U.S. v. Carter

• Decision Date: 28 January 2010
• Docket Number: No. 08-20235.,08-20235.
• Citation: 595 F.3d 575
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Adrian Lewis CARTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

595 F.3d 575 UNITED STATES of America, Plaintiff-Appellee,
v.
Adrian Lewis CARTER, Defendant-Appellant. No. 08-20235. United States Court of Appeals, Fifth Circuit. January 28, 2010.

[595 F.3d 576]

Julia Bowen Stern, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Timothy William Crooks, Asst. Fed. Pub. Def., Houston, TX, for Carter.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.

PER CURIAM:

Adrian Lewis Carter appeals the denial of his motion to reduce his sentence in response to a recent change to the federal sentencing guidelines for crimes involving crack cocaine. Because Carter's sentence was based on a minimum prescribed by statute, we AFFIRM.

I. Background and Proceedings

In June 2005, Carter pleaded guilty to (1) possession, with intent to distribute, of 50 grams or more of a mixture containing cocaine base (i.e. crack cocaine), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and (2) possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced Carter to 96 months of imprisonment for these offenses, including 36 months for the possession with intent to distribute count, and 60 months for the firearms count.

Only the calculation of the possession count is presently at issue. The district court admonished Carter at the time of his plea that he faced a statutory minimum penalty of 120 months' imprisonment for this count. See 21 U.S.C. § 841(b)(1)(A). This statutory minimum

595 F.3d 577

was greater than the high end of the sentencing guideline range of 87 to 108 months calculated in the Presentence Report.¹ Accordingly, the 120-month statutory minimum became the applicable "guideline sentence." See U.S.S.G. § 5G1.1(b) ("Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence."). Prior to sentencing, the government filed a motion for a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, based on Carter's substantial assistance. As it was permitted to do, the district court granted the motion, sentencing Carter to 36 months rather than the longer terms called for by the guideline range and statutory minimum.

Effective November 1, 2007, the United States Sentencing Commission amended the sentencing guidelines applicable to crack cocaine offenses, including the offense now at issue. See U.S.S.G. app. C, amend. 706, at 226-31 (Supp.2008) (amending U.S.S.G. § 2D1.1(c)); U.S.S.G. app. C, amend. 713, at 253 (Supp.2008) (making Amendment 706 retroactively applicable). It is undisputed that if the terms of this amendment had applied, Carter's base offense level would have been lower, and accordingly, the 87 to 108 month guideline range would have been lower as well.

In April 2008, Carter filed a motion under 18 U.S.C. § 3582(c)(2) for a reduction of sentence based on Amendments 706 and 713. He argued that his 36-month sentence represented a 59 percent reduction from the 87-month low end of the Presentence Report's guideline calculation, that a correct guideline range in light of the crack cocaine amendments would be 70 to 87 months, and therefore that the district court should reduce this portion of his sentence to 59 percent below 70 months. This would result in a sentence of 29 months, rather than 36, on the possession count.

The district court denied the motion on the ground that "the defendant is ineligible as he must serve the mandatory minimum," and denied a motion for reconsideration. This appeal followed.

II. Analysis

As a general matter, we review a decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion. United States v. Cooley, 590 F.3d 293, 294-95 (5th Cir.2009). However, we review the district court's interpretation of the guidelines and sentencing statutes de novo. Id.; United States v. Salazar, 542 F.3d 139, 144 (5th Cir.2008). Here the question is whether the district court correctly concluded that Carter is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, in light of the statutory minimum sentence imposed by 21 U.S.C. § 841(b)(1)(A).² We conclude that under these provisions, Carter is not eligible for the reduction.

Title 18 U.S.C. § 3582(c) prohibits district courts from "modify[ing] a term of imprisonment once it has been imposed,"

595 F.3d 578

but § 3582(c)(2) provides an exception for a sentence based on a sentencing range that the Sentencing Commission subsequently lowers:

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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, 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.

The applicable policy statement is U.S.S.G. § 1B1.10. In Carter's case there is no dispute that the applicable guideline range was 87 to 108 months, and that the crack cocaine amendments lowered that range. The question is whether Carter's sentence was "based on" that range for purposes of the statute.

The Fourth Circuit has considered this question in comparable circumstances and concluded that, when a defendant's crime triggers a statutory minimum sentence exceeding his guideline range, the resulting sentence is "based on" the statutory minimum, not the guideline range. See United States v. Hood, 556 F.3d 226, 233 (4th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 321, 175 L.Ed.2d 212 (2009). Hood considered the sentences of two defendants in remarkably similar circumstances to Carter. Both were sentenced for crack cocaine trafficking based on mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A), but received downward departures for substantial assistance to the government under 18 U.S.C. § 3553(e). Id. at 228. They later requested proportion reductions in their sentences to reflect the impact the crack cocaine amendments would have had on their guideline range calculations. Id. The court concluded that

[T]he defendants' sentences in these appeals were "based on" the statutorily mandated minimum sentence, not "based on a sentencing range" lowered by Amendment 706, and were reduced by the district court under 18 U.S.C. § 3553(e) only for each defendant's substantial assistance to the government, not because of the application of any "guideline range" lowered by Amendment 706.

Id. The court accordingly concluded the defendants were not entitled to a sentence reduction under 18 U.S.C. § 3582(c)(2), and affirmed the denial of the defendants' motions for sentence reduction. Id. at 237-38. Two other circuits have reached essentially the same conclusion under similar circumstances. See United States v. Byers, 561 F.3d 825, 832 (8th Cir.2009); United States v. Williams, 549 F.3d 1337, 1341-42 (11th Cir.2008).

We find the Fourth Circuit's analysis...