U.S. v. Garcia

• Decision Date: 12 September 2011
• Docket Number: No. 10–10869.,10–10869.
• Citation: 655 F.3d 426
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Moises GARCIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

655 F.3d 426

UNITED STATES of America, Plaintiff–Appellee,

v.Moises GARCIA, Defendant–Appellant.

No. 10–10869.

United States Court of Appeals, Fifth Circuit.

Sept. 12, 2011.

Nancy E. Larson, Assistant U.S. Attorney, Fort Worth, TX, for Plaintiff–Appellee.Kevin Joel Page, Federal Public Defender's Office, Dallas, TX, for Defendant–Appellant.Appeal from the United States District Court for the Northern District of Texas.Before SMITH, BENAVIDES and HAYNES, Circuit Judges.JERRY E. SMITH, Circuit Judge:

Moises Garcia appeals the reduction of his sentence made pursuant to 18 U.S.C. § 3582(c). Because the district court did not err or abuse its discretion, we affirm.

I.

In 2007, Garcia pleaded guilty of possession with intent to distribute 500 grams or more of cocaine and possession of a firearm in furtherance of a drug-trafficking crime, in violation of 21 U.S.C. § 841(b)(1)(B)(ii) and 18 U.S.C. § 924(c), respectively. Garcia's recommended sentencing guideline range of 110 to 137 months for the drug count resulted from his total offense level of 25, derived from the amount of cocaine and crack cocaine he possessed, and from his 13 criminal history points, which placed him in criminal history category VI.

The district court found that category VI overstated the seriousness of Garcia's criminal history¹ and so adjusted it to category V, resulting in a guideline range of 100 to 125 months. The court noted that even if it were to depart down two offense levels and did not take into account the entire amount of drugs indicated in the presentence report, as Garcia urged, the amended range would be 84 to 105 months. The court stated that it could sentence Garcia to 100 months under either calculation, but it specified that it was using the former method of reducing the criminal history category. The court sentenced Garcia to 100 months on the drug count and 60 months on the firearm count, to run consecutively.

In 2010, Garcia filed for a sentence reduction pursuant to § 3582(c) ² based on Amendment 706, a retroactively applicable amendment for crack cocaine offenses.³ Under the amendment, Garcia's offense level would have been reduced by two, resulting in a guideline range of 92 to 115 months without the reduction to his criminal history category, and 84 to 105 months with the lower category V that the district court actually used.

In the district court, Garcia suggested several other ways for the court to calculate a comparable sentence.⁴ First, he proposed that he receive a sentence the same number of months (ten) below the bottom of the new range as the court had departed from the old range, which would have yielded a sentence of 82 months. Second, he proposed a downward departure by the same percentage as the prior departure, which would have led to a sentence of 83.6 months. Third, because the Sentencing Commission had proposed an amendment in 2010 that eliminated the addition of two criminal history points if a defendant committed an offense less than two years after release from imprisonment (“recency points”),⁵ Garcia suggested that the district court reduce his criminal history by two more points than it had originally done, which would have resulted in a guideline range of 70 to 87 months. Garcia argued that any of those methods would result in a comparable reduced sentence.

Garcia also contended that the court should impose a sentence of sixty months, regardless of whether it was comparable. He conceded that Dillon v. United States, ––– U.S. ––––, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), held that under U.S.S.G. § 1B1.10(b), courts could not consider any issues at a § 3582(c)(2) modification hearing other than those raised by the retroactive amendment, but he maintained that the mandatory nature of that limitation exceeded the Commission's delegated authority in violation of the separation-of-powers principle, an argument expressly not addressed by the majority in Dillon. See Dillon, 130 S.Ct. at 2691 n. 5. In light of the 18 U.S.C. § 3553(a) factors, Garcia requested that the court reduce his sentence to sixty months even though it might be more than a comparable reduction.

The government agreed that Garcia was eligible for a reduction of two to his offense level pursuant to Amendment 706, resulting in an amended guideline range of 84 to 105 months. The government did not, however, discuss Garcia's constitutional argument other than by saying that § 1B1.10(b) limited the extent of the reduction that could be granted and, in this case, prevented the court from imposing a sentence below 84 months.

The court stated, “[T]o get started, I do not believe that I can under Dillon use this hearing as a basis for doing anything else other than making any adjustment that is sought under the amendments with respect to the cocaine.... I thought my authority was limited to that.” Garcia responded “that there is a separation of powers problem with giving the [Sentencing] Commission the right to determine whether district courts have the power to vary below those guidelines.” The court disagreed and determined that it was bound by Dillon to consider only the two-level retroactive reduction.

The court evaluated but rejected Garcia's alternative methods for a comparable reduction. Instead, it reduced the offense level from 25 to 23 per the retroactive amendment, reduced the criminal history category again from VI to V, and sentenced Garcia, at the bottom of the resulting range, to 84 months.

II.

We review a district court's interpretation and application of the guidelines de novo. United States v. Doublin, 572 F.3d 235, 237 (5th Cir.2009). A district court may reduce a term of imprisonment where the sentencing range has been subsequently lowered by the Sentencing Commission, § 3582(c)(2), “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. The court conducts a two-step inquiry when determining whether to reduce a sentence pursuant to § 3582(c)(2). Dillon, 130 S.Ct. at 2691.

First, the court must follow the instructions in the applicable policy statement, § 1B1.10(b), to decide whether the prisoner is eligible for a sentence modification and the extent of the reduction authorized, Dillon, 130 S.Ct. at 2691. Section 1B1.10 authorizes the court to reduce a sentence if the “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 to the Guidelines Manual listed in” § 1B1.10(c). § 1B1.10(a). The court should determine “the amended guideline range that would have been applicable” if the amendment “had been in effect at the time the defendant was sentenced” but shall consider only the retroactively applicable amendments “and shall leave all other guideline application decisions unaffected.” § 1B1.10(b)(1).

Additionally, a court is generally prohibited from reducing a sentence under § 3582(c)(2) “to a term that is less than the minimum of the amended guideline range.” § 1B1.10(b)(2)(A). Such a reduction is permissible only “[i]f the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing.” § 1B1.10(b)(2)(B). In those situations, a court “may” impose “a reduction comparably less than the amended guideline range.” Id. We review such sentence reductions for abuse of discretion.⁶

The second step requires the “court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by [the retroactive amendment] is warranted in whole or in part under the particular circumstances of the case.” Dillon, 130 S.Ct. at 2692. “Because reference to § 3553(a) is appropriate only at the second step of this circumscribed inquiry, it cannot serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.” Id.

Both the Supreme Court and this court have held that the mandatory nature of § 1B1.10 does not run afoul of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Dillon, 130 S.Ct. at 2692–93; Doublin, 572 F.3d at 238. But neither court has addressed whether § 1B1.10 raises separation-of-powers concerns. See Dillon, 130 S.Ct. at 2691 n. 5; United States v. Evans, 587 F.3d 667, 671 (5th Cir.2009).

III.

Garcia argues that the district court erred in concluding that it was powerless to alter his sentence in any manner other than by reducing his offense level by two and that the court's previous decision to impose a below-range sentence authorized any departure that was “comparable” to that imposed at the initial sentencing. Garcia concedes that the court's method of attaining a comparable reduction (by again reducing his criminal history category from category VI to V) is proper under § 1B1.10, but he maintains that the court could have used alternative methods to reach other sentences that were also comparably less than the original guideline range and that its decision not to consider those methods was an abuse of discretion. He contends that the court's comments at the hearing and its refusal to employ those other methods show that it believed erroneously that it did not have the authority to reduce the sentence by any other method than that employed at the original sentencing. Garcia asserts that if the district court had properly understood that it had broad authority in determining a comparable reduction, it might have considered the Sentencing Commission's then-proposed amendment that eliminated recency points and other § 3553(a) factors.

Garcia misunderstands the district court and conflates several distinct issues. There are three questions before us: (1) Did the court abuse its discretion by calculating Garcia's comparable sentence in the manner that it did to...