U.S. v. Dunphy

• Decision Date: 05 January 2009
• Docket Number: No. 08-6919.,08-6919.
• Citation: 551 F.3d 247
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gena Marie DUNPHY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

551 F.3d 247

UNITED STATES of America, Plaintiff-Appellee, v. Gena Marie DUNPHY, Defendant-Appellant.

No. 08-6919.

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2008.

Decided: January 5, 2009.

ARGUED:

Brian Joseph Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. William C. Brown, United States Department of Justice, Washington, D.C., for Appellee.

ON BRIEF:

Sharon L. Potter, United States Attorney, Wheeling, West Virginia; Paul T. Camilletti, Assistant United States Attorney, Office of the United States Attorney, Martinsburg, West Virginia, for Appellee.

Before WILKINSON and DUNCAN, Circuit Judges, and Richard D. BENNETT, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge WILKINSON and Judge BENNETT concurred.

OPINION

DUNCAN, Circuit Judge:

In 2003, Gena Dunphy pleaded guilty to aiding and abetting the possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). She was sentenced to 135 months imprisonment, the minimum sentence under the Sentencing Guidelines in effect at that time. In 2008, Dunphy moved the district court for a reduction of her sentence based on an amendment to the guidelines that effectively lowered the offense level with respect to offenses involving crack cocaine.

The district court reduced Dunphy's sentence to 108 months, the minimum available to her under the amended guidelines, but declined to grant a further reduction below the 108-month minimum on the ground that it lacked authority to do so. Dunphy timely appealed. Because the district court properly interpreted the limits of its authority, we affirm.

I.

Dunphy pleaded guilty in May of 2003 to a single count of aiding and abetting the possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). At her sentencing hearing, the district court found, as stipulated by the parties, that she was responsible for over 150 grams of crack. Under the guidelines applicable at the time, that drug quantity produced a base offense level of 34. See U.S.S.G. § 2D1.1(c)(3) (2002). Adding two levels for possession of a firearm, and subtracting three levels for acceptance of responsibility, the district court calculated Dunphy's total offense level at 33. With her category I criminal history, Dunphy's sentencing range was 135-168 months. The district court sentenced Dunphy at the bottom of that range to a term of 135 months of imprisonment. Dunphy did not appeal.

Several years later, the Sentencing Commission issued Amendment 706, which altered the drug quantity table set forth in U.S.S.G. § 2D1.1 to effectively lower the base offense level for offenses involving crack cocaine by two levels.¹ The Commission added Amendment 706 to the list in the U.S.S.G. § 1B1.10(c) policy statement that designates those guidelines amendments which may be applied retroactively.²

Based on these amendments, Dunphy moved in the district court for a reduction of her sentence pursuant to 18 U.S.C. § 3582(c)(2), which provides a limited exception to the rule barring a court from modifying a sentence once it has been imposed. Applying the amended drug quantity table to the quantity of crack attributable to Dunphy in 2003, Dunphy's base offense level was reduced from 34 to 32. Applying the two-level firearm enhancement and three-level subtraction for acceptance of responsibility, Dunphy's total offense level became 31. This offense level yields an amended guideline range of 108-135 months, reduced from the 135-168 months applicable at her initial sentencing. The district court resentenced Dunphy to 108 months, the bottom of the amended guideline range.

Dunphy nevertheless requested that the district court grant a further reduction to a sentence below 108 months. She acknowledged that with respect to defendants who were originally sentenced within the guideline range, as she had been, the language of U.S.S.G. § 1B1.10(b)(2)(A) bars the district court from reducing the defendant's sentence to "a term that is less than the minimum of the amended guideline range." U.S.S.G. § 1B1.10(b)(2)(A); see also App. Note 3. She argued, however, that the § 1B1.10(b) mandatory restriction on the extent of the reduction was invalid for two reasons: (1) because, as a constitutional matter, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), held that the guidelines were advisory rather than mandatory; and (2) because, as a matter of statutory construction, § 1B1.10(b) was inconsistent with the requirement that the sentencing court apply the § 3553(a) factors. See J.A. 73-76.

The district court disagreed. It denied Dunphy's motion insofar as she sought a reduction below the minimum amended guideline range on the ground that it lacked such authority under § 3582(c)(2). J.A. 84-87. The court observed that § 3582(c) proscribes the modification of a term of imprisonment once it has been imposed, except under narrow circumstances provided in the statute, and permits a reduction only if "consistent with applicable policy statements issued by the Sentencing Commission." J.A. 83-85 (quoting § 3582(c)(2)). The court further pointed to the directive in 28 U.S.C. § 994(u) that if the Commission reduces a sentencing range, it must determine the circumstances and the extent of the reduction. J.A. 84. Citing authority from other circuits as well, the district court concluded that Booker did not authorize courts to deviate below the level authorized by the Sentencing Guidelines and policy statements in the guidelines. J.A. 83-86.

This appeal followed.

II.

The district court's determination that it lacked authority to reduce Dunphy's sentence to a term below the amended guideline range is a question of law that we review de novo. United States v. Legree, 205 F.3d 724, 727 (4th Cir.2000).

We begin our analysis with a consideration of the statutes and guidelines involved. The congressional directive in 28 U.S.C. § 994(u) provides that "[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment may be reduced." § 994(u). As the Supreme Court has explained with respect to this provision, "Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect." Braxton v. United States, 500 U.S. 344, 348, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991) (citing § 994(u)) (emphasis omitted).

In 18 U.S.C. § 3582(c), Congress mandated that courts "may not modify a term of imprisonment once it has been imposed." § 3582(c). However, § 3582(c) allows for specified exceptions to this general rule. The exception relevant here authorizes a district court to reduce a defendant's term of imprisonment when the Commission has subsequently lowered his or her sentencing range and made that reduction retroactive. However, such sentence-reduction is authorized only "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." § 3582(c)(2).

Under the express statutory language of § 994(u) and § 3582(c)(2), the Commission's policy statements implementing the statute's authorization of retroactive sentence reductions are binding, just as the statutory restrictions on reductions below a mandatory minimum are binding. See United States v. Walsh, 26 F.3d 75, 77 (8th Cir.1994) (holding that "Congress has made the policy statements set forth in § 1B1.10 the applicable law for determining whether a district court has the authority to reduce a sentence in this situation."). The guideline's policy statement in U.S.S.G. § 1B1.10, identifying the amendments which may be applied retroactively, further emphasizes the limited nature of the relief available under § 3582(c)(2). Subsection 1B1.10(a) provides, in relevant part:

(1) In General.—In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment ..., the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2)....

(3) Limitation.—[P]roceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.

U.S.S.G. § 1B1.10(a) (as amended by Amendment 712 effective March 3, 2008) (emphasis added).

Subsection 1B1.10(b)(l), in turn, specifies the mechanism for calculating the amended guideline range:

[T]he court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.

U.S.S.G. § 1B1.10(b)(1) (as amended by Amendment 712 effective March 3, 2008) (emphases added).

Subsection 1B1.10(b)(2)(A), which applies when a defendant (like Dunphy) received a within-guidelines sentence at her original sentencing, limits the extent of the reduction to the minimum of the amended guideline range. It states in pertinent part that "the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range." U.S.S.G. § 1B1.10(b)(2)(A). The guidelines commentary reiterates this explicit limitation on the extent of the reduction, stating:

Under subsection (b)(2), the amended guideline range ......