U.S. v. Fanfan, 08-2062.

• Decision Date: 04 March 2009
• Docket Number: No. 08-2062.,08-2062.
• Citation: 558 F.3d 105
• Parties: UNITED STATES of America, Appellee, v. Ducan FANFAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

558 F.3d 105

UNITED STATES of America, Appellee, v. Ducan FANFAN, Defendant, Appellant.

No. 08-2062.

United States Court of Appeals, First Circuit.

Heard February 2, 2009.

Decided March 4, 2009.

J. Hilary Billings, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA, and BOUDIN, Circuit Judges.

TORRUELLA, Circuit Judge.

After much litigation, Appellant Ducan Fanfan's sentence for a drug offense involving crack cocaine became final. United States v. Fanfan, 468 F.3d 7 (1st Cir. 2006), cert. denied, 549 U.S. 1300, 127 S.Ct. 1863, 167 L.Ed.2d 353 (2007). On July 9, 2008, Fanfan sought an adjusted sentence under 18 U.S.C. § 3582(c)(2) in light of a subsequent amendment to the guidelines that effectively reduced the guideline range for certain crack cocaine offenders. U.S.S.G. Amendment 706 (effective Nov. 1, 2007). The district court granted this request and imposed a sentence within the new guideline range. On the same day that the district court allowed his request, Fanfan filed a motion for reconsideration, asking the court to instead impose a variant sentence below the new guideline range based on the district court's Kimbrough discretion.¹ The district court refused and, in citing another district court decision, United States v. Julien, 550 F.Supp.2d 138 (D.Me.2008), indicated that it did not believe it had the legal authority to impose such a variant sentence in the § 3582(c)(2) context. Fanfan appeals this conclusion. After careful consideration, we affirm.

I. Discussion

The government contends that two independent reasons make abuse of discretion our standard of review. First, Fanfan challenges a decision made in the context of § 3582(c), to which abuse of discretion review applies. United States v. Rodríguez-Peña, 470 F.3d 431, 432 (1st Cir. 2006) (per curiam). Second, Fanfan challenges a denial of a motion for reconsideration, which we generally review for abuse of discretion. See Global Naps, Inc. v. Verizon New Eng., Inc., 489 F.3d 13, 25 (1st Cir.2007). But since Fanfan charges the district court with misconstruing its legal authority, our review is effectively de novo. See United States v. Caraballo, 552 F.3d 6, 8-9 (1st Cir.2008) (stating, in the § 3582(c)(2) context, that "[a] material error of law is perforce an abuse of discretion" and that since appellant challenged the meaning of § 3582(c)(2), he presented "purely a question of statutory interpretation," in which "the court's answer ... engenders de novo review"); see also United States v. Melvin, 556 F.3d 1190, 1191, 2009 WL 236053, at *2 (11th Cir. 2009) ("We review de novo the district court's determination of the scope of its authority to reduce a sentence under 18 U.S.C. § 3582.").

We also choose not to limit our review in this case based on the fact that Fanfan's challenge arose on a motion for reconsideration. It is true that Fanfan could have raised his Kimbrough argument in his initial motion. And we have said, "[t]he presentation of a previously unpled and undeveloped argument in a motion for reconsideration neither cures the original omission nor preserves the argument as a matter of right for appellate review." Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir.2006). But, in this case, we chose to bypass the government's waiver arguments because Fanfan presents a question of law likely to recur and because the district court did confront and resolve the issue presented. See United States v. Giggey, 551 F.3d 27, 37 (1st Cir.2008) (en banc) (bypassing waiver due, in part, to need for clarity).

Turning to the merits, we must determine what authority the following provision confers on district courts in these circumstances:

(c) The court may not modify a term of imprisonment once it has been imposed except that—

...

(2) 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), 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). This statute acts as a limited exception to the final judgment rule by conferring power on the district court to adjust a final sentence when a particular trigger is met. See Caraballo, 552 F.3d at 9. Here, Fanfan was able to meet this trigger because his guideline range was lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). The district court thus had authority to adjust the sentence pursuant to this section.

The question presented in this case is the extent of that power. Fanfan argues that district courts should engage in resentencing, considering all applicable factors, including their Kimbrough discretion, to reach a new reasonable sentence. Fanfan relies on the portion of the section which instructs district court judges to provide adjustments "after considering the factors set forth in section 3553(a) to the extent that they are applicable."

We disagree with Fanfan's position, though we do not agree with all of the government's arguments against that position. First, the government contends that Fanfan already received his reduction based on the guideline amendment, and that he now seeks a reduction based on a Supreme Court decision. Thus, the government argues, Fanfan's request for Kimbrough relief at a § 3582(c)(2) proceeding must fail because of our precedent holding that "§ 3582(c) only allows a reduction where `the Sentencing Commission, not the Supreme Court, has lowered the [sentencing] range.'" Rodríguez-Peña, 470 F.3d at 433 (quoting United States v. Price, 438 F.3d 1005, 1007 (10th Cir.2006)). But, here, Fanfan does not contend that Kimbrough triggered the application of § 3582(c)(2). Rather, it is clear that the Sentencing Commission's amendment to the crack cocaine guidelines triggered the statute. Fanfan simply argues that Kimbrough should be applicable to the calculation of a new sentence, once the statute is triggered. Neither Rodríguez-Peña, nor any of our other decisions, have resolved the precise question regarding the scope of the district court's authority to impose a sentence below the new guideline range under § 3582(c)(2). See Caraballo, 552 F.3d at 12 n. 4 (taking "no view on the question of whether a defendant who satisfies the threshold requirement of section 3582(c)(2) is entitled to a full resentencing").

Second, the government suggests that allowing full resentencing would be inconsistent with our holding that Booker² is not applied retroactively on collateral review. See Cirilo-Muñoz v. United States, 404 F.3d 527, 533 (1st Cir.2005).³ But, Fanfan does not seek retroactive application of Booker or Kimbrough to a final judgment. Rather, he seeks the application of these precedents to adjustments made pursuant to § 3582(c)(2). This question requires us to construe the terms of § 3582(c)(2), and is analytically distinct from the question of retroactivity, which asks whether a decision announced "`watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.'" Id. at 532 (quoting Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)). To be sure, allowing Booker to be applied to a defendant whose final sentence is adjusted based on a qualifying guideline amendment might create some tension with our retroactivity jurisprudence by allowing only certain defendants to gain the benefit of Booker. But such a result would not be inherently unreasonable; Congress might create a regime where those who must be resentenced for some other reason should be fully resentenced. As described below, that is not the case here.

The government's final counter-argument is convincing. Section 3582(c)(2) provides that the district court may reduce the term of imprisonment, "if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). One of the applicable statements of the Sentencing Commission provides: "Except as provided in subdivision (B), 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 determined under subdivision (1) of this subsection." U.S.S.G. 1B1.10(b)(2)(A); see also U.S.S.G. 1B1.10, Application Note 3.⁴ Thus, Fanfan's claim for additional relief is foreclosed by the plain language of the applicable guideline, which is incorporated by reference into the statute which controls the adjusted sentence. Thus, though § 3582(c)(2) was triggered by the amendment to the guideline range pursuant to which Fanfan was sentenced, in this case the statute only authorizes imposition of an adjusted sentence within the new guideline range.⁵

Fanfan cites some precedent to argue against this conclusion. First, Fanfan points to an Eighth Circuit decision which held that "[w]hen a defendant is eligible for a § 3582(c)(2) reduction, the district court must consider all relevant statutory sentencing factors." United States v. Mihm, 134 F.3d 1353, 1355 (8th Cir.1998) (emphasis in original). That court allowed the use of a "safety valve" under 18 U.S.C. § 3553(f), even though such relief would not have been available at the initial sentencing. Id. But the Mihm court did not have the benefit of U.S.S.G. 1B1.10(b)(2)(A), which was added to the guidelines on March 3, 2008, by U.S.S.G. Amendment 712. Further, as described below, the Eighth Circuit itself did not find Mihm controlling when considering the exact issue now raised...