United States v. Rasheed Sewell ( 2010 )


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  •                        NOT RECOMMENDED FOR PUBLICATION
                                   File Name: 10a0398n.06
    
                                               No. 09-3408                                  FILED
                                                                                         Jul 02, 2010
                              UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT
    
    UNITED STATES OF AMERICA,                             )
                                                          )
           Plaintiff-Appellee,                            )      ON APPEAL FROM THE
                                                          )      UNITED STATES DISTRICT
                                                          )      COURT FOR THE NORTHERN
    v.                                                    )      DISTRICT OF OHIO
                                                          )
    RASHEED J. SEWELL,                                    )
                                                          )
           Defendant-Appellant                            )
    
    
    BEFORE: MARTIN and GRIFFIN, Circuit Judges; and DUGGAN,* District Judge.
    
    
           DUGGAN, DISTRICT JUDGE. Defendant Rasheed Sewell appeals from the district
    
    court’s denial of his motion to reduce sentence under 18 U.S.C. § 3582(c)(2). Because the career
    
    offender guidelines and not the crack cocaine guidelines controlled Sewell’s original sentence, the
    
    district court correctly concluded that Sewell was not eligible for a sentence reduction pursuant to
    
    § 3582(c)(2). Accordingly, we affirm the denial of his motion.
    
                                                     I.
    
           On January 12, 2000, Sewell pleaded guilty pursuant to a plea agreement to one count of
    
    conspiracy with intent to possess cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. In
    
    the plea agreement, the government agreed inter alia to recommend a three-level reduction of
    
    Sewell’s offense level under United States Sentencing Guideline (“U.S.S.G.”) § 3E1.1 based on his
    
           *
           The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
    Michigan, sitting by designation.
    No. 09-3408                            United States v. Sewell                                Page 2
    
    acceptance of responsibility and to move for a two-level reduction of Sewell’s offense level pursuant
    
    to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 if he provided substantial assistance to the government
    
    in accordance with the agreement.
    
           A Presentence Report (“PSR”) was prepared in aid of Sewell’s sentencing. The PSR
    
    identified Sewell’s base offense level as 28 under U.S.S.G. § 2D1.1 for violating §§ 841(a)(1) and
    
    846. Applying the agreed upon three-level reduction based on his acceptance of responsibility and
    
    considering the government’s anticipated motion for a two-level reduction for substantial assistance,
    
    Sewell had an adjusted offense level of 23. Based on an accompanying criminal history category of
    
    V, the PSR calculated the applicable guideline range for imprisonment as 84-105 months.
    
           Sewell, however, was deemed a career offender under U.S.S.G. § 4B1.1(a) as a result of his
    
    prior convictions of aggravated trafficking in crack cocaine and assault on a law enforcement officer.
    
    The PSR indicated Sewell’s base offense level pursuant to § 4B1.1 as 34, resulting in a total offense
    
    level of 29 after applying the three- and two-level reductions indicated previously. With an enhanced
    
    criminal history category of VI based on his career offender status, see U.S.S.G. § 4B1.1(b), the PSR
    
    calculated the applicable guideline range for imprisonment as 151 to 188 months.
    
           At Sewell’s sentencing on May 1, 2000, the district court adopted the PSR’s factual findings
    
    and granted the government’s § 5K1.1 motion. Pursuant to § 4B1.1(b), because Sewell’s total career
    
    offender offense level (29) was greater than the offense level otherwise applicable (25), the court
    
    determined the applicable guideline range for imprisonment as 151 to 188 months. The district court
    
    sentenced Sewell to a term of imprisonment of 160 months. A panel of this court affirmed Sewell’s
    
    conviction and sentence on direct appeal on September 23, 2002. United States v. Bryant, 46 Fed.
    
    App’x 778, 780-81 (6th Cir. 2002) (unpublished opinion).
    No. 09-3408                           United States v. Sewell                                Page 3
    
           On November 1, 2007, the United States Sentencing Commission promulgated Amendment
    
    706, which amended the Drug Quantity Table in U.S.S.G. § 2D1.1(c). The effect of the amendment
    
    was to adjust downward by two levels the base offense levels assigned to quantities of crack cocaine.
    
    The Sentencing Commission subsequently made Amendment 706 retroactive as of March 3, 2008,
    
    by the enactment of Amendment 713 (collectively “crack cocaine amendments”).
    
           Sewell thereafter filed a motion in the district court seeking a reduction of his sentence
    
    pursuant to § 3582(c)(2) based on the crack cocaine amendments. The district court denied the
    
    motion in a March 24, 2009 opinion and order, concluding that Sewell was not eligible for a sentence
    
    reduction based on the crack cocaine amendments because he was sentenced under the career
    
    offender guidelines which the Sentencing Commission had not lowered. This appeal followed.
    
                                                     II.
    
           On appeal, Sewell claims the district court erred when it concluded that he was ineligible for
    
    a sentence reduction pursuant to § 3582(c)(2). We review a district court’s denial of a motion for
    
    a reduction in sentence pursuant to § 3582(c)(2) for an abuse of discretion. United States v. Perdue,
    
    
    572 F.3d 288
    , 290 (6th Cir. 2009), cert. denied, – U.S. – , 
    130 S. Ct. 1537
     (2010). A district court
    
    abuses its discretion when it relies upon clearly erroneous findings of fact, applies the law
    
    improperly, or uses an erroneous legal standard. Id.
    
           A district court may modify a defendant’s sentence only as authorized by statute. United
    
    States v. Johnson, 
    564 F.3d 419
    , 421 (6th Cir. 2001). Section 3582(c)(2) “permits modification of
    
    a sentence only where the sentence was ‘based on a sentencing range that has subsequently been
    
    lowered by the Sentencing Commission.’” United States v. Parker, 358 Fed. App’x 632, 634 (6th
    
    Cir. 2009) (unpublished opinion) (quoting 18 U.S.C. § 3582(c)(1)) (emphasis added). Sewell’s
    No. 09-3408                            United States v. Sewell                                 Page 4
    
    sentence was “based on” the career offender guidelines– which have not been subsequently lowered
    
    by the Sentencing Commission– rather than the crack cocaine guidelines. Therefore, the district
    
    court properly determined that it lacked the authority to reduce his sentence under § 3582(c)(2).
    
    Perdue, 572 F.3d at 292 (citations omitted).
    
           As the Sentencing Commission’s policy statement provides with respect to sentence
    
    reductions resulting from an amendment to the Guidelines, a modification of a defendant’s sentence
    
    is not authorized if “an amendment listed in subsection (c) [of § 1B1.10] does not have the effect of
    
    lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a) (amended Dec. 11,
    
    2007). There would have been no effect on Sewell’s sentence if Amendment 706 had been in place
    
    when he was sentenced. In accordance with § 4B1.1(b), the higher career offender offense level still
    
    would have been used to determine the applicable guideline range. See U.S.S.G. § 4B1.1
    
           Sewell argues, however, that all provisions in the Sentencing Guidelines are discretionary
    
    and no longer mandatory following the Supreme Court’s decision in United States v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
     (2005), and therefore all applicable Guideline provisions are relevant and
    
    must be considered in achieving a sentence in accordance with 18 U.S.C. § 3553(a). Thus, Sewell
    
    maintains, his sentence necessarily was “based on” the § 2D1.1 total offense level determination that
    
    has been lowered by the crack cocaine amendments. Alternatively, Sewell argues that he was not
    
    sentenced within the career offender guideline because “[t]he district court granted an aggregate five-
    
    level reduction under §§ 3E1.1 and 5K1.1, placing him outside the intended limits of § 1B1.10 . . ..”
    
    Sewell contends that this renders his sentence indistinguishable from the defendants’ sentences in
    
    United States v. Ragland, 
    568 F. Supp. 2d 19
     (D.D.C. 2008), and United States v. Poindexter, 550
    No. 09-3408                            United States v. Sewell                                Page 
    5 F. Supp. 2d 578
     (E.D. Pa. 2008), where the district courts held that the defendants were entitled to
    
    sentence reductions under § 3582(c)(2) as a result of the crack cocaine amendments.
    
           With respect to Sewell’s argument based on Booker, the Supreme Court held in a recently
    
    issued decision that Booker does not expand a court’s authority to modify a defendant’s sentence
    
    pursuant to § 3582(c)(2). Dillon v. United States, 560 U.S. – , 
    2010 WL 2400109
     (June 17, 2009).
    
    Furthermore, a panel of this court previously addressed the same argument that Sewell raises here
    
    and found that it lacked merit. Perdue, 572 F.3d at 292. The panel reasoned: “Even assuming
    
    arguendo that the Sentencing Commission has no authority to limit the district court’s ability to
    
    reduce [a defendant’s] sentence, Congress may certainly cabin the court’s discretion and it does so
    
    expressly in the text of 18 U.S.C. § 3582(c)(2).” Id. (emphasis in original). As another panel of this
    
    court subsequently reasoned in rejecting the same argument:
    
           Booker reiterated that “‘other than the fact of a prior conviction, any fact that increases the
    
    penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
    
    proved beyond a reasonable doubt.’” [Booker, 543 U.S.] at 231, 
    125 S. Ct. 738
     (quoting Apprendi
    
    v. New Jersey, 
    530 U.S. 466
    , 490, 
    120 S. Ct. 2348
    , 
    147 L. Ed. 2d 435
     (2000)). Booker is thus
    
    inapplicable to section 3582(c)(2) proceedings which can only decrease rather than increase a
    
    sentence.
    
           United States v. Berry, 356 Fed. App’x 829, 830-31 (6th Cir. 2009) (unpublished opinion)
    
    (citing United States v. Washington, 
    584 F.3d 6932
    , 699-701 (6th Cir. 2009)).
    
           As to Sewell’s alternative argument, the district court in fact sentenced him pursuant to the
    
    career offender guidelines in § 4B1.1 even though the court applied an aggregate five-level reduction
    
    to his offense level pursuant to §§ 3E1.1 and 5K1.1. For that reason, his case is distinguishable from
    No. 09-3408                            United States v. Sewell                                 Page 6
    
    Ragland and Poindexter. In Ragland, the district court found that treating the defendant as a career
    
    offender– even though he qualified as one under § 4B1.1– would overstate the seriousness of his
    
    criminal history and his likelihood of recidivism. 568 F. Supp. 2d at 19. Similarly, the district court
    
    in Poindexter determined that the career offender guideline overrepresented the defendant’s total
    
    offense level. 550 F. Supp. 2d at 579. Therefore, in both cases, the court departed downward from
    
    the career offender range pursuant to U.S.S.G. § 4A1.3 and sentenced the defendant within the
    
    otherwise applicable guideline range. Id.; Ragland, 568 F. Supp. 2d at 19. While Sewell received
    
    a downward departure, it was not because the district court concluded that the career offender
    
    guideline was inappropriate and applied § 4A1.3. Rather, and unlike the defendants in Ragland and
    
    Poindexter, the 160 months sentence Sewell received was not a downward departure from the career
    
    offender guideline (151 to 188 months) and was not based on the otherwise applicable guideline
    
    range under § 2D1.1 (84 to 105 months).
    
                                                     III.
    
           For these reasons, we AFFIRM the order of the district court.