United States v. Ernest Akers , 892 F.3d 432 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted May 29, 2018 Decided June 15, 2018
No. 17-3095
UNITED STATES OF AMERICA,
APPELLEE
v.
ERNEST AKERS, ALSO KNOWN AS LEROY COE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00313-1)
Ernest Akers, pro se, filed the brief for appellant.
Before: MILLETT, PILLARD, and KATSAS, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: Ernest Akers, proceeding pro se, appeals the
district court’s order denying his motion to reduce his sentence
under 18 U.S.C. § 3582(c)(2). We affirm.
In 2012, Akers pleaded guilty to unlawful distribution of
more than 28 grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii). Because this was Akers’ third
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conviction for a felony controlled-substance offense, his
offense level and criminal history were calculated under the
career-offender provision of the Sentencing Guidelines,
U.S.S.G. § 4B1.1, which yielded an advisory sentencing range
of 188-235 months of imprisonment. However, under Federal
Rule of Criminal Procedure 11(c)(1)(C), Akers and the
government entered into a plea agreement providing for a
sentence of 156 months. Under that rule, a district court must
impose a sentence agreed upon by the parties if it accepts a plea
agreement. Here, the district court accepted the plea
agreement, departed from the Guidelines, and imposed the
agreed-upon sentence of 156 months.
In 2016, Akers moved to reduce his sentence under 18
U.S.C. § 3582(c)(2), based on Amendment 782 to the
Sentencing Guidelines. This amendment, which took effect on
November 1, 2014 and applies retroactively, reduced by two
levels the base offense level for most drug-trafficking offenses,
including the offense of which Akers was convicted. See
U.S.S.G. app. C, amends. 782 (reduction), 788 (retroactivity).
The district court denied Akers’ motion, concluding that Akers
was ineligible for a sentence reduction because Amendment
782 did not lower the sentencing range applicable to career
offenders. Akers appealed, and our review is de novo. See
United States v. Berry, 618 F.3d 13, 16 (D.C. Cir. 2010).
A court may reduce a sentence if it was “based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission,” and the reduction is “consistent with
applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2); see also In re Sealed
Case, 722 F.3d 361, 364 (D.C. Cir. 2013). Although Akers’
sentence was “based on” the Sentencing Guidelines, see
Hughes v. United States, 584 U.S. —, No. 17-155, slip op. at
9 (June 4, 2018), the applicable sentencing range still was not
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“subsequently . . . lowered” by the Sentencing Commission. In
this appeal, Akers does not challenge the district court’s
determination that he is a career offender. The career-offender
guideline “requires taking the greater offense level between the
offense level calculated independent of § 4B1.1, and the career
offender offense level, which is based on the statutory
maximum.” United States v. Lawrence, 662 F.3d 551, 559
(D.C. Cir. 2011). Where, as here, the career-offender provision
produces a higher offense level, the court calculates the
defendant’s sentencing range by “adopt[ing] the offense level
for a career offender . . . and a criminal history category of VI.”
United States v. Tepper, 616 F.3d 583, 587 (D.C. Cir. 2010).
Amendment 782, however, did not lower the offense
levels applicable to career offenders. Rather, it impacted only
offense levels calculated under the drug trafficking guideline,
U.S.S.G. § 2D1.1. Accordingly, the drug trafficking guideline
“played no role in determining” Akers’ sentencing range.
Tepper, 616 F.3d at 587. Thus, the fact that Amendment 782
lowered the sentencing range for Akers’ underlying offense
does not support a sentence reduction under Section
3582(c)(2). See id. (finding defendant ineligible for sentence
reduction when sentencing range was determined by career-
offender provision, not crack cocaine guideline amended by
Sentencing Commission).
Moreover, a reduction of Akers’ sentence would not be
“consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The
governing policy statement is entitled “Reduction in Term of
Imprisonment as a Result of Amended Guideline Range.” In
relevant part, it provides that, “[i]n a case in which a defendant
is serving a term of imprisonment, and the guideline range
applicable to that defendant has subsequently been lowered as
a result of an amendment to the Guidelines Manual[,] . . . any
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such reduction in the defendant’s term of imprisonment shall
be consistent with this policy statement.” U.S.S.G.
§ 1B1.10(a)(1). The statement further provides that “[a]
reduction in the defendant’s term of imprisonment is not
consistent with this policy statement and therefore is not
authorized under 18 U.S.C. § 3582(c)(2) if . . . [an applicable
amendment] does not have the effect of lowering the
defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B). A defendant’s “applicable guideline range”
is the one “produced from the correct application of the
Guidelines,” which, in Akers’ case, is the career-offender
range. See Berry, 618 F.3d at 18. Because Amendment 782
does not lower the career-offender range, a sentence reduction
would be inconsistent with the above policy statement. See id.
at 17-18 (because amendment did not lower career-offender
guideline, reduction in sentence was inconsistent with
Guidelines Section 1B1.10(a)(2)(B) and thus unauthorized by
18 U.S.C. § 3582(c)(2)).
We therefore hold that Akers was ineligible for a sentence
reduction under Section 3582(c)(2), because Amendment 782
did not lower the sentencing range in the career-offender
provision of the Sentencing Guidelines. In so doing, we join
our sister circuits that have addressed this issue. See, e.g.,
United States v. Thomas, 775 F.3d 982, 983 (8th Cir. 2014) (per
curiam) (“Amendment 782 . . . did not lower the sentencing
range established for a career offender by § 4B1.1.”); see also
United States v. Martin, 867 F.3d 428, 433 (3d Cir. 2017)
(same); United States v. Quintanilla, 868 F.3d 315, 321 (5th
Cir. 2017) (per curiam) (same); United States v. Smith, 814
F.3d 802, 804 (6th Cir. 2016) (per curiam) (same). The district
court’s order denying Akers’ motion for a sentence reduction
is affirmed.