U.S. v. Evans, 08-41259.

• Decision Date: 05 November 2009
• Docket Number: No. 08-41259.,08-41259.
• Citation: 587 F.3d 667
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark Anthony EVANS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

587 F.3d 667

UNITED STATES of America, Plaintiff-Appellee, v. Mark Anthony EVANS, Defendant-Appellant.

No. 08-41259.

United States Court of Appeals, Fifth Circuit.

November 5, 2009.

James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

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

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

JERRY E. SMITH, Circuit Judge:

Mark Evans moved under 18 U.S.C. § 3582(c)(2) to reduce his sentence based on the retroactive amendment of the crack cocaine offense levels. The district court granted the motion but imposed a sentence at the high end of the new sentencing range. On appeal, Evans argues (1) that the mandatory provisions of United States Sentencing Guidelines ("U.S.S.G.") section 1B1.10 cabined the district court's sentencing discretion in violation of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and the separation of powers doctrine and (2) that the modified sentence was procedurally unsound and substantively unreasonable. We affirm.

I.

Evans is no stranger to this court. In 2000, a jury found him guilty of possession with intent to distribute crack cocaine ("count one"), possession of a firearm during and in relation to a drug trafficking crime ("count two"), and being a felon in possession of a firearm ("count three"). The district court sentenced him to 235 months' imprisonment. He appealed and, determining that the indictment as to count two was defective, we affirmed in part and vacated and remanded in part for resentencing.

On remand, the district court sentenced Evans to 210 months on count one and 120 months on count three, the terms to run concurrently, and dismissed count two. Evans appealed; we affirmed. Evans sought 28 U.S.C. § 2255 relief; we denied a certificate of appealability.

After the crack cocaine guideline was amended,¹ Evans filed a § 3582(c)(2)² motion for reduction of sentence. Based on the two-level reduction pursuant to the crack cocaine amendment, on his post-conviction conduct, and on an alleged error in calculating his original criminal history score, Evans urged the district court to sentence him to 140 months or less, which he argued the court could do in light of Booker. Without a hearing, the court implicitly rejected Evans's arguments for a below-guideline sentence and summarily reduced the 210-month sentence as to count one to 175 months.

II.

A.

Evans contends that to the extent the district court felt constrained in its resentencing decision by the mandatory language in U.S.S.G. § 1B1.10, it erred. Specifically, Evans argues that Booker applies to § 3582(c)(2) proceedings. And because the provisions of U.S.S.G. § 1B1.10 are mandatory,³ Evans adds, they violate Booker. We review de novo the district court's interpretation or application of the guidelines. See, e.g., United States v. Conner, 537 F.3d 480, 489 (5th Cir.2008).

Evans's argument is foreclosed by United States v. Doublin, 572 F.3d 235, 238 (2009) (per curiam), cert. denied, ___ U.S. ___, 130 S.Ct. 517, ___ L.Ed.2d ___, 2009 WL 3073270, 2009 U.S. LEXIS 7830 (U.S. Nov, 2, 2009), in which we joined "the nearly unanimous position of our sister circuits[⁴] in holding [that] Booker does not alter the mandatory character of Guideline § 1B1.10's limitations on sentence reductions." Thus, a district court cannot reduce a sentence below the minimum provided in the amended guideline range. Id.

B.

Evans challenges the mandatory provisions of § 1B1.10 on separation-of-powers grounds. He claims that, notwithstanding the mandatory limitations in § 1B1.10, Congress never intended § 3582(c)(2) to limit a federal court's jurisdiction by delegating control to the Sentencing Commission. Indeed, he avers, a plain reading of § 3582(c)(2) and its legislative history confirms that the Commission's policy statements were intended only to guide the district court's discretion. Interpreting the statute otherwise, Evans argues, violates the separation-of-powers doctrine, because it gives Article III power to the Commission or, at the very least, because the Sentencing Reform Act provides no guidance as to how the Commission should regulate Article III jurisdiction.

Although Evans did not raise the separation-of-powers issue in the brief supporting his § 3582(c)(2) motion, he contends that the plain error standard of review does not apply, because he had no opportunity to object to the district court's summary ruling. For support, he cites United States v. Warden, 291 F.3d 363, 365 n. 1 (5th Cir.2002), in which we held the plain error standard inapplicable because the defendant did not have an "opportunity to object to or comment on the special [sentencing] conditions as imposed in the written order. . . ."

Evans's situation, however, differs markedly from Warden's. The challenge in Warden was to "new conditions [including responsibility to pay for costs of drug treatment and counseling, sex offender counseling, and anger management counseling] . . . not discussed at the sentencing hearing" — conditions that, because they were special, the defendant could not have been expected to anticipate. Id. at 365. In contrast, Evans challenges the constitutionality of the very mandatory guidelines range that governs his § 3582(c)(2) resentencing.

The mandatory nature of § 1B1.10 was an issue that Evans could have anticipated. Indeed, he did anticipate it, in that he was careful to point out to the district court his Booker argument. The point is that, unlike Warden, Evans had an opportunity to comment on the issue he is trying to assert for the first time on appeal. Evans could have mentioned separation of powers in his § 3582(c)(2) motion brief but, for whatever reason, he chose not to. And because he did not present it to the district court, we review it for plain error. See United States v. Wright, 86 F.3d 64, 65 (5th Cir.1996).

Plain error arises where "(1) there was an error; (2) the error was clear and obvious; and (3) the error affected the defendant's substantial rights." United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005). Even if such an error is found, the court does not exercise its discretion to correct it unless it "seriously affects the fairness, integrity, or public reputation of judicial proceedings," id. at 359, and "result[s] in a miscarriage of justice," United States v. Surasky, 974 F.2d 19, 21 (5th Cir.1992).

As Evans admits, his separation-of-powers argument is novel. No Fifth Circuit precedent supports it. "We ordinarily do not find plain error when we `have not previously addressed' an issue." United States v. Lomas, 304 Fed.Appx. 300, 301 (5th Cir.2008) (quoting United States v. Vega, 332 F.3d 849, 852 n. 3 (5th Cir. 2003)). Even where the argument requires only extending authoritative precedent, "the failure of the district court to do so cannot be plain error." Id. (citing United States v. Hull, 160 F.3d 265, 272 (5th Cir.1998)).

But here there was not even authoritative precedent for the court to extend. Given the lack of precedent suggesting a separation-of-powers problem with § 3582(c)(2) and its relationship with the mandatory provisions in § 1B1.10, the alleged error was not "obvious," "clear," or "readily apparent" such that the court was "derelict in countenancing [it] . . . even absent the defendant's timely assistance in detecting [it]." United States v. Miller, 406 F.3d 323, 330 (5th Cir.2005) (citations omitted).

III.

Evans argues that Booker reasonableness review should apply to § 3582(c)(2) proceedings; he attacks his resentencing as procedurally unsound and substantively unreasonable. In doing so, he assumes incorrectly that the reasonableness standard of review applies to § 3582(c)(2) proceedings.

In Doublin, 572 F.3d at 238, we held Booker inapplicable to § 3582(c)(2) sentencing reductions, because those proceedings do not constitute full resentencings. We did not expressly address whether the reasonableness standard of review derived from Booker is likewise inapplicable to § 3582(c)(2) proceedings. Another court, however, has had occasion to state that logical connection — albeit in an unpublished opinion.⁵ We, likewise, now decide what was implicit in Doublin, that is, the distinction between full sentencings and sentence modifications that compelled our holding in Doublin: The Booker reasonableness standard does not apply to § 3582(c)(2) proceedings. The bifurcated procedural-soundness, substantive-reasonableness review of sentencing decisions derived from Booker and its progeny, United States v. Rowan, 530 F.3d 379, 381 (5th Cir.2008), is therefore inapplicable in the § 3582(c)(2) review context.

Instead, we review the decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion, United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir.1995), its interpretation of the guidelines de novo, and its findings of fact for clear error, United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). Having discerned the correct standard of review, we now sever, as well as possible, Evans's particular claims from his reliance on inapplicable Booker-Rita⁶-Gall⁷ language.

A.

Evans takes issue with the district court's summary grant of his § 3582(c)(2) motion without providing reasons for choosing the particular revised sentence. He contends that, under § 3553(c)(1), the court is required to give reasons for the sentence. Evans again confuses full sentencings with sentence modifications.

The provision in § 3553(c) on which Evans relies states in pertinent part that "[t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence (1) is . . . within [a] range . . . [that] exceeds 24 months, the reason for imposing a sentence at a...