U.S. v. Hasan

• Decision Date: 14 September 2000
• Docket Number: No. 99-2102,99-2102
• Citation: 245 F.3d 682
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLANT, v. HAMEDAH A. HASAN, ALSO KNOWN AS STEPHANIE LOMAX, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 682

245 F.3d 682 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLANT, v. HAMEDAH A. HASAN, ALSO KNOWN AS STEPHANIE LOMAX, APPELLEE.

No. 99-2102

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 14, 2000

Filed: April 3, 2001

Appeal from the United States District Court for the District of Nebraska.

Before Wollman, Chief Judge, McMILLIAN, Richard S. Arnold, Bowman, Beam, Loken, Hansen, Morris Sheppard Arnold, Murphy, and Bye, Circuit Judges, En Banc.

Hansen, Circuit Judge.

The government appeals the district court's decision to grant Hamedah A. Hasan an eight-level downward departure on the basis of post-sentencing rehabilitation at her 18 U.S.C. 3582(c)(2) resentencing. Initially, a divided panel of this court affirmed the district court's judgment. See United States v. Hasan, 205 F.3d 1072 (8th Cir. 2000), petition for reh'g en banc granted, 213 F.3d 1049 (2000). We vacated that opinion and judgment, however, and granted rehearing before the en banc court. We now reverse and remand with directions.

I.

In 1993, Hasan was convicted by a jury of conspiracy to distribute and possession with intent to distribute cocaine and cocaine base, three counts of distribution of and possession with intent to distribute cocaine, two counts of distribution of cocaine base, one count of interstate travel in aid of racketeering, and one count of use of a communication facility in furtherance of a conspiracy. Hasan was held responsible for 5.9 kilograms of cocaine base, which placed her at a base offense level of 40 under the 1992 edition of the United States Sentencing Guidelines Manual (USSG). Additionally, Hasan was given a three-level upward adjustment for her role as a manager in the conspiracy. With a total offense level of 43, Hasan was sentenced to life imprisonment on two counts and lesser concurrent sentences ranging from 48 to 480 months on the other counts.

Thereafter, on November 1, 1994, Congress approved Amendment 505 to the Sentencing Guidelines which eliminated base offense levels 39 and 40 from the Drug Quantity Table of the Sentencing Guidelines. See USSG App. C, Amend. 505 (1995). This amendment was made retroactive, see USSG 1B1.10, and Hasan filed a motion to modify her sentence, pursuant to 18 U.S.C. 3582(c)(2), seeking the benefit of the retroactive amendment. Hasan also asked the district court to consider her post- sentencing in-prison rehabilitative conduct as grounds for a USSG 5K2.0 downward departure below the 324 to 405 month range she had become eligible for as a result of Amendment 505.

The district court applied Amendment 505 to Hasan, which resulted in a new total offense level of 41, and stated that "[c]hanging nothing but the amended sentencing range," it would have sentenced her to 324 months of imprisonment, the lowest possible sentence in the newly available range. (See Appellant's Adden. at 18.) The district court then granted her separate motion for a downward departure based on her good in-prison conduct. The district court departed eight levels downward to a total offense level of 33 and resentenced her to 144 months in prison. The government appeals the grant of her motion for a downward departure in this 3582(c)(2) resentencing proceeding.

II.

"We review the district court's decision to grant a downward departure for an abuse of discretion." United States v. Weise, 89 F.3d 502, 506 (8th Cir. 1996) (citing Koon v. United States, 518 U.S. 81, 91 (1996)). The district court relied on United States v. Wyatt, 115 F.3d 606 (8th Cir. 1997), and statutory language directing a consideration of policy statements for its legal conclusion that it had the authority to grant a downward departure for extraordinary post-sentencing rehabilitation under USSG 5K2.0 at a 3582(c)(2) resentencing. We respectfully disagree with that conclusion. When a district court exercises its discretion based on an erroneous view of the law, it necessarily abuses its discretion. See First Bank v. First Bank Sys., Inc., 84 F.3d 1040, 1044 (8th Cir. 1996).

Section 3582(c)(2) provides for resentencing after a term of imprisonment has been imposed on the following basis:

[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 pursuant to 28 U.S.C. 994(o), . . . 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).

We concluded in Wyatt that this statute "requires a district court to make two distinct determinations" at a resentencing. 115 F.3d at 609. First, "the district court must determine what sentence it would have imposed had the new sentencing range been the range at the time of the original sentencing." Id. The court must leave all previous factual determinations intact at this point and simply determine "what sentence it would have imposed had the retroactive amendment been in effect at the time the defendant was sentenced." Id. at 608; see also USSG 1B1.10 (1998).

The second step requires the district court to decide whether to give the defendant the benefit of that particular reduced sentence (as determined in step one of the analysis). While Amendment 505, which triggered the 3582(c)(2) motion, is retroactive, the district court retains the discretion to determine whether to resentence the defendant within the new lower range. It is not required to do so, and a new lesser sentence is not to be automatically awarded. See id. at 609; see also USSG 1B1.10, comment. (backg'd) (noting that the listing of an amendment as retroactive provides a discretionary reduction "and does not entitle a defendant to a reduced term of imprisonment as a matter of right"). In making this second discretionary determination, the district court considers the facts before it at the time of the resentencing, in light of the factors set forth in 18 U.S.C. 3553(a), to the extent they are applicable, and it may thus reduce the original sentence to the point determined in step one as long as the reduction is consistent with applicable policy statements of the Sentencing Commission. See 18 U.S.C. 3582(c)(2). In this second step of the Wyatt analysis, the guiding factors in 3553(a) and the applicable policy statements of the Sentencing Commission are not grounds for an additional departure below the new sentence length already determined by the district court in step one. Rather, these factors guide the district court's second-step discretionary determination of whether to reduce Hasan's sentence to 324 months.

Here, the district court made two distinct determinations. In the first step, the district court specifically found that it would have imposed a sentence of 324 months of imprisonment under the new sentencing range. The district court erred in its second- step determination, however, because in addition to determining whether to grant the authorized sentencing reduction, the district court further granted a departure below the newly available range on the basis of Hasan's post-sentencing rehabilitation efforts. Although Hasan's in-prison conduct subsequent to her initial sentencing has been commendable and extremely positive, it should have been considered only to aid the district court's second-step determination of whether to resentence her within the new sentencing range. For the reasons that follow, we conclude that the additional eight- level downward departure below the new Guidelines range on the basis of post- sentencing rehabilitation was not authorized by the terms of either the statute or the Guidelines.

The language of the statute, 18 U.S.C. 3582(c)(2), is clear. The factors set forth in 3553(a) and the applicable policy statements are to be considered only when making the decision whether to reduce a term of imprisonment as a result of the Sentencing Commission's lowering of the sentencing range. The statute does not say that the court may reduce the term of imprisonment below the amended sentencing range or that the 3553(a) factors or the applicable policy statements should be considered for such an additional reduction.

In 3582(c)(2), Congress committed "the making of certain policy judgments to the Sentencing Commission." United States v. Jordan, 162 F.3d 1, 5 (1st Cir. 1998), cert. denied, 526 U.S. 1105 (1999); see 28 U.S.C. 994(u) (Sentencing Commission has authority to "specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced."). Accordingly, the Sentencing Commission issued USSG 1B1.10, the "applicable policy statement," to govern the implementation of 3582(c)(2). This policy statement specifically addresses when a reduction in a term of imprisonment is authorized under the statute. It states, "[i]n determining whether, and to what extent, a reduction in sentence is warranted for a defendant eligible for consideration under 18 U.S.C. 3582(c)(2), the court should consider the sentence that it would have imposed had the amendment(s) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced." USSG 1B1.10(b).

The Sentencing Commission has also established limits on the relief which can be given to a prisoner at a 3582(c)(2) resentencing. Application Note 3 to 1B1.10 provides in part: "Under subsection (b), the amended guideline range and the term of imprisonment already served by the defendant limit the extent to which an eligible defendant's sentence may be reduced under 18 U.S.C. 3582(c)."

The only time a district court is authorized by 1B1.10 to depart downward from the amended sentencing range at a 3582(c) resentencing is when a downward departure previously had been granted at the original sentencing. "When the...