United States v. Crisp ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 11, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5040
(D.C. No. 4:08-CR-00158-GKF-1)
MICHAEL LYNN CRISP, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, Circuit Judge, LUCERO Senior Circuit Judge, and PHILLIPS,
Circuit Judge.
_________________________________
Michael Lynn Crisp, appearing pro se, 1 appeals the district court’s ruling on
his motion to reduce his sentence under 18 U.S.C. § 3582(c) and § 404 of the First
Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222 (2018). The district
court granted his motion in part, reducing his sentence by fourteen months. He
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We liberally construe Crisp’s pro se briefs, but we do not act as his advocate.
See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
argues the court should have reduced his sentence further and should have held a
hearing on the motion. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
In 2008, Crisp pled guilty to possession with intent to distribute 50 grams or
more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).
The presentence investigation report (PSIR) indicated that Crisp was subject to
a statutory twenty-year mandatory minimum sentence because he had a prior Texas
state felony drug conviction for possession with intent to distribute marijuana. For
purposes of calculating the applicable guidelines range, the PSIR classified Crisp as a
career offender under U.S. Sentencing Guidelines Manual (USSG) § 4B1.1 (U.S.
Sent’g Comm’n 2008). This classification was based on two prior felony convictions
for “controlled substance offenses”—the Texas marijuana conviction and another
Texas state conviction for possessing a controlled substance with intent to deliver
under Texas Health & Safety Code § 481.112(a). At the time, each of those offenses
was considered a “controlled substance offense” under the definition in USSG
§ 4B1.2(b). The PSIR also indicated that Crisp was convicted in 1991 in Oklahoma
state court for assault and battery with a dangerous weapon, a felony for which he
was sentenced to five years in custody. With the § 4B1.1 career offender
classification and the downward adjustments requested by the parties, the PSIR
calculated a guidelines range of between 262 and 327 months. Crisp did not object to
the PSIR, and the district court adopted it. The court sentenced him to 276 months in
prison.
2
After Crisp’s sentencing, the Fair Sentencing Act of 2010 (Fair Sentencing
Act), Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010), increased the amount of crack
cocaine required to trigger certain mandatory minimum sentences, including the one
applicable to Crisp’s offense. See United States v. Cornelius, 696 F.3d 1307, 1326,
1328 (10th Cir. 2012). But because Congress did not make the Fair Sentencing Act
retroactive, it did not affect Crisp’s sentence. See id. at 1328. Then, in 2018,
Congress passed the First Step Act, which authorized courts to retroactively apply the
Fair Sentencing Act “to offenders who committed offenses prior to the [Act’s]
effective date of August 3, 2010.” United States v. Mannie, 971 F.3d 1145, 1147
(10th Cir. 2020).
After the enactment of the First Step Act, Crisp petitioned the district court to
exercise its discretion and impose a reduced sentence of 134 months. He noted the
reduction of the statutory minimum from twenty years to ten years. See Fair
Sentencing Act § 2(a)(1), 124 Stat. at 2372. He also sought reconsideration of his
career offender status under USSG § 4B1.1(a), arguing that based on intervening
caselaw, his Texas conviction for delivery of a controlled substance no longer
qualifies as a controlled substance offense under the Armed Career Criminal Act
(ACCA). See United States v. Tanksley, 848 F.3d 347, 352 (5th Cir.), supplemented,
854 F.3d 284 (5th Cir. 2017). He further argued that without the career offender
classification he would be eligible for a reduced sentence pursuant to § 3582(c)(2)
and certain post-sentencing amendments to the Sentencing Guidelines.
3
The district court agreed that, based on Tanksley, the delivery conviction did
not qualify as a “controlled substance offense” as defined in § 4B1.2(b) and therefore
did not provide a predicate for his career offender classification under § 4B1.1(a). It
concluded, however, that Crisp was still subject to sentencing as a career offender
because of his 1991 Oklahoma conviction for assault and battery with a dangerous
weapon, which we have held is a “crime of violence” as defined by USSG
§ 4B1.2(a). 2 See United States v. Taylor, 843 F.3d 1215, 1224-25 (10th Cir. 2016).
Consequently, the district court concluded Crisp’s guideline range would remain the
same—262 to 327 months. Nevertheless, the court found that reducing his sentence
would further the Fair Sentencing Act’s intended purpose “to decrease the ratio in the
mandatory minimum sentences for crack cocaine versus powder cocaine.”
Accordingly, exercising its discretion under § 3582(c)(1)(B) to reduce Crisp’s
sentence pursuant to the First Step Act and applying the 18 U.S.C. § 3553(a)
sentencing factors, the court granted Crisp’s motion in part and reduced his sentence
from 276 to 262 months.
II
On appeal, Crisp claims the district court erred by (1) using an alternative
predicate offense to support his career offender classification; (2) reducing his
2
For the first time in his reply brief, Crisp raises a challenge based on Mathis
v. United States, 136 S. Ct. 2243 (2016) to the use of his Oklahoma conviction for
assault and battery with a dangerous weapon as a predicate offense for his career
offender classification. In making that argument, he ignores Taylor, which rejected
it. See 843 F.3d at 1221-25. His arguments about other Oklahoma assault and
battery offenses (for example, assault on a law enforcement officer) are inapposite.
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sentence by only fourteen months; and (3) not holding an evidentiary hearing on his
motion.
A
Crisp argues that the district court erred by using a substitute predicate offense
to support his career offender classification. We review a district court’s authority to
modify a sentence under the First Step Act de novo. United States v. Brown, 974
F.3d 1137, 1141 (10th Cir. 2020).
The First Step Act authorizes “only a limited change in the sentences of
defendants who had not already benefitted from the Fair Sentencing Act.” Brown,
974 F.3d at 1144. Specifically, it allows a defendant to ask a district court to
exercise its discretion to “impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 were in effect at the time the covered offense was
committed.” First Step Act, § 404(b) (emphasis added) (citation omitted). While this
appeal was pending, we decided Brown, which explains that under that limitation,
district courts “cannot consider new law” such as “revised Guidelines instead of the
Guidelines used at the original sentencing,” but can consider intervening decisions
that clarify “what the law always was.” 974 F.3d at 1144, 45. Brown considered our
decision in United States v. Titties, which concluded that an Oklahoma conviction for
feloniously pointing a firearm was not a violent felony under the ACCA. 852 F.3d
1257, 1268-69 (10th Cir. 2017). In Brown, we held that Titties was not a post-
sentence “amendment to the law,” but instead was an explanation of what the law
always had been, including at sentencing. Brown, 974 F.3d at 1145. We emphasized
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the importance of calculating the Guidelines range correctly based on the law “in
effect at the time” of the original sentencing, First Step Act, § 404(b), and we held a
district court can “use all the resources available to it to make that calculation,”
Brown, 974 F.3d at 1145.
That is precisely what the district court did here. The district court properly
relied on Tanksley, which, like Titties, clarified “what the law always was.”
Tanksley held that the delivery offense used as a predicate at the original sentencing
did not qualify as a “controlled substance offense” as defined in § 4B1.2(b) and
therefore did not support Crisp’s career offender classification. Applying the same
logic, it was also proper for the district court to rely on the historical information in
the PSIR and Taylor to conclude Crip still qualified as a career offender based on his
Texas marijuana conviction and his Oklahoma assault and battery with a dangerous
weapon conviction. See Mannie, 971 F.3d at 1157-58 (affirming the district court’s
reliance in part on “historical facts from [the defendant’s] initial sentencing” in
declining to reduce the defendant’s sentence under the First Step Act); United States
v. Shipp, 644 F.3d 1126, 1130 (10th Cir. 2011) (invalidation of career offender
classification based on one predicate conviction did not preclude district court on
remand from classifying the defendant as a career offender again based on a different
predicate offense).
Accordingly, the district court did not err by using the Oklahoma conviction
for assault and battery as a predicate offense to reaffirm Crisp’s career offender
status for purposes of calculating his Guidelines range. Crisp maintains that the
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district court erred by using that conviction as a predicate because the PSIR did not
“list[] [it] as a predicate offense under the Chapter Four Enhancement” and he was
not “advised that [it could] be used to ‘career’ him.” Crisp does not provide further
explanation for this contention, but to the extent that it is based on the notification
requirement in 21 U.S.C. § 851(a)(1), that requirement is inapplicable. A lay person
may reasonably believe that the text of § 851(a)(1)—that “[n]o person . . . shall be
sentenced to increased punishment by reason of one or more prior convictions, unless
. . . the United States attorney files an information . . . stating in writing the previous
convictions to be relied upon”—requires notice regardless of the source of the
increased punishment. However, clear precedent states otherwise. We have held that
§ 851(a)(1) only requires notice “in situations in which a defendant’s statutory
maximum or minimum is enhanced and not in situations where the defendant’s
increased sentence under the Guidelines is within the statutory range.” United States
v. Allen, 24 F.3d 1180, 1184 (10th Cir. 1994) (quotation omitted and alterations
adopted). Crisp was convicted under 21 U.S.C. § 841(b)(1)(A), which provides for a
sentence of not “less than 10 years or more than life.” Because the career offender
enhancement provided by USSG § 4B1.1 falls within this statutory range, the district
court did not err by considering a predicate offense that was not included in the
§ 851(a)(1) information.
B
Crisp argues that the district court erred by reducing his sentence by only
fourteen months, both because it did not give him the benefit of certain Guidelines
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amendments in recalculating the Guidelines range and because the court should not
have considered the 18 U.S.C. § 3553(a) factors. 3 “Because the [First Step Act]
gives the district court broad discretion to grant or deny [a motion for sentence
reduction], we review the district court’s decision only for an abuse of that
discretion.” Mannie, 971 F.3d at 1155.
We find no abuse of discretion here. First, the district court correctly declined
to give Crisp the benefit of Guidelines amendments adopted after his original
sentencing. See Brown, 974 F.3d at 1144 (holding that district courts cannot
consider “revised Guidelines instead of the Guidelines used at the original
sentencing” in ruling on a First Step Act motion). Second, the court acted within its
discretion in considering the § 3553(a) factors in declining to reduce Crisp’s sentence
further. See id. at 1146 n.5 (recognizing that “the § 3553(a) factors may be
considered in a First Step Act proceeding”); Mannie, 971 F.3d at 1158 n.18 (holding
the § 3553(a) factors “are permissible, although not required, considerations when
ruling on a 2018 [First Step Act] motion”).
3
For the first time in his reply brief, Crisp claims the district court erred by
considering the drug weight (680 grams) in calculating his Guidelines range because
the weight was not alleged in the indictment or found beyond a reasonable doubt by a
jury. See Aplt. Reply Br. at 12-15 (relying on Alleyne v. United States, 570 U.S. 99
(2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000)). Though we need not
address this new argument, see Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000),
we note that it fails because Crisp stipulated in the plea agreement that “for guideline
calculation purposes the amount of cocaine base involved was approximately 680
grams.”
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C
Finally, Crisp argues that the district court erred by not holding a hearing on
his motion. A movant under the First Step Act “is not entitled to a hearing.”
Mannie, 971 F.3d at 1157. There is also “no requirement that district courts hold a
hearing in a § 3582(c)(2) sentence-reduction proceeding.” United States v. Chavez-
Meza, 854 F.3d 655, 657 (10th Cir. 2017), aff’d, 138 S. Ct. 1959 (2018). “[W]e
review the [district] court’s decision to proceed without a hearing only for an abuse
of discretion.” Mannie, 971 F.3d at 1157. The district court concluded that a hearing
was unnecessary, and having thoroughly reviewed the record, we find no abuse of
discretion in the district court’s decision to proceed without one. See id.
III
The district court’s judgment is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Senior Circuit Judge
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