U.S. v. Doe

• Decision Date: 30 April 2009
• Docket Number: No. 08-4028.,No. 08-3968.,08-3968.,08-4028.
• Citation: 564 F.3d 305
• Parties: UNITED STATES of America v. John DOE, Appellant in 08-3968. United States of America v. Jane Doe, Appellant in 08-4028.
• Court: U.S. Court of Appeals — Third Circuit

564 F.3d 305

UNITED STATES of America v. John DOE, Appellant in 08-3968.

United States of America v. Jane Doe, Appellant in 08-4028.

No. 08-3968.

No. 08-4028.

United States Court of Appeals, Third Circuit.

Argued January 7, 2009.

Filed April 30, 2009.

Maureen Kearney Rowley, David L. McColgin, Sarah S. Gannett (Argued), Federal Community Defender Office, for the Eastern District of Pennsylvania, Philadelphia, PA, for Appellants.

Laurie Magid, Robert A. Zauzmer, Bernadette A. McKeon (Argued), Joseph Whitehead, Jr., Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before: FUENTES, FISHER and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The Appellants, John and Jane Doe,¹ appeal the Eastern District of Pennsylvania's denial of their 18 U.S.C. § 3582(c)(2) motions for reduction of sentence. On February 1, 2007, both Appellants pled guilty to conspiracy to distribute, and distribution of, crack cocaine. The Appellants were granted significant substantial-assistance departures below both their statutorily required minimums and below their pre-amendment Guideline ranges. After the United States Sentencing Commission passed Amendment 706, which lowered the U.S.S.G. § 2D1.1 base offense levels for most quantities of crack cocaine by two levels, the Appellants moved the District Court to further reduce their sentences. The District Court denied their motions. On appeal, the Appellants argue that the District Court erred in denying their motions because: 1) they were sentenced to a term of imprisonment that was, at least in part, based on a sentencing range that has subsequently been lowered; 2) the applicable policy statement, found at U.S.S.G. § 1B1.10, is in conflict with the plain text of § 3582(c)(2); 3) the District Court misconstrued U.S.S.G. § 1B1.10; 4) U.S.S.G. § 1B1.10 is merely advisory after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and 5) the District Court failed to weigh the equities and consider the rule of lenity in its decision. We will affirm.²

I.

John and Jane Doe each pled guilty to one count of conspiracy to distribute crack cocaine (21 U.S.C. § 846) and one count of distribution of crack cocaine (21 U.S.C. § 841(a)(1)), and entered into cooperation plea agreements with the government. John Doe's U.S.S.G. § 2D1.1 base offense level for these convictions was 34. He received a two-level increase for his role in the offense, and a three-level reduction for acceptance of responsibility, resulting in a total adjusted offense level of 33. His criminal history was category II. Accordingly this produced a Guidelines sentencing range of 151-188 months of imprisonment. John Doe, however, was also subject to a statutory mandatory minimum sentence of life in prison because of prior drug convictions. As the mandatory minimum sentence exceeded the Guidelines range, the mandatory minimum became the Guidelines sentence, pursuant to U.S.S.G. § 5G1.1.³

This mandatory minimum Guidelines sentence was not applied to John Doe, however, because of substantial assistance he provided to the government. The government moved for a downward departure from the mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e) and from the Guidelines range pursuant to U.S.S.G. § 5K1.1. The District Court ultimately sentenced John Doe, on August 16, 2007, to 84 months imprisonment, a sentence well below both the mandatory minimum Guidelines sentence and the otherwise applicable Guidelines range.

Jane Doe's U.S.S.G. § 2D1.1 base offense level for these convictions was 34. She received a three-level reduction for acceptance of responsibility, resulting in a total adjusted offense level of 31. Her criminal history was category II. Accordingly, this produced a Guidelines sentencing range of 121-151 months of imprisonment. Jane Doe, however, was also subject to a statutory mandatory minimum sentence of twenty years, due to a prior drug conviction. As the mandatory minimum sentence exceeded the Guidelines range, the mandatory minimum became the Guidelines sentence, pursuant to U.S.S.G. § 5G1.1.

This mandatory minimum Guidelines sentence was not applied to Jane Doe, however, because, like John Doe, she yielded substantial assistance to the government. The government moved for a downward departure from the mandatory minimum sentence pursuant to § 3553(e) and from the Guidelines range pursuant to U.S.S.G. § 5K1.1. The District Court ultimately sentenced Jane Doe, on May 17, 2007, to 41 months imprisonment, a sentence well below both the mandatory minimum Guidelines sentence and the otherwise applicable Guidelines range.

On November 1, 2007—subsequent to the Appellants' sentencings—the United States Sentencing Commission passed Amendment 706, which changed U.S.S.G. § 2D1.1 by lowering the base offense levels for most quantities of crack cocaine by two levels. See U.S.S.G. Supp. to App. C. amend. 706. On December 11, 2007, the Sentencing Commission made Amendment 706 retroactive by including it in the list of retroactive amendments in § 1B1.10(c) of the Guidelines. U.S.S.G.App. C. amend. 713.

Subsequently, both Appellants filed motions for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) provides that, 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, the court may reduce the term of imprisonment if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. The District Court applied § 3582(c)(2) and found that a sentence reduction was not consistent with the applicable policy statements issued by the Sentencing Commission. The District Court therefore denied the Appellants' motions on September 15, 2008.

II.

In 18 U.S.C. § 3582(c), Congress mandated that courts "may not modify a term of imprisonment once it has been imposed." Congress did provide exceptions to this general rule, one of which, § 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) 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).

As the District Court correctly identified, a defendant is eligible for a sentence reduction under § 3582(c)(2) only when two elements are satisfied: First, the defendant must have been "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission;" and second, the sentence reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." If a defendant fails to satisfy both requirements, a district court lacks jurisdiction to consider a sentence reduction. We agree with the District Court that the Appellants fail to satisfy the second requirement, and we decide this case solely on that ground.

The Sentencing Commission's policy statements regarding § 3582(c)(2) are set forth in U.S.S.G. § 1B1.10. See U.S.S.G. § 1B1.10 cmt. background. U.S.S.G. § 1B1.10(a)(2) provides:

A reduction in the defendant's term of imprisonment is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if—

(A) None of the amendments listed in subsection (c) is applicable to the defendant; or

(B) An amendment listed in subsection (c) does not have the effect of lowering the defendant's applicable guideline range.

U.S.S.G. § 1B1.10(a)(2).

Amendment 706 is listed in subsection (c). Although Amendment 706 would have lowered John Doe's initial sentencing range calculated under U.S.S.G. § 5A (the sentencing table) from 151-188 months to 121-151 months, and Jane Doe's initial sentencing range from 121-152 months to 97-121 months, the amendment did not lower either of the Appellants' mandatory minimum sentences. The District Court correctly identified the flashpoint of controversy:

Thus, the critical issue is whether the term "applicable guideline range" in § 1B1.10(a)(2)(B) refers to [the Appellants'] initial sentencing range ... calculated under § 5A or [the Appellants'] guideline sentence of [life imprisonment or twenty years, respectively] calculated under § 5G1.1(b).

As we explain below, the term "applicable guideline range" in § 1B1.10(a)(3)(B) refers to the Appellants' Guideline sentences as set by the statutory mandatory minimum. As the Appellants' mandatory minimum sentences were not affected by Amendment 706, the Appellants are ineligible for a sentence reduction.

III.

The Appellants advance six arguments on appeal, which we consider seriatim. First, the Appellants argue that their downward departures for substantial assistance to the government were, at least in part, "based on" the now-amended crack cocaine guidelines.

As discussed above, the District Court held, and we agree, that deciding this case solely on the second element of § 3582(c)(2) is appropriate and we therefore decline to address the Appellants' "based on" argument.

IV.

Second, the Appellants argue that by requiring an amendment to "have the effect of lowering a defendant's applicable guideline range," the policy statement of U.S.S.G. § 1B1.10(a)(2) implicitly redefines the § 3582(c)(2) term "based on" and that the District Court's interpretation of § 1B1.10(a)(2) assumes that a sentence may be "based on" only one thing, in this case the mandatory minimum. The Appellants contend that this narrow interpretation of the policy statement conflicts with the broader terms and congressional intent of § 3582(c)(2) and...