U.S.A v. Flemming

• Decision Date: 27 July 2010
• Docket Number: No. 09-2726.,09-2726.
• Citation: 617 F.3d 252
• Parties: UNITED STATES of Americav.Glenn FLEMMING, a/k/a Nasir Huggins, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

617 F.3d 252

UNITED STATES of Americav.Glenn FLEMMING, a/k/a Nasir Huggins, Appellant.

No. 09-2726.

United States Court of Appeals, Third Circuit.

Argued Jan. 11, 2010.

Opinion Filed July 27, 2010.

As Amended Sept. 27, 2010.

COPYRIGHT MATERIAL OMITTED

Peter A. Levin, Esquire, (Argued) Philadelphia, PA, for Appellant.

Michael L. Levy, United States Attorney, Robert A. Zauzmer, Assistant United States Attorney, Chief of Appeals, Bernadette McKeon (Argued), Assistant United States Attorney, Salvatore L. Astolfi, Esquire, Office of United States Attorney, Philadelphia, PA, for Appellee.

Before AMBRO, CHAGARES, Circuit Judges and JONES,^*District Court Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Glenn Flemming was sentenced in February 2005 to 175 months' imprisonment for federal firearm and crack cocaine offenses committed in 2002. After the United States Sentencing Commission retroactively lowered the offense levels for most crack cocaine offenses by two levels, Flemming moved for a reduction of sentence under 18 U.S.C. § 3582(c)(2). The District Court denied his motion, concluding that it lacked authority to reduce Flemming's sentence because he was a career offender under U.S.S.G. § 4B1.1. On appeal, Flemming argues that, despite his status as a career offender, he is eligible for a sentence reduction under § 3582(c)(2) because the District Court granted him a downward departure under U.S.S.G. § 4A1.3 after concluding that the career offender enhancement overstated the seriousness of his criminal history, and instead sentenced him within the Guidelines range for crack cocaine offenses.

The narrow issue presented in this case-whether a career offender who receives a § 4A1.3 downward departure under a pre-2003 edition of the Sentencing Guidelines to the Guidelines range for crack cocaine offenses is eligible for a sentence reduction under § 3852(c)(2)-is one of first impression in our Court, but one that has divided our sister circuit courts. The First and Second Circuits, as well as a divided panel of the Fourth Circuit, have concluded that such a defendant is eligible for a sentence reduction. The Eighth and Tenth Circuits, as well as a divided panel of the Sixth Circuit, have disagreed.

Though we do so through a somewhat different analysis, we join the First, Second, and Fourth Circuit Courts in concluding that such a defendant is eligible for a sentence reduction under § 3582(c)(2). Accordingly, we vacate the District Court's order and remand for further proceedings.

I. Background

In March 2003, a federal grand jury returned an indictment charging that Flemming possessed with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a) and (b)(1)(C) (Count One); possessed a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count Two); and possessed a firearm as a felon, in violation of 18 U.S.C. § 922(g) (Count Three). A jury convicted Flemming on all three counts.

A. Sentencing

Using the 2001 edition of the Sentencing Guidelines,¹ the Probation Office determined that under the drug quantity table, U.S.S.G. § 2D1.1(c) (the “Crack Cocaine Guidelines”), Flemming's base offense level was 24 because he possessed more than four but less than five grams of crack cocaine. With a criminal history category of V, Flemming's Guidelines range would have been 92 to 115 months' imprisonment. However, Flemming also qualified as a career offender under U.S.S.G. § 4B1.1 ² (the “Career Offender Guidelines”) based on two prior convictions for controlled substance offenses. ³ The career offender enhancement increased Flemming's offense level to 34 and his criminal history category to VI, with a resulting Sentencing Guidelines range of 262 to 327 months' imprisonment. Flemming also faced a mandatory consecutive sentence of 60 months' imprisonment on Count Two. See 18 U.S.C. § 924(c)(1)(A)(i).

At sentencing, Flemming argued that the career offender enhancement overstated his criminal history, warranting a downward departure pursuant to U.S.S.G. § 4A1.3. Under the 2001 edition of the Sentencing Guidelines, § 4A1.3 in relevant part provided:

If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range.

U.S.S.G. § 4A1.3 (2001). In United States v. Shoupe, 35 F.3d 835 (3d Cir.1994), we held that § 4A1.3 authorized a court to depart both horizontally (in criminal history category) and vertically (in offense level). Id. at 839. In the specific context of a defendant subject to the career offender enhancement, we reasoned that “[b]ecause career offender status enhances both a defendant's criminal history category and offense level, ... a sentencing court may depart in both under the proper circumstances.” Id. at 838.

Consistent with our interpretation of § 4A1.3 in Shoupe, the District Court granted Flemming a downward departure in both offense level and criminal history category. The Court explained:

I'm going to start by saying that the guidelines ... as stated in the pre-sentence report are correct. However, under [§ 4A1.3], I believe that ... designating Mr. Flemming as a career offender overstates his criminal history and I find this to be true ... because [of] two things. Number one is because the age at which he committed the offenses ... that are designated to qualify under the criminal history designation. And also, ... although the two offenses in state court are not related, there's no question about that, the sentencing judge gave Mr. Flemming 12 to 24 months.

And therefore, I will depart from the criminal history record. That leaves us with ... an offense level of 24 and a criminal history of five.

Though it did not expressly quantify the extent of its departure, the offense level and criminal history category that the Court was “le[ft] ... with” were the same offense level and criminal history category that applied under the Crack Cocaine Guidelines without the career offender enhancement ( i.e., level 24 and category V). To repeat, the resulting Guidelines range was 92 to 115 months' imprisonment.

Noting that the District Court had “determined that [it was] not going to apply the career offender provisions,” the Government recommended a sentence at the top of the Guidelines range. The District Court followed suit and sentenced Flemming to 115 months' imprisonment on Counts One and Three, and a mandatory consecutive sentence of 60 months' imprisonment on Count Two. Flemming's total sentence was thus 175 months' imprisonment.⁴

B. Motion for Sentence Reduction

Effective November 1, 2007, the Sentencing Commission issued Amendment 706 to the Guidelines, which lowered the base offense level for offenses involving most quantities of crack cocaine by two levels. U.S.S.G. app. C, amend. 706 (Nov. 1, 2007). In May 2008, the Commission made Amendment 706 retroactive. U.S.S.G. app. C, amend. 713 (Supp. May 1, 2008); U.S.S.G. § 1B1.10(c). On the basis of the Amendment, Flemming filed a pro se motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). The District Court appointed counsel to represent Flemming, and that counsel filed a supplemental brief on Flemming's behalf.

The District Court denied Flemming's motion. It reasoned that, although it had granted Flemming a downward departure under § 4A1.3, it had nonetheless adopted the findings of the Presentence Investigation Report and determined that Flemming qualified as a career offender. Citing our decision in United States v. Mateo, 560 F.3d 152 (3d Cir.2009), the Court held that Flemming was not entitled to a sentence reduction because Amendment 706 did not affect his sentencing range under the Career Offender Guidelines.⁵ Flemming timely appealed.

II. Jurisdiction

The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.

II. Discussion

“[A] judgment of conviction that includes [a term of imprisonment] constitutes a final judgment,” 18 U.S.C. § 3582(b), and generally may not be modified by a district court “once it has been imposed,” id. § 3582(c). However, there is a limited exception to this general rule of finality:

[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 ..., 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.

Id. § 3582(c)(2).

We have interpreted this provision as authorizing a district court to reduce a sentence already imposed where two requirements are satisfied: (1) the defendant's initial sentence must have been “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” and (2) the sentence reduction must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id.; United States v. Doe, 564 F.3d 305, 309 (3d Cir.2009). If these two requirements are satisfied, a court may then exercise its discretion-“after considering the factors set forth in section 3553(a) to the extent that they are applicable,” 18 U.S.C. § 3582(c)(2), as well as the factors contained in the commentary to the Commission's policy statements, U.S.S.G. § 1B1.10 cmt. n. 1(B)-to determine whether a reduction in sentence is warranted (as well as the extent of any such reduction).

In this case, the District Court determined that it lacked authority to consider whether a sentence reduction was warranted because Flemming did not satisfy either of the two...