U.S. v. Sykes

• Decision Date: 26 September 2011
• Docket Number: No. 10–50399.,10–50399.
• Citation: 2011 Daily Journal D.A.R. 14567,658 F.3d 1140,11 Cal. Daily Op. Serv. 12289
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jerome SYKES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

658 F.3d 1140

11 Cal. Daily Op. Serv. 12,289

2011 Daily Journal D.A.R. 14,567

UNITED STATES of America, Plaintiff–Appellee,

v.Jerome SYKES, Defendant–Appellant.

No. 10–50399.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 2011.Filed Sept. 26, 2011.

Sean K. Kennedy, Federal Public Defender and Matthew B. Larsen (argued), Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.André Birotte Jr., United States Attorney, Robert E. Dugdale and David M. Herzog (argued), Assistant United States Attorneys, Los Angeles, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Central District of California, George H. King, District Judge, Presiding. D.C. No. 2:04–cr–00484–GHK–1.Before: ARTHUR L. ALARCÓN, DIARMUID F. O'SCANNLAIN, and BARRY G. SILVERMAN, Circuit Judges.

OPINION

ALARCÓN, Circuit Judge:

Jerome Sykes appeals from the district court's denial in part of his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He contends that the district court's modification of his sentence to the 120–month mandatory minimum term pursuant to 21 U.S.C. § 841(b)(1)(A) constituted the application of a new sentence, in violation of Dillon v. United States, ––– U.S. ––––, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010), and that the sentence the court ordered violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We affirm because we conclude that the district court's application of the 120–month mandatory minimum term pursuant to § 841(b)(1)(A) did not constitute the imposition of a new sentence.

I

A

On February 24, 2004, Jerome Sykes was indicted in the United States District Court for the District of Nevada on four counts of distribution of a controlled substance. In accordance with a written plea agreement, he pled guilty on May 17, 2004, to Count 1 of the indictment, distribution of at least 5 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) (1999); and Count 4, distribution of at least 50 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (1999).

Sykes admitted at his plea hearing that he had, in fact, distributed “at least 50 grams of a mixture or substance that contained cocaine base.” The court informed him that it was required to impose a mandatory minimum sentence of five years for Count 1 and ten years for Count 4. Sykes stated that he understood, and confirmed that he still wished to plead guilty.

At his sentencing hearing on August 23, 2004, the district court calculated his mandatory ¹ Sentencing Guidelines range at 121 to 151 months. ² The district court did not state in that hearing that he was subject to a mandatory minimum term. It sentenced him to a low-end sentence of 121 months.³

B

On November 1, 2007, the U.S. Sentencing Commission promulgated Amendment 706 to the Sentencing Guidelines. U.S.S.G. app. C, amend. 706 (Supp.2007). Amendment 706 “modifies drug quantity thresholds in the Drug Quantity Table [of § 2D1.1]” by adjusting those quantities downward two offense levels, “so as to assign, for crack cocaine offenses, base offense levels corresponding to guideline ranges that include the statutory minimum penalties.” ⁴ Id. (emphasis omitted). Under Amendment 706, “50 grams of cocaine base are assigned a base offense level of 30 (97 to 121 months at Criminal History Category I, which includes the ten-year (120 month) statutory minimum for such offenses).” Effective May 3, 2008, the Sentencing Commission revised policy statement § 1B1.10 to include Amendment 706 in the list of amendments to the Guidelines which apply retroactively. U.S.S.G. § 1B1.10(c) (eff. May 3, 2008).

On February 18, 2009, Sykes filed a motion pursuant to 18 U.S.C. § 3582(c)(2) ⁵ to reduce his sentence based on Amendment 706. In his motion, Sykes argued,

First, the amendment to § 2D1.1 and the Sentencing Commission's decision to make it retroactive means the Court may reduce Mr. Sykes's sentence and impose a new sentence under 18 U.S.C. § 3582(c)(2). Second, there is no mandatory minimum because the requirements of Apprendi have not been satisfied. There was no allegation in the indictment, let alone a finding by the court, that the cocaine base in question was ‘crack,’ as required by the Ninth Circuit's recent decision in United States v. Hollis, 490 F.3d 1149 (9th Cir.2007),⁶ see id. at 1156.

In a written order filed on August 6, 2010, the district court calculated the applicable amended Sentencing Guidelines as 97 to 121 months pursuant to § 2D1.1. It further held that the mandatory minimum was applicable, and because that mandatory minimum statutory sentence was 120 months, it modified Sykes' sentence under the amended version of § 2D1.1 to 120 months. We have jurisdiction over Sykes' timely appeal pursuant to 28 U.S.C. § 1291.

II

In the § 3582(c)(2) proceeding, Sykes argued that the statutory minimum sentence of 120 months was not “imposed” at the time of his original sentencing. Instead, the district court imposed a sentence of 121 months pursuant to the Sentencing Guidelines range applicable to a base offense level of 34 and Criminal History Category I under U.S.S.G. § 2D1.1. Before this court, Sykes argues that the district court's imposition of the mandatory statutory minimum in the § 3582(c)(2) proceeding constituted a resentencing rather than a sentence modification. Therefore, he maintains that his sentence must be vacated and this case should be remanded for a sentence reduction pursuant to the amended Sentencing Guidelines range, without regard to the mandatory minimum term under § 841(b)(1)(A)(iii).

The denial of a motion to modify a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion. United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir.2009). A district court's refusal to depart below the statutory minimum sentence is reviewed de novo, “because that decision involve[s] a question of law and not the exercise of discretion.” United States v. Wipf, 620 F.3d 1168, 1169 (9th Cir.2010).

Before the district court, the parties relied on United States v. Hicks, 472 F.3d 1167 (9th Cir.2007). In Hicks, we held that, even where the defendant had been originally sentenced prior to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Booker nonetheless applied in sentence modification proceedings conducted pursuant to § 3582(c)(2). Hicks, 472 F.3d at 1171–72. We stated, “ Booker was not a mere statutory change which can be set aside to allow us to pretend it is 1993 for the purpose of modifying Hicks' sentence; rather, it provides a constitutional standard which courts may not ignore by treating Guidelines ranges as mandatory in any context.” Id. at 1173. Sykes argued that, like Booker, “ Apprendi and its progeny are not a mere statutory change,” and that, under Hicks, the district court was required to apply Apprendi in modifying his sentence. The Government asserted that the tension faced by a district court in determining whether to treat the Guidelines as mandatory in a § 3582(c)(2) proceeding would not arise with respect to a claim under Apprendi because § 3582(c)(2) “does not permit, let alone require, a district court to reconsider non-Guidelines-related claims, constitutional or otherwise....”

Prior to issuance of the district court's order, the Supreme Court abrogated Hicks in Dillon v. United States, ––– U.S. ––––, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). The Court held that, because § 3582(c) proceedings are governed by the policy statements issued by the Sentencing Commission, and because the policy statement encompassed in U.S.S.G. § 1B1.10 “instructs courts proceeding under § 3582(c)(2) to substitute the amended Guidelines range while ‘leav[ing] all other guideline application decisions unaffected[,]’ ” a district court is not required to apply Booker in § 3582(c)(2) proceedings. Id. at 2688–89, 2692–93 (quoting U.S.S.G. § 1B1.10). Interpreting the text and scope of § 3582(c)(2), the Court concluded that “Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Id. at 2691. With respect to the constitutional concerns presented by Dillon, the Court stated, “We are aware of no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent Guidelines amendments. Rather, § 3582(c)(2) represents a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines.” Id. at 2692.

Because § 3582(c)(2) proceedings are limited by the policy statements of the Sentencing Commission, we have held that district courts may not vary below the reduced Guidelines range in modifying the defendant's sentence. United States v. Fox, 631 F.3d 1128, 1130–33 (9th Cir.2011), petition for cert. filed, ––– U.S.L.W. –––– (U.S. June 10, 2011) (No. 10–11130); see also Freeman v. United States, ––– U.S. ––––, 131 S.Ct. 2685, 2692–93, 180 L.Ed.2d 519 (2011) (“[T]he policy statement seeks to isolate whatever marginal effect the since-rejected Guideline had on the defendant's sentence. Working backwards from this purpose, § 3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the [plea] agreement.”).

Sykes' sentencing range under the Guidelines in effect on the date of his sentencing, August 23, 2004, was 121 to 151 months—one month more than the mandatory statutory minimum sentence of 120 months provided by § 841(b)(1)(A). The district court lacked the discretion to vary below the Sentencing Guidelines Range of 121 to 151 months prior to Booker. See 18...