United States v. Thomas Fields , 699 F.3d 518 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2012 Decided November 9, 2012
No. 09-3137
UNITED STATES OF AMERICA,
APPELLEE
v.
THOMAS FIELDS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00299-1)
Tony Axam, Jr., Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was
A.J. Kramer, Federal Public Defender. Neil H. Jaffee,
Assistant Federal Public Defender, entered an appearance.
John L. Hill, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen,
Jr., United States Attorney, and Roy W. McLeese III and John
P. Mannarino, Assistant U.S. Attorneys. Elizabeth Trosman,
Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Convicted of distribution and
possession with intent to distribute crack cocaine, appellant
was sentenced before Congress passed the Fair Sentencing
Act of 2010 (FSA), which reduced the disparity between the
treatment of crack and powder cocaine. Appellant now claims
that the FSA applies retroactively to him and that the district
court erred in denying his motion to postpone sentencing until
after passage of the Act. He also challenges the district court’s
decision to impose two additional years of incarceration for
his perjury at trial. For the reasons set forth below, we affirm.
I.
Appellant, Thomas Fields, allegedly sold crack cocaine to
a government agent on two occasions: 27.4 grams the first
time and 115 grams the second time. When arrested a few
months later, Fields had an additional 71.3 grams of crack
packaged for sale. The police also discovered a nine-
millimeter handgun in one of his residences. A grand jury
indicted Fields for distribution and possession with intent to
distribute 50 grams or more of cocaine base (crack),
distribution of five grams or more of cocaine base, and
unlawful possession of a handgun. See 18 U.S.C. § 922(g)(1)
(unlawful possession of a firearm); 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii), 841(b)(1)(B)(iii) (2006) (possession with
intent to distribute and distribution of cocaine base).
At trial, both Fields and his wife testified that they were
in the business of making and selling “scented rocks.” The
business was apparently quite unsuccessful, as neither Fields
nor his wife could identify anyone who had purchased their
rocks. According to Fields, he gave the informant scented
rocks, not crack cocaine, and the money the informant gave
him was payment for gambling debts.
3
The jury convicted Fields for distributing 50 grams or
more of crack and for possessing with intent to distribute
another 50 grams or more, but was unable to reach a verdict
regarding the distribution of the additional five grams. The
jury was also unable to reach a verdict on the unlawful
possession of the gun charge. On the government’s motion,
the district court dismissed the charges on which the jury
hung.
Under the Controlled Substances Act, 21 U.S.C. §§ 801 et
seq., and the related Sentencing Guidelines, § 2D1.1, a drug
trafficker dealing in crack cocaine at the time of Fields’s
conviction was subject to the same sentence as one dealing in
100 times as much powder cocaine. Kimbrough v. United
States, 552 U.S. 85, 91 (2007). The Supreme Court has held
that “the cocaine Guidelines, like all other Guidelines, are
advisory only” and that sentencing courts may conclude that
the crack-to-powder disparity yields a sentence greater than
necessary “even in a mine-run case.” Id. at 91, 109. The
Controlled Substances Act, however, imposed a ten-year
mandatory minimum prison sentence for those convicted of
offenses involving 50 grams or more of crack cocaine, and, as
the Supreme Court explained in Dorsey v. United States, 132
S. Ct. 2321, 2327 (2012), sentencing courts generally have no
authority to go below the mandatory minimum.
Although Fields was scheduled for sentencing on July 8,
2009, he filed a motion to postpone sentencing for four
months. Fields argued that he needed more time to discover
additional evidence regarding a prior state court conviction.
He also wanted sentencing postponed until after passage of
then pending legislation addressing the disparate treatment of
crack and powder cocaine. The district court granted the
4
motion on the first ground, making it clear that it would not
have done so merely because of the pending legislation:
Well, the truth of the matter is that if I sentence him
today and you file a notice of appeal, and Congress
changes the law while the appeal is pending, based
on our history with Booker and Terence Coles in the
D.C. Circuit, as long as there’s an appeal pending he
may well get the benefit of any change of law. He
wouldn’t on collateral attack most likely. But I don’t
know why you think Congress is going to change the
law in four months. . . . I’m certainly not going to
postpone every crack sentencing until Congress acts,
because none of us knows when Congress acts,
whether it’s going to act, what they’re going to do.
Hr’g Tr. 4-6 (July 8, 2009). The court also said, “I believe, but
don’t know for sure, that if Congress were to act while this
case were on appeal, you might well get the benefit of it
anyway.” Hr’g Tr. 22 (July 8, 2009).
Several months later, while granting a second
continuance, the district court shared its thoughts on Fields’s
sentence. The court indicated that the applicable Guidelines
range for Fields’s convictions was 235 to 293 months,
including enhancements for possession of a firearm and
obstruction of justice. The court explained that it imposed the
enhancements because it determined by a preponderance of
the evidence that Fields had possessed the handgun and
perjured himself at trial. See United States v. Settles, 530 F.3d
920, 923 (D.C. Cir. 2008) (“[A] sentencing judge may
consider uncharged or even acquitted conduct in calculating
an appropriate sentence, so long as that conduct has been
proved by a preponderance of the evidence and the sentence
does not exceed the statutory maximum for the crime of
5
conviction.”). Reiterating its disagreement with the crack-
powder disparity, see United States v. Lewis, 623 F. Supp. 2d
42, 45 (D.D.C. 2009) (Friedman, J.) (explaining that the court
“will apply the 1-to-1 ratio in all crack cocaine cases that
come before it for sentencing in the future”), the court
determined that under a one-to-one crack-to-powder
calculation—that is, applying the Guidelines as if Fields had
been convicted of offenses involving powder cocaine—his
sentencing range would be 51 to 63 months, including the two
enhancements. But because the mandatory minimum trumped
this range, “[Fields] doesn’t get punished for perjuring
himself.” Hr’g Tr. 9 (Oct. 29, 2009). The court explained that
the Guidelines range for violations of the perjury statute, 18
U.S.C. § 1621, would be 21 to 27 months incarceration for an
offender with Fields’s characteristics and that it was
considering adding this sentence to the ten-year mandatory
minimum. Hr’g Tr. 9-10 (Oct. 29, 2009).
Denying a third motion for a continuance, the district
court sentenced Fields to two concurrent terms of 144 months
imprisonment—the mandatory minimum for each offense plus
24 months for perjury. In doing so, the court explained: “It
seems to me that I am trumped by what Congress has done in
terms of the mandatory minimum, and I’m stuck with that,
and I can’t do anything about it. But to permit a defendant to
come in knowing in advance that if he’s convicted there will
be ten years, and therefore any perjury is free and can’t be
punished and won’t be punished, just strikes me as wrong, and
strikes me as being an affront to the judicial process and the
judicial system.” Hr’g Tr. 31 (Dec. 11, 2009).
Some eight months after Fields’s sentencing, on August
3, 2010, Congress enacted the Fair Sentencing Act, which
reduced the crack-to-powder cocaine disparity from 100-to-1
to 18-to-1 by increasing the quantity of crack needed to trigger
6
the ten-year mandatory minimum. Dorsey, 132 S. Ct. at 2326.
As amended, the statute now prescribes a mandatory
minimum sentence of five years for offenses involving at least
28 grams of crack and ten years for offenses involving 280 or
more grams. See Fair Sentencing Act of 2010, Pub. L. No.
111-220, § 2, 124 Stat. 2372, 2372 (amending 21 U.S.C. §
841).
On appeal, Fields presses three arguments: that the FSA
applies to him because his case was on appeal when the Act
was passed, that the district court abused its discretion in
refusing to postpone sentencing until after passage of the FSA,
and that the district court erred substantively and procedurally
by adding the additional sentence for perjury to the mandatory
minimum. We consider each argument in turn.
II.
We can easily dispose of Fields’s first argument. In
Dorsey, the Supreme Court held that the more lenient
penalties imposed by the FSA apply to offenders who
committed crimes before the statute’s passage but were
sentenced afterwards. 132 S. Ct. at 2326. And in United States
v. Bigesby, 685 F.3d 1060, 1066 (D.C. Cir. 2012), we squarely
held that the FSA is inapplicable to offenders, like Fields, who
were sentenced before passage of the statute. At oral
argument, however, Fields’s counsel equivocated between
conceding that we were bound by Bigesby, decided the day
after the Supreme Court’s ruling in Dorsey, and disputing “the
reasoning of Bigesby in light of Dorsey because Dorsey . . .
clearly indicates that the savings clause does not prohibit
retroactivity of certain parts of the Fair Sentencing Act.” Oral
Arg. Rec. 18:10-:28. Whatever merit this argument might
otherwise have, Dorsey actually confirms our decision in
Bigesby, for the Court expressly acknowledged that it was
creating a disparity “between pre-Act offenders sentenced
7
before August 3 and those sentenced after that date.” 132 S.
Ct. at 2335. Although this is dictum, “carefully considered
language of the Supreme Court, even if technically dictum,
generally must be treated as authoritative.” United States v.
Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) (internal quotation
marks omitted).
To be sure, the FSA, as interpreted by Dorsey, produces a
certain degree of arbitrariness. Individuals who commit the
same offense on the same day may receive different sentences
based purely on when they are sentenced—a date determined
by the vagaries of the judicial system and not anything related
to the goals of sentencing. But “disparities, reflecting a line-
drawing effort, will exist whenever Congress enacts a new law
changing sentences.” Dorsey, 132 S. Ct. at 2335.
Fields’s challenge to the district court’s refusal to
postpone sentencing until after passage of the FSA also fails.
According to Fields, the district court denied his motion on
the basis of the mistaken notion that Fields would get the
benefit of the FSA so long as his case was pending on appeal
at the time the statute was enacted. Had the district court truly
denied the continuance for this reason, that might well have
amounted to an abuse of discretion. See Kellmer v. Raines,
674 F.3d 848, 851 (D.C. Cir. 2012) (“[B]y definition, a district
court abuses its discretion when it makes an error of law.”
(internal quotation marks omitted)). But the district court
explained that it was uncertain whether the FSA would apply
to Fields and that it saw no reason to “postpone every crack
sentencing until Congress acts, because none of us knows
when Congress acts, whether it’s going to act, what they’re
going to do.” Hr’g Tr. 6 (July 8, 2009). As we have previously
held, this represents a perfectly adequate reason for denying a
continuance. United States v. Lawrence, 662 F.3d 551, 553
(D.C. Cir. 2011) (“Pending legislation is far too removed for
8
this court to compel district courts to consider at sentencing . .
. .”).
Fields makes an array of arguments relating to the 24
month addition to his sentence for perjury. In reviewing
properly preserved sentencing challenges for abuse of
discretion, we ask whether the district court committed any
“‘significant procedural error, such as . . . selecting a sentence
based on clearly erroneous facts.’” Id. at 556 (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)) (alteration in original).
We also consider the sentence’s “substantive reasonableness,”
“tak[ing] into account the totality of the circumstances,
including the extent of any variance from the Guidelines
range.” Gall, 552 U.S. at 51.
Fields argues that the district court double-counted his
trial perjury by adding a term of imprisonment to the
mandatory minimum sentence after already applying the
obstruction of justice enhancement in calculating the two
Guidelines ranges. The district court did no such thing.
Although the court did factor the perjury into its calculation of
the Guidelines ranges, the ten-year mandatory minimum
would have been the same for any defendant convicted of
offenses involving an identical quantity of crack, irrespective
of the perjury. In other words, as the district court explained,
“because of the ten year mandatory minimum, even though
[the perjury is] factored into the guidelines, it’s not separately
punished.” Hr’g Tr. 32 (Dec. 11, 2009).
Nor do we detect any abuse of discretion in the district
court’s decision to add two years for perjury. As the Supreme
Court has held, a sentencing judge may “give consideration to
the defendant’s false testimony observed by the judge during
the trial.” United States v. Grayson, 438 U.S. 41, 42 (1978);
see also United States v. Dunnigan, 507 U.S. 87 (1993).
9
According to Fields, “imposing a separate penalty under [the
perjury statute] provides no additional general deterrence
because a future defendant considering perjury would already
be subject to a prosecution under that statute, albeit, with the
benefit of his constitutional trial rights.” Appellant’s Br. 22.
Although the threat of a separate prosecution on a perjury
charge may deter prospective perjury, the threat of a
sentencing addition on the underlying charge may deter it at
least as effectively. The presence of one hardly undermines
the effectiveness of the other, and Fields has raised no
constitutional objection to using his sentence to deter future
defendants from perjuring themselves.
Next, Fields argues that because an obstruction of justice
enhancement would have added only approximately 12
months under a one-to-one Guidelines calculation, the district
court erred by adding the 24 months. Fields also challenges
the additional 24 months on the grounds that his sentence was
already greater than it should have been due to the unfair
mandatory minimum. The district court never explained why
it added 24 months instead of 12 for one simple reason: Fields
failed to argue in the district court that 12 months was more
appropriate than 24. Furthermore, as the government points
out, Fields received the benefit of a significant downward
variance from the Guidelines range of 235 to 293 months in
effect at the time of his sentencing. As we have explained, a
within-Guidelines sentence is presumptively reasonable.
United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006).
Under these circumstances, Fields’s sentence could hardly be
considered substantively unreasonable. See United States v.
Mejia, 597 F.3d 1329, 1343 (D.C. Cir. 2010) (finding it “hard
to imagine” sentence was substantively unreasonable when
sentence was “two years below the range we ordinarily view
as reasonable”). We appreciate that Fields believes the ten-
year mandatory minimum was unfair and that Congress
10
apparently agreed, at least with respect to defendants
sentenced after the FSA’s enactment. But given that the FSA
does not apply to Fields, its subsequent enactment can have no
effect on the reasonableness of his sentence.
III.
For the reasons stated above, we affirm.
So ordered.