United States v. Goodwin ( 2015 )

  •                                                                        FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                                                     December 7, 2015
                       UNITED STATES COURT OF APPEALS
                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
                                    TENTH CIRCUIT
                  Plaintiff - Appellee,
                                                             No. 15-3054
     v.                                          (D.C. No. 2:07-CR-20168-JWL-DJW-
     FRANKLIN GOODWIN, JR.,                                    (D. Kan.)
                  Defendant - Appellant.
                               ORDER AND JUDGMENT *
    Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
          Franklin Goodwin, Jr. appeals from the district court’s denial of his motion
    for sentence modification pursuant to 18 U.S.C. § 3582(c)(2), wherein he sought a
    reduction of his sentence based on Amendment 782 to the United States
    Sentencing Guidelines Manual (“U.S.S.G.” or “Guidelines”). Exercising our
                 The parties have not requested oral argument, and upon examining
    the briefs and appellate record, this panel has decided that oral argument would
    not materially assist the determination of this appeal. See Fed. R. App. P.
    34(a)(2); 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          This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
    Procedure 32.1 and Tenth Circuit Rule 32.1.
    jurisdiction under 28 U.S.C. § 1291, and construing Mr. Goodwin’s pro se filings
    liberally, see Garza v. Davis, 
    596 F.3d 1198
    , 1201 n.2 (10th Cir. 2010), we affirm the
    judgment of the district court.
           In 2009 a jury convicted Mr. Goodwin of conspiring to manufacture, possess with
    intent to distribute, and distribute fifty grams or more of cocaine base, in violation of 21
    U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and of using a communication device to
    facilitate a drug-trafficking offense, in violation of 21 U.S.C. § 843(b). The Presentence
    Investigation Report (“PSR”) included a finding that Mr. Goodwin’s offense involved
    170 grams of cocaine base; it computed an advisory sentencing range of 188 to 235
    months’ imprisonment under the Guidelines.1 In calculating this sentencing range, the
    PSR applied the appropriate section of the Guidelines for violations of 21 U.S.C. §§ 846
    and 843(b)—U.S.S.G. § 2D1.1—added a two-level enhancement for possession of a
    dangerous weapon pursuant to § 2D1.1(b)(1), and took into account multiple prior
           Regarding Mr. Goodwin’s prior convictions, the government filed an information
    pursuant to 21 U.S.C. § 851(a)(1), alleging that Mr. Goodwin had previously been
    convicted of two felony drug offenses. In doing so, the government obliged the district
                 The Probation Office used the 2008 edition of the Guidelines in
    preparing the PSR. The parties do not contest the applicability of that edition on
    appeal, so we use the 2008 edition in conducting our analysis.
    court—upon a subsequent judicial finding confirming the existence of those
    convictions—to sentence Mr. Goodwin “by reason” of them “to increased punishment.”
    21 U.S.C. § 851(a)(1); see id. § 851(d)(1) (“If the person files no response to the
    information, or if the court determines, after hearing, that the person is subject to
    increased punishment by reason of prior convictions, the court shall proceed to impose
    sentence upon him as provided by this part.” (emphasis added)). The district court found
    that Mr. Goodwin had been convicted of two prior felony drug offenses.
           At sentencing, the district court adopted the PSR’s findings applying U.S.S.G.
    § 2D1.1. But, because it found that Mr. Goodwin had been convicted of two prior felony
    drug offenses, the court imposed a mandatory-minimum sentence of life imprisonment
    pursuant to 21 U.S.C. § 841(b)(1)(A). See generally 21 U.S.C. § 841(b)(1)(A) (2006)
    (“In the case of a violation . . . involving . . . 50 grams or more of a mixture or substance
    . . . which contains cocaine base . . . . If any person commits a violation of this
    subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior
    convictions for a felony drug offense have become final, such person shall be sentenced
    to a mandatory term of life imprisonment without release . . . .”). A panel of this court
    affirmed Mr. Goodwin’s convictions on direct appeal. See United States v. Goodwin, 433
    F. App’x 636, 638–40 (10th Cir. 2011) (unpublished).
           Mr. Goodwin subsequently filed the instant motion in the district court under 18
    U.S.C. § 3582(c)(2), seeking a reduction of his sentence pursuant to Amendment 782 of
    the Guidelines. The district court denied Mr. Goodwin’s motion for lack of jurisdiction.
    The court explained that it generally lacks jurisdiction to modify a sentence unless
    authorized by statute. The statute on which Mr. Goodwin relies, 18 U.S.C. § 3582(c)(2),
    authorizes sentence modification for “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” when the reduction is “consistent with applicable policy
    statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The district
    court found that Mr. Goodwin’s sentence was not “based on a sentencing range that has
    subsequently been lowered by the Sentencing Commission” because he was sentenced
    pursuant to a mandatory minimum prescribed by Congress in the Controlled Substances
    Act, 21 U.S.C. § 801–904. Because Mr. Goodwin remained subject to that mandatory
    statutory minimum regardless of the application of Amendment 782, the court found that
    it lacked jurisdiction to reduce his sentence.
           This appeal followed.
           We review the district court’s denial of a sentence reduction under 18 U.S.C.
    § 3582(c)(2) for abuse of discretion. See, e.g., United States v. Osborn, 
    679 F.3d 1193
    1195 (10th Cir. 2012). In doing so, we review de novo the district court’s interpretation
    of a statute or the Guidelines. See, e.g., United States v. Rhodes, 
    549 F.3d 833
    , 837 (10th
    Cir. 2008).
           Under 18 U.S.C. § 3582(c)(2), a district court may reduce a defendant’s sentence
    when the Guidelines range has been lowered after sentencing by the U.S. Sentencing
    Commission. See United States v. Price, 
    438 F.3d 1005
    , 1006–07 (10th Cir. 2006). Mr.
    Goodwin argues that the district court abused its discretion when it concluded that
    Amendment 782 does not authorize a reduction of his sentence pursuant to § 3582(c)(2).
    However, we conclude that the district court correctly explained why Amendment 782
    does not affect Mr. Goodwin’s sentence and properly denied his § 3582(c)(2) motion.
           Mr. Goodwin is correct that Amendment 782 lowered his ordinarily applicable
    advisory Guidelines range of 188 to 235 months. Amendment 782 reduced the base
    offense levels assigned to drug quantities in U.S.S.G. § 2D1.1, effectively lowering the
    Guidelines minimum sentences for drug offenses. See U.S.S.G., suppl. to app. C, amend.
    782 (2014). The Amendment became effective on November 1, 2014, and applies
           However, we conclude that Mr. Goodwin’s motion was properly dismissed
    because his sentence was a function of a statutorily-prescribed mandatory minimum, not
    his otherwise applicable advisory Guidelines range. Specifically, after the district court
    found that Mr. Goodwin had been convicted of two prior felony drug offenses, based on
    the government’s filing of an information pursuant to 21 U.S.C. § 851(a)(1), the court
    was required to impose a sentence of life pursuant to 21 U.S.C. § 841(b)(1)(A) (2006).
    See, e.g., United States v. Payton, 
    405 F.3d 1168
    , 1173 (10th Cir. 2005) (“Based on the
    admitted facts in [the defendant’s] guilty plea, the district court had no discretion under
    the statute to do other than impose the mandatory minimum sentence.”). And under
    U.S.S.G. § 5G1.1(b), because the “statutorily required minimum sentence [was] greater
    than the maximum of the applicable guideline range,” the mandatory statutory minimum
    effectively constituted Mr. Goodwin’s Guidelines sentence. U.S.S.G. § 5G1.1(b); see
    also, e.g., United States v. Wheeler, 
    230 F.3d 1194
    , 1196 (10th Cir. 2000) (“If the upper
    limit of the guidelines range is less than seven years, [the defendant] must be sentenced to
    the mandatory minimum seven-year sentence.”).
           In short, because the district court held Mr. Goodwin accountable for two prior
    felony drug offenses, his actual sentence was controlled by the statutory mandatory
    minimum, and his Guidelines range of 188 to 235 months did not provide even the
    advisory parameters of his sentence. Consequently, the fact that Amendment 782 had the
    effect of lowering Mr. Goodwin’s advisory Guidelines range was irrelevant and could not
    avail Mr. Goodwin under 18 U.S.C. § 3582(c)(2). See, e.g., United States v. Smartt, 
    129 F.3d 539
    , 542 (10th Cir. 1997) (“Mr. Smartt was not sentenced pursuant to the guidelines.
    Rather, he was sentenced to a statutory mandatory minimum . . . . Mr. Smartt was thus
    ineligible for a reduction of sentence under section 3582(c)(2).” (citations omitted)).
           Mr. Goodwin also appeals other aspects of his sentence. For example, he
    challenges whether he was a career offender, whether the use of his prior felony drug
    convictions to increase his sentence was appropriate, and whether the district court’s drug
    quantity findings attributable to him were correct. We conclude that Mr. Goodwin cannot
    prevail on these claims.
           The district court correctly found that it lacks jurisdiction to reach the merits of
    these claims because Ҥ 3582(c)(2) does not authorize a resentencing. Instead, it permits
    a sentence reduction within the narrow bounds established by the Commission. . . .
    Because the aspects of his sentence that [Mr. Goodwin] seeks to correct were not affected
    by the Commission’s amendment to § 2D1.1, they are outside the scope of the proceeding
    authorized by § 3582(c)(2), and the District Court properly declined to address them.”
    Dillon v. United States, 
    560 U.S. 817
    , 831 (2010) (citation omitted).
           In addition, for the first time in his reply brief,2 Mr. Goodwin argues that United
    States v. Booker, 
    543 U.S. 220
     (2005), nullified the mandatory effect of statutory
    minimum sentences. In Booker, the Supreme Court held that the Guidelines are not
    mandatory but merely advisory. Booker, 543 U.S. at 245. We find Mr. Goodwin’s
    argument predicated on Booker unavailing.
           Booker held that the sentencing ranges of the Guidelines are not mandatory, but
    did nothing to negate the mandatory effect of the statutory sentences prescribed by
    Congress in the Controlled Substances Act. See, e.g., United States v. Cornelius, 696
                  “[W]e routinely have declined to consider arguments that are not
    raised, or are inadequately presented, in an appellant’s opening brief.” Bronson v.
    500 F.3d 1099
    , 1104 (10th Cir. 2007). However, we exercise our
    discretion to consider this late-blooming argument.
    F.3d 1307, 1326 (10th Cir. 2012) (“[A] district court has no discretion to depart from a
    statutorily mandated minimum sentence under 21 U.S.C. § 841, since statutory minima
    were not rendered merely advisory by United States v. Booker . . . .”); accord United
    States v. Cherry, 
    433 F.3d 698
    , 702 (10th Cir. 2005); Payton, 405 F.3d at 1173.
    Furthermore, Booker had no impact on the sentence-modification vehicle prescribed by
    § 3582, and is inapposite in this context. See, e.g., United States v. Pedraza, 
    550 F.3d 1218
    , 1220 (10th Cir. 2008) (noting that “Booker [did] not touch[] § 3582(c)(2)”); accord
    Price, 438 F.3d at 1007. At bottom, because Booker did nothing to nullify the mandatory
    effect of statutory minimum sentences, Mr. Goodwin’s reliance on Booker is
    fundamentally misguided.
           For the foregoing reasons, we AFFIRM the district court’s denial of Mr.
    Goodwin’s motion for sentence modification.
                                              ENTERED FOR THE COURT
                                              Jerome A. Holmes
                                              Circuit Judge