See United States v.
    
    Dorrough, 
    84 F.3d 1309
    , 1311 (10th Cir. 1996), United States v. Telman, 28 F.3d
    
                                             -6-
    94, 97 (10th Cir. 1994); United States v. Williams, No. 08-5014, 
    2008 WL 3861175
     at *1,(10th Cir. Aug. 15, 2008) (unpublished). We review a court’s
    
    interpretation of the Guidelines and other legal issues de novo. United States v.
    
    Smartt, 
    129 F.3d 539
    , 540 (10th Cir. 1997).
    
          The retroactive application of a change in the offense level pursuant to
    
    Amendment 706 authorized, but did not require, the district court to modify
    
    Nelson’s sentence. See 18 U.S.C. § 3582(c)(2) (“[I]n the case of a defendant who
    
    has been sentenced to a term of imprisonment based on a sentencing range that
    
    has subsequently been lowed by the Sentencing Commission pursuant to 28
    
    U.S.C. § 944(o) . . . the court may reduce the term of imprisonment . . . .”)
    
    (emphasis added); see also United States v. Vaultier, 144F.3d 756, 760 (11th Cir.
    
    1998) (Under § 3582(c)(2) “the district court is not required to reduce the
    
    defendant’s sentence.). 4
    
          In determining whether to reduce a defendant's sentence due to a
          subsequent amendment, 18 U.S.C. § 3582(c) directs the district court
    
          4
            We note that the district court’s discretion to modify a defendant’s
    sentence is cabined by the current version of U.S.S.G. § 1B1.10, “which has
    clearly indicated that a sentencing court shall not, in modifying a previously
    imposed sentence on the basis of an amended guideline, impose a sentence below
    the amended guideline range. Because this policy statement is binding on district
    courts pursuant to § 3582(c)(2), the district court . . . lack[s] authority to impose a
    modified sentence that [falls] below the amended guideline range.” United States
    v. Rhodes, __ F.3d ___, 
    2008 WL 5102247
    , *7 (10th Cir. 2008).
           The parties’ arguments regarding the district court’s discretion to modify
    below the guidelines, which Nelson recognized “is not dispositive of the core
    question presented in this appeal” (Aplt. Reply Br. at 2), was recently decided by
    this Court, see id., and merits no further discussion.
    
                                             -7-
          to “consider[ ] the factors set forth in section 3553(a) to the extent
          that they are applicable” and determine whether “reduction is
          consistent with the applicable policy statements issued by the
          Sentencing Commission.”
    
    Telman, 28 F.3d at 96. 5 The factors to be considered under § 3553(a) include: (1)
    
    the nature and circumstances of the offense; (2) the history and characteristics of
    
    the defendant; (3) the need for the sentence imposed (to reflect the seriousness of
    
    the offense, to afford adequate deterrence, to protect the public, and to provide
    
    the defendant with needed occupation or vocational training); (4) the kinds of
    
    sentences available; (5) the applicable sentencing range under the guidelines; (6)
    
    any pertinent Sentencing Commission policy statements; (7) the need to avoid
    
    unwarranted sentence disparities among Defendants; and (8) the need to provide
    
    restitution to victims. 18 U.S.C. § 3553(a).
    
          The district court is required, at a minimum, to state the reasons for its
    
    action on defendant’s motion pursuant to § 3582(c)(2). See Dorrough, 84 F.3d at
    
    
          5
              Section 3582(c) provides, in pertinent part:
    
          [t]he court may not modify a term of imprisonment once it has been
          imposed except that – . . . (2) in the case of a defendant who has
          been sentenced to a term of imprisonment based on a sentencing
          range that has subsequently been lowered by the Sentencing
          Commission pursuant to 28 U.S.C. 994(o), upon motion of the
          defendant or the Director of the Bureau of Prisons, or on its own
          motion, the court may reduce the term of imprisonment, after
          considering the factors set forth in section 3553(a) to the extent that
          they are applicable, if such a reduction is consistent with applicable
          policy statements issued by the Sentencing Commission.
    
    
                                              -8-
    1311 (“There is no requirement that the district court make specific findings
    
    regarding each of the [§ 3553(a)] factors as long as it states the reasons for its
    
    actions.”) (emphasis added). “[A]nd it goes without saying that the reasons
    
    provided by the court must have some correlation to the statutory factors set forth
    
    in § 3553(a).” Dorrough, 84 F.3d at 1313 (Ebel, J., concurring) (citing United
    
    States v. Avila, 
    997 F.2d 767
    , 768 (10th Cir. 1993) (holding district court’s power
    
    to reduce a sentence in light of a subsequent modification to the sentencing
    
    guidelines “is tethered to the factors contained in § 3553(a)”).
    
          Although the district court is not required to make specific findings as to
    
    each sentencing factor, the record does not indicate that the district court
    
    considered the relevant § 3553(a) factors, nor does the record indicate the reasons
    
    for the court’s decision to modify Nelson’s sentence. The district court’s order,
    
    issued on the AO-247 form “order regarding motion for sentence reduction,”
    
    makes no mention of the relevant sentencing factors or the basis for the court’s
    
    decision to reduce Nelson’s sentence by only a fraction of the requested
    
    modification.
    
          “A district court by definition abuses its discretion when it makes an error
    
    of law.” Koon v. United States, 
    518 U.S. 81
    , 100 (1996). Here, the district court
    
    abused its discretion because it committed an error of law – it failed to state the
    
    reasons for its decision as required under § 3582(c)(2). Furthermore, because the
    
    record does not include the reasons for the decision, we lack a meaningful basis
    
                                              -9-
    for reviewing the district court’s consideration of the relevant factors. See United
    
    States v. Tidwell, 
    178 F.3d 946
    , 948 (7th Cir. 1999) (quoting previous
    
    unpublished order remanding case for resentencing because the record did not
    
    provide reasons for decision denying § 3582(c)(2) motion). This point is made
    
    abundantly clear by the government’s argument that even though the district court
    
    did not explain its reasons for decision, there is no indication of an abuse of
    
    discretion because Nelson “has failed to identify any specific factors that the
    
    district court should have but failed to consider or factors that the court
    
    improperly considered.” (Aple. Br. at 15.) It is precisely because the district
    
    court failed to provide its reasons for decision or what factors it considered, that
    
    it is impossible for Nelson to identify any specific factors that the district court
    
    should have but failed to consider or factors that the court improperly considered.
    
    Without such information we lack a meaningful basis for determining whether the
    
    district court abused its discretion in deciding how much to reduce Nelson’s
    
    sentence. 6
    
           Therefore, we REMAND to the district court to consider whether to grant a
    
    greater reduction in Nelson’s sentence in light of the relevant § 3553(a) factors,
    
    and to state its reasons for whatever sentence it decides to impose. The district
    
    
           6
            Because we agree with Nelson that the district court abused its discretion
    under § 3582(c)(2) by failing to consider the § 3553(a) factors and state reasons
    supporting its decision on Nelson’s motion to modify his sentence, it is
    unnecessary for this Court to address Nelson’s due process claim.
    
                                             - 10 -
    court is authorized to vacate Nelson’s sentence and impose a new sentence should
    
    it decide upon remand that a different sentence is more appropriate. 7
    
    
    
    
                                           ENTERED FOR THE COURT
    
    
    
                                           David M. Ebel
                                           Circuit Judge
    
    
    
    
          7
            On remand, we stress that the district court does not have an obligation to
    reduce Nelson’s sentence to the minimum of the amended guideline range simply
    because Nelson was originally sentenced at the bottom of the prior mandatory
    guideline range – this decision obviously rests squarely in the district court’s
    discretion.
    
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