U.S. v. Cook

• Decision Date: 12 February 2010
• Docket Number: No. 09-3008.,09-3008.
• Parties: UNITED STATES of America, Appellee v. Derrick COOK, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

594 F.3d 883

UNITED STATES of America, Appellee v. Derrick COOK, Appellant.

No. 09-3008.

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 2009.

Decided February 12, 2010.

Appeal from the United States District Court for the District of Columbia (No. 1:93-cr-00365-RCL-1).

Mary M. Petras, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Michael T. Ambrosino, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roy W. McLeese III, John P. Mannarino, and Mary Ann Snow, Assistant U.S. Attorneys.

Before: ROGERS and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

This is an appeal from the denial of a motion for the reduction of sentence under 18 U.S.C. § 3582(c)(2) in view of amendments to the U.S. Sentencing Guidelines ("U.S.S.G.") reducing the base level offense for offenses involving crack cocaine. We join the other circuits in holding that section 3582(c)(2), which refers to sentences "based on a guideline range subsequently lowered by the Sentencing Commission," applies only to a sentence that is determined by a guideline range. Because Cook was sentenced to the mandatory minimum in 21 U.S.C. § 841(b)(1)(A)(iii), his sentence was not based on a guideline range, and he is ineligible for relief under section 3582(c)(2). Accordingly, we affirm.

I.

On October 7, 1993, Derrick Cook and Dwayne Short were indicted on one count of possession with intent to distribute fifty grams or more of a mixture and substance containing a detectable amount of cocaine base (also known as crack), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) and 18 U.S.C. § 2. The government filed an information regarding Cook's prior drug conviction, which made him eligible for enhanced mandatory penalties under 21 U.S.C. § 841(b)(1)(A)(iii). A jury convicted Cook of possession with intent to distribute a detectable amount of cocaine base but did not make any findings as to the quantity of drugs for which he was to be held accountable. The district court found as a matter of fact, by a preponderance of the evidence, that Cook had possessed 111 grams of cocaine base, making his guideline range under the 1994 Sentencing Guidelines 135 to 168 months. The district court noted, however, that Congress had "superimposed mandatory minimums on top of the Guidelines." Sentencing Tr. 20, lines 24-25 (Jul. 5, 1994). Pursuant to U.S.S.G. § 5G1.1(b), which required imposition of the mandatory minimum sentence if it was greater than the guideline range, the district court sentenced Cook to the mandatory minimum sentence for repeat offenders of 240 months' imprisonment in section 841(b)(1)(A)(iii), and to a mandatory term of ten years' supervised release, see id.

Cook appealed his conviction, and this court affirmed. United States v. Cook, 70 F.3d 638 (D.C.Cir.1985) (unpub. per curiam). In 1997, Cook moved to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255, on the ground of ineffective assistance of trial counsel, which motion the district court denied, United States v. Cook, 130 F.Supp.2d 43 (D.D.C. 2000); this court affirmed, United States v. Cook, 22 Fed.Appx. 3 (D.C.Cir.2001). In 2003, Cook moved to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 645 to the Sentencing Guidelines, seeking credit for time served concurrently with the sentence imposed upon revocation of his probation for this conviction. The district court denied the motion, and Cook did not appeal.

In August 2008, Cook moved to reduce his sentence under section 3582(c)(2) based on the Sentencing Commission's adoption of Amendments 706, 711 and 713, which together retroactively lowered the base level offense under U.S.S.G. § 2D1.1 by two points for offenses involving crack cocaine, see U.S.S.G. app. C, amendments 706 and 711 (Nov. 1, 2007); see id. amendment 713 (Mar. 3, 2008). He argued that in 1994 the district court had sentenced him to 240 months' imprisonment on the mistaken belief that he was subject to a statutory mandatory minimum sentence even though the jury had not found him guilty of possessing with intent to distribute more than 50 grams of crack cocaine. Applying the amendments, his guideline range would be 108-135 months. His projected release date was April 27, 2013. As of March 3, 2008, when the amendments took effect, he would have served more than fifteen years (180 months), well above the amended sentencing range. Cook therefore requested that his sentence be reduced to time served.

The district court denied the motion, ruling that it lacked authority to grant the relief Cook sought. Cook appeals. This court has jurisdiction to review the denial of a section 3852 motion under 28 U.S.C. § 1291, see United States v. Paulk, 569 F.3d 1094, 1095 (9th Cir.2009); United States v. Mateo, 560 F.3d 152, 154 n.1 (3d Cir.2009); and under 18 U.S.C. § 3742(a)(1), see United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000).

II.

Section 3582(c)(2) provides:

[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) [18 USCS § 3553(a)] to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). Because the proper interpretation of a statute is a question of law, our review is de novo. United States v. Goodwin, 317 F.3d 293, 297 (D.C.Cir.2003). We begin with the text of the statute, Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999), giving words their ordinary and natural meaning, Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), while recognizing that plain or not, the meaning of a word depends on its context, see Holloway v. United States, 526 U.S. 1, 7, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (citing Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994)).

To be eligible for relief pursuant to section 3582(c)(2), a defendant's sentence must be "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." The circuit courts have held that where a defendant is sentenced to a statutory mandatory minimum sentence, relief under section 3582(c)(2) is unavailable because the sentence is no longer "based on" a sentencing range. As the Seventh Circuit explained in United States v. Poole, 550 F.3d 676, 678 (7th Cir.2008), "Congress has authorized district courts to modify sentences in very limited circumstances," and such relief is unavailable where a defendant was sentenced to a mandatory minimum sentence because the "sentence was `based on' a statutory minimum, not a sentencing range that Amendment 706 lowered." To the argument that the defendant's sentencing range had been subsequently lowered because the district court had initially calculated a guideline range that the Amendment to the Sentencing Guidelines altered, the court responded, "this view ignores the fact that the district court's initial guidelines calculation became academic once [the defendant's] prior drug felony was factored in, triggering the statutory minimum sentence." Id. at 679.

The other circuits to address the question are in agreement with this interpretation of the phrase "based on." In United States v. Williams, 551 F.3d 182, 185 (2d Cir.2009), the Second Circuit stated that "[o]nce the mandatory minimum applied, [the defendant's] sentence was no longer `based on a sentencing range that has subsequently been lowered by the Sentencing Commission.'" (quoting § 3582(c)(2)). In United States v. Hood, 556 F.3d 226, 233 (4th Cir.2009), the Fourth Circuit agreed that the defendant's 240 months' sentence was based on the Sentencing Guidelines pursuant to the mandatory minimum sentence, rather than the sentencing range derived from U.S.S.G. § 2D1.1 for individual crack cocaine offenses. The Sixth Circuit in United States v. Johnson, 564 F.3d 419, 423 (6th Cir.2009), likewise stated the defendant "was not in fact sentenced based on a Guidelines range that was subsequently reduced" because "his sentence was based on the mandatory minimum imposed by 21 U.S.C. § 841(b)(1)(A), which remained unchanged by Guidelines Amendment 706." So too in Paulk, 569 F.3d at 1095, the Ninth Circuit concluded the defendant was "not entitled to a reduction because his sentence was not `based on a sentencing range that has subsequently been lowered by the Sentencing Commission,' 18 U.S.C. § 3582(c)(2), but rather was based on the statutory mandatory minimum under 21 U.S.C. § 841." To the same effect are decisions in the First, Fifth, Eighth, Tenth, and Eleventh Circuits, which have denied relief under section 3582(c)(2) to defendants sentenced to statutory mandatory minimum sentences without referencing the "based on" phrase. See United States v. Ganun, 547 F.3d 46, 47 (1st Cir.2008); United States v. Jones, 523 F.3d 881, 882 (8th Cir.2008); United States v. Smartt, 129 F.3d 539, 542 (10th Cir.1997); United States v. Eggersdorf, 126 F.3d 1318, 1320 (11th Cir.1997); United States v. Pardue, 36 F.3d 429, 431 (5th Cir.1994).

Cook attempts to avoid this precedent and meet section 3582(c)(2)'s threshold "based on" requirement in two ways: first, by pointing to the two-step sentencing procedure under the Sentencing Guidelines, and second, by challenging the lawfulness of the imposition of the mandatory minimum sentence. Neither attempt succeeds.

First, Cook contends that his sentence...