U.S.A v. Phillips

• Decision Date: 23 February 2010
• Docket Number: No. 08-17248,No. 09-11210,08-17248,09-11210
• Citation: 597 F.3d 1190
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Reginald PHILLIPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

597 F.3d 1190

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Reginald PHILLIPS, Defendant-Appellant.

No. 08-17248

No. 09-11210

United States Court of Appeals, Eleventh Circuit.

Feb. 23, 2010.

Thomas Jake Waldrop, Stephanie Kearns, Fed. Pub. Defenders, Fed. Def Program, Inc., Atlanta, GA, for Phillips.

William H. Thomas, Jr., John Andrew Horn, Atlanta, GA, for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before CARNES, HULL and ANDERSON, Circuit Judges.

HULL, Circuit Judge:

This sentencing appeal presents questions regarding the interplay of 18 U.S.C § 3582(c), Federal Rule of Criminal Procedure 35(a), and motions for reconsideration. Specifically, does Rule 35(a)'s sevenday time limit for correcting errors in sentences apply to a reduced sentence stemming from a § 3582(c)(2) proceeding? We first recount the events leading to this appeal.

I. BACKGROUND

A. Phillips's 1989 Original Sentence

Following a jury trial in 1989, Ronald Reginald Phillips was convicted of six drug-related offenses involving more than 50 grams of crack cocaine and a firearms offense in relation to a drug trafficking crime. Applying the 1988 sentencing guidelines, the presentence report ("PSR") concluded that Phillips was accountable for: 1, 651.9 grams of crack, 198.3 grams of cocaine powder, and 42 grams of marijuana. Using the equivalency and the doubling rules in the 1988 sentencing guidelines, the drugs were treated as 33, 077.7 grams of heroin.¹

Phillips's base offense level was 36 which was the highest base level in the drug quantity table of the 1988 guidelines. U.S.S.G. § 2D1.1 (1988). A three point enhancement for a leadership role and two more points for obstruction resulted in a total offense level of 41. With a criminal history category of III, Phillips's guidelines range was 360 months to life, with a consecutive term of 60 months' imprisonment under 18 U.S.C. § 924(c) for possessing and using firearms in relation to a drug trafficking crime.

At sentencing the district court adopted the PSR's findings but reduced Phillips's criminal history category to II. That reduction, however, had no effect on the guidelines range. The district court sentenced Phillips to concurrent terms of 360 months' imprisonment on five drug-related counts and a consecutive term of 60 months on the firearms count. We affirmed Phillips's convictions and sentence. See United States v. Claris, 956 F.2d 1079 (11th Cir.1992), modified in part on reh'g 977 F.2d 538 (11th Cir.1992).

In 1995 Phillips filed a motion to vacate his sentence under 28 U.S.C. § 2255 which was denied. The next year he filed multiple § 2255 petitions, all of which the district court denied. That court and this one denied his motions for certificates of appealability.

B. 2008 New Sentence

Thirteen years later in 2008, Phillips filed a pro se motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on Amendment 715 to the sentencing guidelines.² Amendment 715 provided fora two-level reduction in the base offense levels for most offenses involving cocaine base and at least one other controlled substance. See U.S.S.G.App. C, Amend. 715 (Supp. May 2008); U.S.S.G. § 2D1.1 cmt. n.l0(D)(i). Amendment 715 became effective on May 1, 2008 and was made retroactive by Amendment 716. See U.S.S.G. § lB1.10(c).

The district court directed the government to respond to Phillips's § 3582(c)(2) motion and appointed counsel for him. On September 24, 2008, the court conducted a sentencing hearing and heard arguments from counsel for the government and Phillips regarding the § 3582(c)(2) motion. The court also allowed Phillips individually to allocute. The court did not rule at the hearing.

Rather, on December 5, 2008, the court entered a written order granting Phillips's § 3582(c)(2) motion. In its order, the court reduced Phillips's drug-related sentence to 324 months.³ The court acknowledged that the parties disputed whether the 2008 or the 1988 version of the guidelines should be used to calculate Phillips's new base offense level under Amendment 715. Applying Amendment 715 to the 1988 guidelines lowered Phillips's base offense level from 36 to 34, resulting in a total offense level of 39 and a new guidelines range of 324 to 405 months' imprisonment. Under the 2008 version of the guidelines, however, the applicable calculation gave Phillips a base offense level of 38, which, under Amendment 715, would be reduced to a base offense level of 36.⁴Thus, applying the 2008 version would re sult in the same base offense level of 36 that Phillips originally received under the 1988 guidelines and would not alter Phillips's original guidelines range of 360 months to life imprisonment.

In its order, the district court concluded that it should use the 1988 version of the guidelines to determine Phillips's new base offense level under Amendment 715. The court reduced Phillips's imprisonment sentence to 324 months on the drug-related offenses with a consecutive 60-month term on the firearms crime, reasoning in its order:

After considering defendant's file, the factors set forth in § 3553(a), and the provisions and commentary of U.S.S.G. § 1B 1.10, the court agrees with defendant that he should receive a reduced sentence. Under the 1988 [s]entencing [g]uidelines, application of Amendment 706 and 715 to this case yields a base offense level of 34, a total offense level of 39, a criminal history category of II, and a guideline range of 324 to 405 months imprisonment. Defendant's original sentence fell at the bottom of the guideline range, and the court believes that his amended sentence should follow suit. Therefore, in its discretion, the court will reduce defendant's sentence to 324 months, with a consecutive term of 60 months.

(Emphasis added).

In its order, the district court also expressly changed Phillips's sentence to 324months as follows: "The Judgment and Commitment dated November 21, 1989, is hereby AMENDED... to change defendant's sentence from 360 to 324 months imprisonment. All other terms of the Judgment and Commitment will remain unchanged." As a result of the December 5 order, Phillips in fact had a new sentence of 324 months' imprisonment, followed by 60 months' imprisonment for the § 924(c) firearms offense.

C. Government's Motion for Reconsideration

On December 19, 2008, ten business days after the district court's order, the government filed a "Motion for Reconsideration of the Court's Order to Reduce Defendant's Sentence Pursuant to 18 U.S.C. § 3582(c)(2)." The government's motion sought to have Phillips's 1989 sentence of 360 months reinstated based on United States v. James, 548 F.3d 983 (11th Cir.2008).⁵ In James, this Court concluded that, in evaluating whether the crackcocaine Amendment 706 reduced a defendant's base offense level, we look not to the base offense level for James's original sentence in 1989 but to the base offense level for the same amount of drugs at the time of the § 3582 motion.⁶ And in Phillips's case, the government's motion argued the district court erred in applying the 1988 guidelines because under James the current guidelines apply, Amendment 706 did not lower Phillips's base offense level under the 2008 guidelines, and thus the court lacked authority under § 3582(c)(2) to modify Phillips's 1989 sentence.

D. District Court Grants Government's Motion

On January 26, 2009, the district court issued an order granting the government's motion for reconsideration. The district court noted that Local Rule of Civil Procedure 7.2(E) for the Northern District of Georgia provides that "motions for reconsideration" can be filed within ten days after the entry of the order or judgment.⁷The district court concluded that it "has discretion to decide when to amend its prior orders, " that "James is controlling in this case, " and that "the court must calculate [Phillips's] base offense level according to the [s]entencing [g]uidelines currently in effect, rather than according to those in effect at the time of his 1989 conviction." Because Phillips's base offense level under the 2008 guidelines was 38, a two-step reduction under Amendment 715 yielded a base offense level of 36, the same base offense level he received in 1989. Given James and this calculation, the district court granted the government's motion for reconsideration.

In its January 26 order, the district court stated that it was "setting aside...the December 5, 2008 order of this court granting [Phillips's] § 3582(c)(2) motion for reduction of sentence." The court further stated that "Defendant's original sentence of 360 months imprisonment, with a consecutive term of 60 months, therefore remains in place as imposed at his 1989 sentencing. All other terms of the Judgment and Commitment will remain unchanged."⁸

Phillips timely appealed this January 26, 2009 order.

II. DISCUSSION

The parties here do not dispute what James holds or that under James the district court should have applied the 2008 guidelines in effect at the time of Phillips's § 3582(c)(2) motion. No party disputes that there was a clear error in the new sentence of 324 months which the district court imposed on December 5, 2008 in its order granting Phillips's § 3582(c)(2) motion. Rather, the issue here concerns whether the court had jurisdiction on January 26, 2009 to modify the 324-month imprisonment sentence imposed on December 5, 2008 by vacating its December 5, 2008 order.

Phillips argues the district court lacked jurisdiction to modify or vacate his 324-month imprisonment sentence and reinstate his original 360-month sentence because: (1) § 3582(c)(1)(B) provides a district court may not modify an imprisonment sentence except where expressly permitted by statute or Rule 35 of the Federal Rules of Criminal Procedure; (2) there is no other statute permitting the district court to modify his 324-month sentence and thus this modification could only be done pursuant to Rule 35; (3) Rule 35(a) has...