United States v. Troy Fuller ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2177
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
G REGORY F ORMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 02-CR-20019-002—Michael P. McCuskey, Chief Judge.
No. 08-2192
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARVIN C HILDRESS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:01 CR 98—James T. Moody, Judge.
2 Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063
No. 08-2248
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T ROY F ULLER,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-20078—Michael P. McCuskey, Chief Judge.
No. 08-2629
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT G AINES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 93 CR 350-8—Marvin E. Aspen, Judge.
Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063 3
No. 08-3063
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCO D. M C K NIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-10060—Joe Billy McDade, Judge.
S UBMITTED D ECEMBER 22, 2008 Œ —D ECIDED JANUARY 22, 2009
Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
P ER C URIAM. Late last year the Sentencing Commission
reduced the base-offense levels for crack-cocaine offenses
and made the changes retroactive. See U.S.S.G. § 2D1.1(c);
U.S.S.G., Supp. to App. C 226-31 (2008) (Amendment 706).
Since then scores of convicted crack offenders have re-
turned to the district courts to request sentence reduc-
tions under 18 U.S.C. § 3582(c)(2). But not everyone is
eligible; we have consolidated for decision five appeals,
Œ
After examining the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeals
are submitted on the briefs and the record. See F ED . R. A PP .
P. 34(a)(2).
4 Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063
each from a denial of a motion under § 3582(c)(2), that
illustrate several common barriers to sentence modifica-
tion.
Section 3582(c)(2) permits a court to reduce the term of
imprisonment if the defendant’s sentencing range “has
subsequently been lowered by the Sentencing Commis-
sion” and “such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.”
If that first condition is not met, a district court lacks
subject-matter jurisdiction to consider the movant’s
request for a sentence reduction under § 3582(c)(2).
United States v. Poole, No. 08-2328, 2008 WL 5264410, at *2-3
(7th Cir. Dec. 19, 2008); United States v. Lawrence, 535
F.3d 631, 637-38 (7th Cir. 2008). As for the second condi-
tion, Application Note 1(A) of U.S.S.G. § 1B1.10 provides
that a reduction is inconsistent with that policy state-
ment if “the amendment does not have the effect of
lowering the defendant’s applicable guideline range
because of the operation of another guideline or statutory
provision (e.g., a statutory mandatory minimum term of
imprisonment).”
The operation of a statutory provision is what foils
Troy Fuller’s appeal. In September 2003 he pleaded guilty
to possession with intent to distribute crack, see 21
U.S.C. § 841(a)(1), and conspiracy to commit money
laundering, see 18 U.S.C. § 1956. The guidelines sen-
tencing range was 324 to 405 months, but the govern-
ment moved for a shorter sentence in light of Fuller’s
substantial assistance. See U.S.S.G. § 5K1.1. The district
court granted the motion and imposed a sentence of
Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063 5
120 months—the statutory minimum. 21
U.S.C. § 841(b)(1)(A)(iii). Five years later Fuller asked the
district court to reduce his sentence further under
§ 3582(c)(2). The court denied his request because Amend-
ment 706 did not reduce Fuller’s applicable guidelines
range; he had already received the lowest sentence possi-
ble.
Fuller appeals, insisting that he is entitled to a sen-
tence reduction below the statutory minimum on the
basis of his previous cooperation with the government. He
is mistaken. Nothing in § 3582(c)(2) permits a court to
reduce a sentence below the mandatory minimum. See
Kimbrough v. United States, 128 S.Ct. 558, 574 (2007) (“[A]s
to crack cocaine sentences in particular, we note [that]
district courts are constrained by the mandatory mini-
mums Congress prescribed in the 1986 Act.”); Poole,
No. 08-2328, 2008 WL 5264410, at *2-3; United States v.
Green, 532 F.3d 538, 546 n.8 (6th Cir. 2008); United States v.
Black, 523 F.3d 892, 892-93 (8th Cir. 2008). Indeed, apart
from two exceptions that do not come into play here—18
U.S.C. § 3553(e) and (f)—a district court can never
impose a sentence below the statutory minimum. See
United States v. Simpson, 337 F.3d 905, 909 (7th Cir. 2003).
Marco McKnight faces a different obstacle: he already
served his original sentence in full. In 2002 McKnight
pleaded guilty to possession with intent to distribute
crack, see 21 U.S.C. § 841(a)(1), for which he received a
sentence of 60 months. He served the sentence and was
released, but the court revoked his supervised release
in 2006 when he failed a series of drug tests. For those
6 Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063
fresh violations, the court ordered 60 months’ reimprison-
ment. Then came Amendment 706, and McKnight urged
the court to reduce his sentence on the ground that his
reimprisonment term is “simply part of the whole matrix
of punishment” for his original crack offense. The
court disagreed, noting that “the crack cocaine
amendment . . . has no direct effect upon the supervised
release revocation sentence which he is now serving.”
What is more, the court continued, “[t]he Sentencing
Commission has also clearly stated that only defendants
imprisoned as a result of an ‘original’ sentence qualify for
a § 3582(c)(2) sentence reduction.” See U.S.S.G. § 1B1.10,
cmt. n.4(A).
On appeal McKnight renews his contention that his
reimprisonment term is an extension of his original
sentence and that therefore he is entitled to a sentence
reduction after Amendment 706. He reasons that his
initial term of supervised release (eight years) was
imposed at the same time as his original prison sentence,
so the revocation of that release—and the attendant
reimprisonment term—are all one and the same for the
purposes of § 3582(c)(2). Not so. As the district court
recognized, Application Note 4(A) to U.S.S.G. § 1B1.10
anticipates—and forecloses—that argument: “This
section does not authorize a reduction in the term of
imprisonment imposed upon revocation of supervised
release.”
McKnight relies on United States v. Etherton, 101 F.3d 80,
81 (9th Cir. 1996), which held that § 3582(c)(2) permitted
a district court to reduce a reimprisonment term based
Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063 7
solely on a retroactive change in the guidelines that
lowered the base offense level for the underlying offense.
But Etherton sought to answer a question left open by the
guidelines in effect at the time. One year later, in 1997, the
Sentencing Commission filled the gap with Application
Note 4(A), and no court has relied on Etherton since.
We turn to Gregory Forman, who in 2002 pleaded guilty
to possession with intent to distribute crack. See 21
U.S.C. § 841(a)(1). Given the amount of crack attributed
to him, his base offense level would have been 28. See
U.S.S.G. § 2D1.1(c) (2002). But Forman was also a career
offender, a classification that increased his base offense
level to 34 and placed him in criminal history category VI.
See id. § 4B1.1. That combination produced a guidelines
range of 262 to 327 months, and the court imposed
262 months’ imprisonment.
In 2008 Forman asked the district court to reduce his
sentence pursuant to § 3582(c)(2) in light of Amendment
706. The court appointed a federal defender to rep-
resent him. Counsel moved to withdraw after concluding
that the amendment did not lower Forman’s applicable
guidelines range, which, according to counsel, was driven
entirely by Forman’s career-offender status. The court
granted the motion to withdraw but nevertheless invited
Forman to explain, pro se, how Amendment 706 benefits
him. Forman responded and moved the court to appoint
him another attorney. A week later the court denied both
of Forman’s motions, writing that “this court agrees with
Defendant’s counsel that, because Defendant was sen-
tenced upon the applicable career offender guideline
8 Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063
range rather than the crack cocaine guideline range, he
cannot receive a reduction in his sentence based upon
the retroactive amendment to the sentencing guideline
range regarding crack cocaine sentencing.”
Forman challenges the denial of his § 3582(c)(2) motion
and the denial of his motion to (again) appoint counsel.
He cannot prevail in his pursuit of a lesser sentence
because Amendment 706 provides no benefit to career
offenders. See United States v. Liddell, 543 F.3d 877, 882 n.3
(7th Cir. 2008); United States v. Sharkey, 543 F.3d 1236, 1239
(10th Cir. 2008); United States v. Moore, 541 F.3d 1323, 1327-
28 (11th Cir. 2008); United States v. Thomas, 524 F.3d 889, 890
(8th Cir. 2008); see also Harris, 536 F.3d at 813 (“[A] sentence
entered under the career offender guideline, § 4B1.1, raises
no Kimbrough problem because to the extent it treats
crack cocaine differently from powder cocaine, the dispar-
ity arises from a statute, not from the advisory guide-
lines.”). Forman’s guidelines range was 262 to 327 months
before Amendment 706, and it remains so. Here, “the
amendment does not have the effect of lowering the
defendant’s applicable guideline range because of the
operation of another guideline”—namely the career-
offender provision. U.S.S.G. § 1B1.10, cmt. n.1(A).
As for the denial of Forman’s motion to appoint addi-
tional counsel, there is no right to counsel when bringing
a motion under § 3582(c)(2). See, e.g., United States v.
Tidwell, 178 F.3d 946, 949 (7th Cir. 1999), cert. denied, 528
U.S. 1023 (1999); see also United States v. Legree, 205 F.3d 724,
730 (4th Cir. 2000); United States v. Townsend, 98 F.3d 510,
512-13 (9th Cir. 1996); United States v. Whitebird, 55 F.3d
Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063 9
1007, 1011 (5th Cir. 1995); United States v. Reddick, 53 F.3d
462, 463-65 (2d Cir. 1995).
We turn to Marvin Childress, who in 2002 pleaded guilty
to distributing crack and was sentenced to 135 months. See
21 U.S.C. § 841(a)(1). The district court denied
Childress’s § 3582(c)(2) motion; Childress had been held
accountable for at least 4.5 kilograms of crack cocaine
at sentencing and therefore Amendment 706 would not
affect his sentence.
On appeal Childress challenges the court’s drug-quantity
finding. He points to his plea agreement, which states
that he was accountable only “for distributing more
than 1.5 kilograms of cocaine base.” But the court, on the
basis of the calculations in the presentence investigation
report, found that Childress was accountable for “at least
17.1 kilograms of crack cocaine.” As he was advised at his
plea colloquy, the drug quantity stated in the plea agree-
ment did not bind the court. See U.S.S.G. § 6B1.4(d) (parties
can stipulate to facts as part of plea agreement, but court is
not obligated to accept stipulation); see also United States
v. Williams, 198 F.3d 988, 994 (7th Cir. 1999). Moreover, he
could not benefit from Amendment 706 because that
amendment affects only defendants who are responsible
for distributing fewer than 4.5 kilograms of crack cocaine.
See U.S.S.G. § 2D1.1(c)(1). Because the sentencing court
found him responsible for 4.5 kilograms or more,
Childress’s base offense level remains 38 under the
current version of § 2D1.1(c)(1) and a sentence reduction
is not authorized. See id. § 1B1.10(a)(2)(B).
10 Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063
Finally we have Robert Gaines, who is serving a 360-
month prison sentence for dealing crack cocaine. See
21 U.S.C. §§ 846, 841(a)(1). After the district court denied
his § 3582(c)(2) motion, which was based on Amendment
706, Gaines moved to reduce his sentence on the basis of
an entirely different 1994 amendment, which had reduced
the base offense level for drug crimes involving 1.5 or
more kilograms of crack. See U.S.S.G. app. C vol. I, Amend.
505. The government recommended that Gaines receive
the benefit of Amendment 505, which would reduce the
low end of his imprisonment range from 360 to 262
months, but the district court, in a one-sentence order,
responded that “Gaines’ motion for sentencing reduction
and full re-sentencing hearing is denied.”
The district court’s order does not comply with Circuit
Rule 50, which requires that whenever a district court
resolves a claim on the merits or terminates the litigation
in its court, “the judge shall give his or her reasons, either
orally on the record or by written statement.” Noncompli-
ance with this rule does not always prevent us from
reviewing a district court’s decision; the court’s reasoning
may be apparent from the record. E.g., Ross Bros. Constr.
Co., Inc. v. Int’l Steel Servs., Inc., 283 F.3d 867, 872 (7th Cir.
2002). But this is not such a case. In fact the United States
has confessed error and suggested that the district court
may not have evaluated Gaines’s motion. We cannot
determine this, and so the appropriate remedy for the
violation of Rule 50 is a limited remand, directing the
district court to explain the reasons for its decision.
W. States Ins. Co. v. Wis. Wholesale Tire, Inc., 148 F.3d 756,
759-60 (7th Cir. 1998).
Nos. 08-2177, 08-2192, 08-2248, 08-2629, 08-3063 11
Accordingly, we issue a L IMITED R EMAND in Gaines’s
case, but we A FFIRM the judgments in Fuller, McKnight,
Forman, and Childress.
1-22-09