900 F.3d 706 (5th Cir. 2018), 15-10874, United States v. Calton

Docket Nº:15-10874, 17-10541
Citation:900 F.3d 706
Opinion Judge:JENNIFER WALKER ELROD, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Theresa CALTON, Defendant-Appellant.
Attorney:Brian W. Portugal, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX. for Plaintiff-Appellee. James Matthew Wright, Assistant Federal Public Defender, Jason Douglas Hawkins, Federal Public Defender, Federal Publi...
Judge Panel:Before JOLLY, ELROD, and WILLETT, Circuit Judges.
Case Date:August 20, 2018
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 706

900 F.3d 706 (5th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee,

v.

Theresa CALTON, Defendant-Appellant.

Nos. 15-10874, 17-10541

United States Court of Appeals, Fifth Circuit

August 20, 2018

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Appeals from the United States District Court for the Northern District of Texas, John H. McBryde, U.S. District Judge

Brian W. Portugal, Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX. for Plaintiff-Appellee.

James Matthew Wright, Assistant Federal Public Defender, Jason Douglas Hawkins, Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Amarillo, TX, for Defendant-Appellant.

Before JOLLY, ELROD, and WILLETT, Circuit Judges.

OPINION

JENNIFER WALKER ELROD, Circuit Judge:

Theresa Calton was sentenced to 262 months in prison for conspiracy to distribute crack cocaine. Calton filed two sentence-reduction motions under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United States Sentencing Guidelines. The district court denied both motions. Calton timely appealed the denial of her second sentence-reduction motion and also timely appealed the denial of another related motion. We consolidated the appeals. Because no jurisdictional or procedural hurdle bars Calton’s consolidated appeal and because the district court erred in determining that it lacked authority to reduce Calton’s sentence pursuant to Amendment 782 of the Guidelines, we VACATE the district court’s decision denying Calton’s successive § 3582(c)(2) motion and REMAND for reconsideration of the motion.

I.

Theresa Calton sold crack cocaine to undercover police officers numerous times in 2009 and 2010. When officers attempted to arrest Calton, she fled in her vehicle, in which she then rammed a law enforcement vehicle, crossed several medians, and reached speeds of 80 to 100 miles per hour. She afterwards abandoned her vehicle and was later arrested. Calton pleaded guilty without a plea agreement to conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. Calton’s amended pre-sentence report (PSR) held her accountable for distributing 423.07 grams of crack cocaine, which, when combined with two upward adjustments, gave her an offense level of 37. In the addendum to the PSR, the Probation Officer indicated that the career-offender provisions of Guideline § 4B1.1(B) applied to Calton based in part

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on her prior felony convictions. However, according to the Probation Officer in the addendum to the PSR, because Calton’s drug-quantity offense level (37) was higher than her career-offender offense level (34), Calton’s Guidelines range would be based on drug quantity. After a downward adjustment, her total offense level was 34 and her Guidelines range was 262 to 327 months’ imprisonment.

At the sentencing hearing, the district court adopted the conclusions and factual findings of the PSR as modified or supplemented by the addendum. Thus, the district court concluded that Calton’s total offense level was 34 and her Guidelines range was 262 to 327 months’ imprisonment. The district court stated that it was "persuaded that [Calton’s] sentence should be at the very bottom of the guideline range." Accordingly, the district court sentenced Calton to 262 months’ imprisonment to be followed by five years of supervised release.

In December 2014, Calton, proceeding pro se, submitted a form motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c). She requested a reduction based on Amendment 782 to Guideline § 1B1.10.1 The district court denied Calton’s sentence-reduction motion, stating that Calton was "sentenced as a career offender under the career offender provisions of U.S.S.G. § 4B1.1 instead of the drug quantity provisions of U.S.S.G. § § 2D1.1 or 2D1.11." Calton appealed.

We determined that Calton’s notice of appeal was untimely filed. United States v. Calton, No. 15-10250 (5th Cir. June 16, 2015). However, we noted that Federal Rule of Appellate Procedure 4(b)(4) allows the district court to grant an additional 30 days in which to file a notice of appeal "upon a finding of excusable neglect or good cause." Id. Because Calton’s notice of appeal was filed within 30 days of the district court’s order, we treated the filing as a motion to determine whether Calton was entitled to an extension of time to appeal, and we remanded to the district court for this determination. Id. The district court determined that Calton was not entitled to an extension of time. Concluding that this determination was not an abuse of discretion, we dismissed Calton’s appeal. United States v. Calton, No. 15-10250 (5th Cir. July 21, 2015).

Calton then filed a second § 3582(c)(2) motion for sentence reduction pursuant to Amendment 782, which the district court denied for the same reasons stated in its denial of her initial motion. Calton timely appealed and moved for leave to proceed in forma pauperis (IFP). In our order granting Calton’s motion for leave to appeal IFP, we concluded that "the district court erred by concluding that it lacked the authority to reduce Calton’s sentence pursuant to § 3582(c)(2)." United States v. Calton, No. 15-10874, at 3 (5th Cir. Mar. 16, 2016). However, we also noted that Calton might be "procedurally barred from obtaining relief due to having previously filed a similar § 3582(c)(2) motion, ... or [by] the doctrines of res judicata or law of the case...." Id. (citations omitted).

Calton, still proceeding pro se, also filed in the district court a document styled as a "Motion Pursuant to [Federal Rule of Civil Procedure] 60." In her motion, Calton again objected to the district court’s denial of her initial § 3582(c)(2) motion. The district court denied the Rule 60 motion, and Calton timely appealed. We consolidated Calton’s appeal from the denial of her Rule 60 motion with her appeal from the denial of her second § 3582(c)(2) motion, appointed

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counsel, and ordered supplemental briefing in this consolidated appeal.

II.

"[T]he district court’s decision whether to reduce a sentence is reviewed for abuse of discretion," but a district court’s conclusion that it could not reduce a sentence based on an interpretation or application of the Guidelines is reviewed de novo . United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). "We review de novo whether the district court had jurisdiction to resentence." United States v. Garcia, 606 F.3d 209, 212 n.5 (5th Cir. 2010) (quoting United States v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997) ).

III.

A.

"[E]very federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934) ). Thus, we consider first whether the district court had jurisdiction to consider Calton’s successive § 3582(c)(2) motion. Under 18 U.S.C. § 3582(c)(2): [I]n 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 ..., upon motion of the defendant ..., the court may 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.

We have determined that a district court may have jurisdiction to consider an initial § 3582(c)(2) motion. See

Garcia, 606 F.3d at 211-14, 212 n.5 (concluding that the district court had jurisdiction under § 3582(c)(2) to modify defendant’s sentence because the sentence was based on the Guidelines). However, whether a district court has jurisdiction to consider a successive § 3582(c)(2) motion is a question of first impression for our circuit.2

While we have not yet addressed whether a district court has jurisdiction to consider a successive § 3582(c)(2) motion, every sister circuit that has considered the issue has answered the question in the affirmative. See

Weatherspoon, 696 F.3d at 421 (determining that the district court had subject-matter jurisdiction to consider a successive § 3582(c)(2) motion because "congressional silence does not support an inference that Congress has ‘clearly stated’ its intent to limit a district court’s jurisdiction to one § 3582(c)(2) motion"); United States v. May, 855 F.3d 271, 274 (4th Cir.) ("Although we have previously prohibited 18 U.S.C. § 3582(c)(2)-based motions for reconsideration ..., we understand this

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prohibition to be nonjurisdictional...."), cert. denied, __ U.S. __, 138 S.Ct. 252, 199 L.Ed.2d 124 (2017); United States v. Beard, 745 F.3d 288, 291 (7th Cir. 2014) (rejecting the proposition that "§ 3582(c)(2)’s limitation on when a sentence modification is permitted strips the district court of subject-matter jurisdiction to consider an impermissible successive motion"); United States v. Trujillo, 713 F.3d 1003, 1005 (9th Cir. 2013) (rejecting the government’s contention that the district court lacked jurisdiction to consider a second § 3582(c)(2) motion); United States v. Caraballo-Martinez, 866 F.3d 1233, 1243 (11th Cir.) (stating that "§ 3582(c)(2) contains no language that places a limitation on the district courts jurisdiction to consider successive motions based on the same amendment to the Sentencing Guidelines" and therefore holding that § 3582(c)(2) has no...

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