U.S.A v. Curry

• Decision Date: 10 February 2010
• Docket Number: No. 08-1732.,08-1732.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Eric CURRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

606 F.3d 323

UNITED STATES of America, Plaintiff-Appellee,v.Eric CURRY, Defendant-Appellant.

No. 08-1732.

United States Court of Appeals, Sixth Circuit.

Feb. 10, 2010.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Ray S, Kent, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Michael L. Schipper, Assistant United States Attorney, Grand Rapids, Michigan, fpr Appellee.

Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; and WISEMAN, District Judge.^*

WISEMAN, District Judge.

Defendant-Appellant Eric James Curry ¹ challenges the district court's denial of his motion to modify or reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He asks that this Court remand his case to the district court with instructions that his motion be granted. Because the district court properly concluded that it had the discretion to consider the motion, and did not abuse that discretion in denying the motion, we affirm.

I.

An initial indictment was issued June 8, 2004, and a superseding indictment issued July 15, 2004, charging Curry with being a felon in possession of three different firearms (Count One); with possession of a certain quantity of crack cocaine (Count Two); and with being a felon in possession of another firearm (Count Three). (Record on Appeal (“ROA”) at 41-43.) Curry entered into a plea agreement with the Government pursuant to which he pleaded guilty to Count Three of the superseding indictment in exchange for dismissal of the other two counts. (ROA at 49-55.)

At sentencing, Curry stipulated that the total offense level indicated in the Presentence Report (“PSR”) was 27, his criminal history category was III, and the applicable guideline range was 87-108 months of imprisonment. (Def.'s Sentencing Mem., ROA at 59.) The PSR recommended a sentence of 102 months of incarceration plus 3 three years of supervised release, but District Judge Gordon J. Quist imposed a sentence of 87 months imprisonment, at the very bottom of the Sentencing Guidelines range, plus 3 years of supervised release. Judge Quist specifically stated on the record that if the Guidelines had been advisory rather than mandatory, “then the sentence would be 60 months.” ( Id. at 15:15-16.) Judgment was entered on November 19, 2004.

Curry promptly filed his Notice of Appeal, and the Sixth Circuit, pursuant to a joint motion to remand, vacated the sentence and remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). At Curry's first resentencing, which took place October 19, 2005, Judge Quist first noted that he was not bound by his statement at the earlier sentencing hearing that he would impose a 60-month prison sentence if it was later determined that the Guidelines were advisory rather than mandatory, and indicated that he had reconsidered that position. He did, however, state that he would “depart somewhat from the guidelines,” by just one year (10/19/2005 Resentencing Hr'g Transcript at 18), and he explained that his decision to do so was based upon his finding that the defendant was “making a good effort to reform himself, and we don't see that very often here.” ( Id. at 20.) He reduced the sentence from 87 to 75 months, plus 3 years of supervised release. The amended judgment was entered October 21, 2005.

Curry appealed that sentence as well, on reasonableness grounds; the Sixth Circuit affirmed. On February 25, 2008, however, Curry filed a pro se Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2), based on the application of Amendments 706 and 711 to the Sentencing Guidelines (the “Crack Amendments”), which were made retroactive as of March 3, 2008. (ROA at 125.) Judge Quist referred this motion to District Judge Robert J. Jonker.

In response to the motion, the Probation Office prepared a Sentence Modification Report (“SMR”); both Curry and the Government submitted briefs. The SMR noted that Curry's original Sentencing Guidelines range was 87 to 108 months based on an offense level of 27 and a criminal history category of III. It indicated an amended range of 70 to 87 months based on a revised offense level of 25 and a criminal history category of III, in recognition of the fact that Curry's original sentence for being a felon in possession was impacted by the drug-quantity guidelines, but did not recommend further reduction of Curry's sentence, as the sentence he was currently serving fell within the modified range.

In his Memorandum in opposition to the SMR, Curry maintained that the SMR, in failing to recommend a sentence reduction, “ignore[d] the plain language of 18 U.S.C. § 3582(c)(2) and the U.S. Sentencing Guideline 1B1.10.” ( Id. at 132.) He raised essentially the same arguments he reiterates in his present appeal, as discussed below, in support of a reduction. The Government argued both that a reduction in sentence would not be appropriate pursuant to U.S.S.G. § 1B1.10(b)(2)(B), and that, even if Curry were eligible for a sentence reduction, the court should exercise its discretion to deny the requested reduction.

No hearing on the motion for resentencing was conducted. On May 19, 2008, Judge Jonker entered a very succinct order declining to reduce Curry's sentence any further, despite the Crack Cocaine amendments and the consequent reduction in Curry's base offense level. ( See ROA at 172 (5/19/2008 Order).) It is from that order that Curry's present appeal arises.

II.

Curry raises two distinct arguments in this appeal: first, that the district court applied an incorrect legal standard in concluding that a further reduction of sentence was not appropriate, insofar as it failed to recognize that it had the discretion to grant the motion; and, alternatively, to the extent the district court recognized it had the discretion to consider the motion, it abused that discretion when it denied the motion without considering all the relevant sentencing factors when it denied the motion. We consider each of these arguments in turn.

A.

Generally speaking, once a court has imposed a sentence, it does not have the authority to change or modify that sentence unless such authority is expressly granted by statute. United States v. Houston, 529 F.3d 743, 748 (6th Cir.2008) (citing United States v. Ross, 245 F.3d 577, 585 (6th Cir.2001)). Pursuant to 18 U.S.C. § 3582, one of the authorized exceptions to the rule against modifying a sentence is “in 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),” in which case a court “may” reduce a prison term “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.” 18 U.S.C. § 3582(c)(2). The statute and the Guidelines policy statements are read together to mean that a previously imposed sentence may be reduced if the guideline range originally applicable to the defendant was lowered as a result of a retroactive amendment listed in § 1B1.10 of the Sentencing Guidelines. U.S.S.G. § 1B1.10(a)(1). Amendment 706 to the Sentencing Guidelines, which was made effective November 1, 2007, reduced the base offense level for most crack offenses. U.S.S.G., App. C, Amend. 706. Amendment 706 is one of the retroactive amendments listed in § 1B1.10. United States v. Poole, 538 F.3d 644, 645 (6th Cir.2008). There is no dispute that Curry's sentencing range for his felon-in-possession charge was computed based upon a cross-reference to the Sentencing Guideline applicable to crack-cocaine offenses.

Regardless of a defendant's eligibility for resentencing, the district court's decision to modify a sentence under § 3582(c)(2) is discretionary and, as such, is reviewed by this Court for abuse of discretion. United States v. Carter, 500 F.3d 486, 490 (6th Cir.2007). “A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 450 (6th Cir.2005) (quoting Tompkin v. Philip Morris USA, Inc., 362 F.3d 882, 891 (6th Cir.2004)). If, however, the district court does not simply decline to use its authority under § 3582(c)(2) but instead concludes that it lacks the authority to reduce a defendant's sentence under the statute, the district court's determination that the defendant is ineligible for a sentence reduction is a question of law that is reviewed de novo. United States v. Johnson, 569 F.3d 619, 623 (6th Cir.2009).

B.

In the present case, Curry first argues that the district court's denial of his motion to modify his sentence should not be reviewed for simple abuse of discretion, because, he contends, the court's decision appears to have been unduly influenced by a misapprehension of the policy statement contained in Sentencing Guideline § 1B1.10(b)(2)(B). In response, the Government argues that the second sentence of § 1B1.10(b)(2)(B) establishes a presumption that a further reduction “would not [have been] appropriate” in this case because Curry had already received a “non-guidelines sentence [determined] pursuant to § 3553(a) and Booker.” (Appellee's Brief at 14.) Thus, the issue presented here is whether and to what extent the second sentence of § 1B1.10(b)(2)(B) may limit a sentencing court's discretion to resentence a defendant.

In that regard, as previously indicated, resentencing is authorized under 18 U.S.C. § 3582(c)(2) only if the defendant was originally sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” If that hurdle is met, and the amendment has been made retroactive, the district court has the discretion to reduce a prison term “after considering the factors set forth in section...