United States v. DeShawn Sims ( 2010 )


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  •                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 File Name: 10a0431n.06
    
                                                      No. 09-1783                                         FILED
                                                                                                       Jul 15, 2010
                                                                                                LEONARD GREEN, Clerk
                                  UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
    
    UNITED STATES OF AMERICA,
    
            Plaintiff-Appellee,
    
    v.                                                            ON APPEAL FROM THE UNITED
                                                                  STATES DISTRICT COURT FOR THE
    DESHAWN SIMS,                                                 EASTERN DISTRICT OF MICHIGAN
    
            Defendant-Appellant.                                           OPINION
    
                                                           /
    
    
    
    
    BEFORE:          BOGGS and CLAY, Circuit Judges; and WISEMAN, District Judge.*
    
            CLAY, Circuit Judge. Defendant, DeShawn Sims, appeals from his reduced sentence
    
    entered by the district court pursuant to 18 U.S.C. § 3582(c) on May 22, 2009. Upon Defendant’s
    
    motion, the district court reduced his previously imposed sentence of 210 months for possession and
    
    distribution of cocaine and cocaine base to 168 months’ incarceration. He argues that the district
    
    court had the authority under United States v. Booker, 
    543 U.S. 220
     (2005) to conduct a full
    
    sentencing hearing and to consider as advisory the amended guidelines range for cocaine base
    
    offenses. See U.S.S.G. Supp.App. C, Amdts. 706 and 713 (reducing applicable offense levels for
    
    
    
    
            *
               The Honorable Thomas A. W iseman, Jr., United States District Judge for the Middle District of Tennessee,
    sitting by designation.
                                                No. 09-1783
    
    certain cocaine base offenses). For the reasons set forth in this opinion, we AFFIRM the district
    
    court’s judgment.
    
                                             BACKGROUND
    
           Defendant was convicted following a jury trial in March 2000 of one count of distribution
    
    of a controlled substance and one count of possession with intent to distribute a controlled substance,
    
    in violation of 21 U.S.C. § 841, and two counts of aiding and abetting in the possession with intent
    
    to distribute a controlled substance, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. He was
    
    sentenced to 262 months’ incarceration. Following habeas proceedings pursuant to 28 U.S.C. §
    
    2255, Defendant was resentenced to 210 months’ incarceration.
    
           After the Sentencing Commission promulgated amendments 706 (lowering the guidelines
    
    ranges for certain cocaine base offenses by lowering the offense level by two) and 713 (making
    
    amendment 706 retroactive), Defendant filed a motion to reduce his sentence pursuant to 18 U.S.C.
    
    § 3582(c) in March 2008. He requested to be sentenced at the low end of the amended guidelines
    
    range, which the district court did in sentencing Defendant to 168 months’ incarceration. This timely
    
    appeal followed.
    
                                               DISCUSSION
    
    I.     Standard of Review
    
           Because this appeal presents a question of law, our standard of review ordinarily would be
    
    de novo. United States v. Carter, 
    500 F.3d 486
    , 488 (6th Cir. 2007). However, because Defendant
    
    did not raise his Booker challenge during the § 3582 proceeding, the government argues that
    
    Defendant has waived this issue by not presenting it to the trial court. See United States v. Hayes,
    
    
                                                      2
                                               No. 09-1783
    
    
    218 F.3d 615
    , 619 (6th Cir. 2000). We retain jurisdiction to consider whether a plain error has
    
    occurred, id. at 619-20, and may review this challenge for plain error.
    
    II.    Analysis
    
           Once a sentence has become final, a district court is without power to impose a new sentence,
    
    except in a few limited circumstances such as those described in 18 U.S.C. § 3582(c). That section
    
    provides that a district court may modify a sentence
    
           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) . . . 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.
    
    18 U.S.C. § 3582(c)(2). The Sentencing Commission issued a policy statement, § 1B1.10, to guide
    
    district courts in reducing sentences, pursuant to several amendments including amendment 706.
    
    That section states, in relevant part, that “the court shall not reduce the defendant’s term of
    
    imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than the
    
    minimum of the amended guideline range determined under subdivision (1) of this subsection.”
    
    U.S.S.G. § 1B1.10(b)(2)(A). This policy statement effectively makes the amended guidelines range
    
    the mandatory lower boundary of the sentencing reduction permitted pursuant to § 3582(c).
    
           Defendant asks this Court to find the policy statement in § 1B1.10(b)(2)(A) unconstitutional
    
    in light of the interpretation of the Sixth Amendment in Booker, which made the sentencing
    
    guidelines advisory for original sentences. See Booker, 543 U.S. at 259. However, clear precedent
    
    from this Circuit and from the Supreme Court forecloses this argument. Dillon v. United States, ---
    
    U.S. ---, 
    2010 WL 2400109
     at *7 (2010) (“Accordingly, [Defendant’s] Sixth Amendment rights were
    
    
                                                     3
                                                No. 09-1783
    
    not violated by the District Court’s adherence to the instruction in § 1B1.10 to consider a reduction
    
    only within the amended Guidelines range.”); United States v. Washington, 
    584 F.3d 693
    , 701 (6th
    
    Cir. 2009) (“We hold that pursuant to 18 U.S.C. § 3582(c)(2), a district court is not authorized to
    
    reduce a defendant’s sentence below the amended Guidelines range.”).
    
           Defendant was sentenced to 168 months’ incarceration, which is the bottom of the guidelines
    
    range that he is subject to under the cocaine base amendments. His Sixth Amendment rights were
    
    not implicated in the § 3582(c) proceeding, and the district court did not have the authority to reduce
    
    his sentence below the amended guidelines range. Therefore, Defendant’s appeal is without merit
    
    regardless of our standard of review.
    
                                              CONCLUSION
    
           For the reasons stated above, we AFFIRM the district court’s order reducing Defendant’s
    
    sentence to 168 months’ incarceration.
    
    
    
    
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Document Info

DocketNumber: 09-1783

Filed Date: 7/15/2010

Precedential Status: Non-Precedential

Modified Date: 12/21/2014