United States v. Michael Lucas , 636 F. App'x 296 ( 2016 )


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  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 16a0038n.06
    No. 15-3852
    UNITED STATES COURT OF APPEALS                             FILED
    FOR THE SIXTH CIRCUIT                            Jan 22, 2016
    DEBORAH S. HUNT, Clerk
    UNITED STATES OF AMERICA,                               )
    )
    Plaintiff-Appellee,                              )
    )
    ON APPEAL FROM THE
    v.                                                      )
    UNITED STATES DISTRICT
    )
    COURT FOR THE
    MICHAEL DONTAE LUCAS,                                   )
    NORTHERN DISTRICT OF
    )
    OHIO
    Defendant-Appellant.                             )
    )
    )
    BEFORE:        COLE, Chief Judge; SUHRHEINRICH and ROGERS, Circuit Judges.
    SUHRHEINRICH, Circuit Judge.            Defendant-Appellant Michael Lucas (“Lucas”)
    appeals the district court’s denial of his unopposed motion for reduction of his sentence pursuant
    to 18 U.S.C. § 3582(c)(2). For the following reasons, we AFFIRM.
    I.
    On December 13, 2010, Lucas, then 29 years of age, pleaded guilty to possessing with
    intent to distribute crack cocaine and was sentenced to 72 months of imprisonment. The plea
    agreement establishes that on August 30, 2010, a detective from the Akron Police Department
    Street Narcotics Uniform Detail was informed about an impending drug transaction in the area of
    Vernon Odom Boulevard and Diana Street, Akron, Ohio. The informant indicated that Lucas
    would be driving a blue Ford F-150 pickup truck. Officers set up surveillance and observed a
    blue Ford F-150 pickup truck arrive, an individual later identified as Lucas, enter a residence in
    No. 15-3852, USA v. Lucas
    the area, and exit from the residence and depart in the blue Ford F-150 pickup truck a short time
    later. Lucas was quickly stopped for a traffic violation, jumped from his still-moving vehicle,
    and fled on foot. As he fled, officers observed that a t-shirt and plastic bag had fallen out of
    Lucas’s shorts, which they recovered. The bag contained 25.56 grams of cocaine base (“crack”).
    As a result, Lucas was charged with, and pleaded guilty to, violating 21 U.S.C. § 841(a)(1) and
    (b)(1)(C).
    The presentence report set Lucas’s base offense level at 24 based on the 25.56 grams of
    crack. U.S.S.G. § 2D1.1(c)(8), amended by U.S.S.G. Supp. App. C Amend. 782. It reduced the
    offense level by two points for acceptance of responsibility, U.S.S.G. § 3E1.1(a), and noted that
    the government would request an additional one-point reduction, giving Lucas a total offense
    level of 21. At a Criminal History Category III, the resulting Guidelines range was 46 to 57
    months.
    On February 23, 2011, the district court varied upward and sentenced Lucas to
    72 months’ imprisonment, effectively a three-level upward variance. Lucas did not appeal the
    sentence.
    On November 1, 2014, the United States Sentencing Commission passed retroactive
    amendments to the Sentencing Guidelines, which lowered all base offense levels for drug
    offenses described in Guidelines U.S.S.G. § 2D1.1 and 2D1.11 by two levels. See U.S.S.G.
    Supp. App. C Amend. 782 (eff. Nov. 1, 2014); see also 
    id. Amend. 788
    (making Amendment
    782 retroactive). On February 12, 2015, Lucas filed an unopposed motion for sentence reduction
    pursuant to § 3582(c)(2), requesting a reduction to 57 months based on an amended total offense
    level of 22, with a Guidelines range of 51 to 63 months. Attached to the motion were several
    exhibits detailing his remorse and rehabilitative efforts.
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    No. 15-3852, USA v. Lucas
    In an Order and Decision dated July 28, 2015, the district court denied Lucas’s
    unopposed motion for a sentence reduction. First, the district court recognized that Lucas was
    eligible for a sentence reduction. Next, the court detailed Lucas’s criminal history, noting that
    “Defendant has been involved with the criminal justice system since the age of 19 and has eight
    prior convictions ranging from burglary to possession of cocaine to assault to having weapons
    under disability.”1 After detailing the facts of Lucas’s prior convictions, the court concluded that
    based on “the nature and circumstances of the offense and the Defendant’s history and
    characteristics, continued incarceration is necessary to protect the public and afford adequate
    deterrence to further criminal conduct.” The court found that the current sentence of 72 months
    reflected the seriousness of the offense and provided just punishment, in light of Amendment
    782. The court therefore concluded that “a further sentencing reduction is inappropriate at this
    time.” Lucas appeals that determination.
    II.
    This court reviews a district court’s denial of a motion for sentence reduction under
    § 3582(c)(2) for abuse of discretion. United States v. McClain, 
    691 F.3d 774
    , 776 (6th Cir.
    2012). A court abuses its discretion when it relies on clearly erroneous facts, improperly applies
    the law, or uses an erroneous legal standard. United States v. Washington, 
    584 F.3d 693
    , 695
    (6th Cir. 2009).
    Section 3582(c) gives a district court limited authority “to 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.” 18 U.S.C. § 3582(c). “The statute thus establishes a two-step inquiry.
    1
    Ohio law makes it illegal for any person convicted of a felony offense involving illegal possession or sale of drugs
    to have, carry, or use a firearm “[u]nless relieved from disability under operation of law or legal process.” Ohio
    Rev. Code § 2923.13(A)(3).
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    No. 15-3852, USA v. Lucas
    A court must first determine that a reduction is consistent with § 1B1.10 before it may consider
    whether the authorized reduction is warranted, either in whole or in part, according to the factors
    set forth in § 3553(a).” Dillon v. United States, 
    560 U.S. 817
    , 826 (2010).
    As the district court correctly recognized, Lucas qualified for a reduced sentence under
    Guidelines Amendment 782. Thus, with a revised total offense level 22 and a Criminal History
    Category III, Lucas would be eligible for a reduced sentencing range of 51 to 63 months.
    At issue is the district court’s discretionary denial of Lucas’s request for a sentence reduction.
    Lucas offers three reasons why that denial was an abuse of discretion.
    First, Lucas contends that the district court made an incorrect finding of his criminal
    history. In its order, the court stated that Lucas’s prior convictions included burglary. Lucas
    points out that he has never been convicted of burglary and that the presentence report actually
    indicates that he was arrested for burglary at age 15, but that no charges were filed. Presentence
    Report 6. Granted, Lucas does not have a conviction for burglary. But as the government
    observes, this misstatement does not detract from the district court’s determination that
    continued incarceration was necessary to protect the public and deter Lucas from further criminal
    conduct.   The district court correctly considered that Lucas’s adult criminal convictions
    commenced at age 19 and included multiple prior convictions. As the district court explained,
    Lucas’s other conduct included fleeing from police, being a felon in possession of firearms while
    on community control, and causing a head injury to one of his children while attacking the
    baby’s mother. Indeed, the presentence report reflects that Lucas has nine convictions as adult:
    four times for driving with a suspended license, twice for possessing cocaine, once for assault,
    once for obstructing official business, and once for being a felon in possession of a weapon while
    under community control.      Presentence Report 7-10.      Thus, the district court was rightly
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    No. 15-3852, USA v. Lucas
    “troubled by the Defendant’s significant criminal history and his propensity to flee from law
    enforcement, carry weapons and commit violence on others, all while continuing to sell crack in
    the community.” The district court acknowledged the fact that Lucas “seem[ed] to have done
    well while in custody,” but felt that this factor did not outweigh the risk to the community.
    In short, the court did not abuse its discretion.2
    Second, Lucas complains that the district court twice stated, when considering the
    § 3553(a) factors, that “further” reduction was not appropriate at this time. As the government
    points out, “this was not a point of legal or factual significance.” Appellee’s Br. 13. In its
    decision, the court correctly outlined the factual and procedural background and never stated that
    Lucas’s sentence was previously reduced. The word choice was harmless.
    Third, Lucas argues that the district court utilized an incorrect legal standard because it
    did not rely on Freeman v. United States, 
    131 S. Ct. 2685
    (2011). Freeman states that “[s]ection
    3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later
    prove unjustified,” and that “[t]here is no reason to deny § 3582(c)(2) relief to defendants who
    linger in prison pursuant to sentences that would not have been imposed but for a since-rejected,
    excessive range.” 
    Id. at 2690.
    Freeman does not state, let alone hold, that § 3582(c)(2) requires
    district courts to lower a term of imprisonment simply because the Sentencing Commission
    issues a retroactive amendment lowering the sentencing guidelines. Freeman was a plurality
    decision, and Justice Sotomayor’s concurrence constitutes the holding. See United States v.
    Thompson, 
    714 F.3d 946
    , 949 (6th Cir. 2013). That holding is simply that “when a [Rule
    11(c)(1)](C) agreement expressly uses a Guidelines sentencing range to establish the term of
    imprisonment, and that range is subsequently lowered by the Commission, the defendant is
    2
    Lucas does not contend on appeal that the district court abused its discretion by giving insufficient weight to his
    efforts at rehabilitation.
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    No. 15-3852, USA v. Lucas
    eligible for sentence reduction under § 3582(c)(2).” 
    Freeman, 131 S. Ct. at 2698
    (Sotomayor, J.,
    concurring). Indeed, Lucas does not have a right to a reduced sentence, United States v. Curry,
    
    606 F.3d 323
    , 330 (6th Cir. 2010); U.S.S.G. § 1B1.10 cmt. background (noting that a reduction
    under § 1B1.10 is discretionary and “does not entitle a defendant to a reduced term of
    imprisonment as a matter of right”), “even if the retroactive amendment has lowered the
    guideline range.” United States v. Ursery, 
    109 F.3d 1129
    , 1137 (6th Cir. 1997).
    Dillon lays out the proper legal standard for reviewing § 3582(c)(2) motions. That is, the
    district court first determines whether the defendant is eligible for a sentence reduction. If
    eligible, the district court must then “consider any applicable § 3553(a) factors and determine
    whether, in its discretion, the reduction authorized by reference to the policies relevant at step
    one is warranted in whole or in part under the particular circumstances of the case.” 
    Dillon, 560 U.S. at 827
    . One of those factors is the need “to protect the public from further crimes of the
    defendant.” 18 U.S.C. § 3553(a)(2)(C); see also U.S.S.G. § 1B1.10 cmt. n.1(B)(ii) (stating that
    the court “shall consider the nature and seriousness of the danger to any person or the community
    that may be posed by a reduction in the defendant’s term of imprisonment”). This court has
    affirmed the denial of a motion for a sentence reduction despite a retroactive Guideline
    amendment lowering the sentencing range where the district court found that the defendant had a
    lengthy criminal history, recklessly created a danger to the public when fleeing from law
    enforcement prior to his arrest, and repeatedly flouted the law. See United States v. Stevenson,
    332 F. App’x 261, 262-63 (6th Cir. 2009). The district court in this case did not abuse its
    discretion by focusing on Lucas’s history of criminal conduct, because it was required to
    determine whether Lucas posed a risk to public safety.
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    No. 15-3852, USA v. Lucas
    Finally, Lucas asks us to remand his case and reassign it to a different judge. However,
    as noted, Lucas was not entitled to a reduction as a matter of right, and he has not shown that the
    district court abused its discretion. The fact that the district court has been the only one in the
    Northern District of Ohio to deny unopposed motions after Amendment 782 does not establish
    abuse of discretion.3 Because a remand is not warranted, a reassignment is not necessary.
    III.
    The judgment of the district court is AFFIRMED.
    3
    Lucas points out in his brief that the district court has granted two unopposed motions for sentence reduction.
    -7-