U.S. v. Vautier

• Citation: 144 F.3d 756
• Decision Date: 24 June 1998
• Docket Number: No. 96-2256,96-2256
• Parties: 11 Fla. L. Weekly Fed. C 1503 UNITED STATES of America, Plaintiff-Appellee, v. Wayne Thomas Charles VAUTIER, a.k.a. Ian Garfield McKinnon, etc., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 756

144 F.3d 756

11 Fla. L. Weekly Fed. C 1503

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Thomas Charles VAUTIER, a.k.a. Ian Garfield McKinnon,

etc., Defendant-Appellant.

No. 96-2256.

United States Court of Appeals,

Eleventh Circuit.

June 24, 1998.

Rehearing En Banc Denied July 22, 1998.

John S. Mills, Foley & Lardner, Jacksonville, FL, for Defendant-Appellant.

Ann Frances Carpini, Ft. Myers, FL, Susan H. Rothstein, Tampa, FL, Edward L White III, Asst. U.S. Atty., Orlando, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before COX and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge.

ON PETITION FOR REHEARING.

HULL, Circuit Judge:

Appellant's Petition for Rehearing is GRANTED in part and DENIED in part. While the majority of the previous opinion remains the same, this court has revised certain portions of the previous opinion to address matters raised in Appellant's Petition for Rehearing. Thus, the court VACATES and WITHDRAWS the previous opinion dated May 11, 1998, 140 F.3d 1361 (11th Cir.1998), and substitutes the following opinion.

Appellant Wayne Thomas Charles Vautier appeals the district court's denial of his motion to reduce his sentence filed pursuant to 18 U.S.C. § 3582(c)(2). We affirm.

I. FACTS

A. Original Sentence

Vautier pled guilty to conspiracy to manufacture and possess with intent to distribute 100 or more marijuana plants in violation of 21 U.S.C. § 846, possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c), and conspiracy to use intimidation and threats and/or corruptly persuading another person to influence the testimony in an official proceeding in violation of 18 U.S.C. §§ 371 and 1512(b)(1). At sentencing, the district court found Vautier responsible for 465 marijuana plants and 206 grams of hashish oil. Under the sentencing guidelines, the marijuana plants and hashish oil were converted into a marijuana equivalency of 475.10 kilograms, giving Vautier a base offense level of 28. See U.S.S.G. § 2D1.1 (1992).

The district court made several adjustments to Vautier's offense level. The district court adjusted Vautier's offense level upward four levels for his role in the offense and two levels for obstruction of justice. The district court also adjusted the offense level downward two levels for acceptance of responsibility, giving Vautier an adjusted offense level of 32. On the Government's 5K2.1 motion, the district court departed upward six levels for Vautier's causing the death of his brother during the commission of a drug trafficking offense. On the Government's 5K1.1 motion for substantial assistance, the district court departed downward eight levels, making Vautier's final total offense level 30. ¹ The court sentenced Vautier to a total of 120 months. ² Vautier's sentence was affirmed on direct appeal. United States v. Vautier, 36 F.3d 93 (11th Cir.1994) (table).

B. Amendment 516

Two years later, the Sentencing Commission adopted Amendment 516, which reduced the weight equivalent per plant from 1,000 grams to 100 grams of marijuana. See U.S.S.G. § 2D1.1(c) (1995). Under Amendment 516, the total weight of marijuana attributable to Vautier for sentencing purposes would be reduced to 47.8 kilograms, resulting in a base offense level of 20, as opposed to the base offense level of 28 at sentencing. The Sentencing Commission expressly provided that Amendment 516 have retroactive effect. See U.S.S.G.App. C, amend. 516.

A defendant serving a prison sentence may seek a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2) if the guideline range applicable to that defendant is lowered as a result of Amendment 516. U.S.S.G. § 1B1.10 (1995). Based on Amendment 516, Vautier filed a motion to reduce his sentence pursuant to § 3582(c)(2). The district court denied the motion, stating that "in light of this Court's expressed concern of the defendant's demonstrated violence and factoring all of the other considerations that went into the establishment of this defendant's sentence, the same sentence would have been imposed under the current amended guidelines." On appeal, Vautier argues that the district court erred in denying his § 3582(c)(2) motion to reduce his sentence. ³

II. DISCUSSION

We first review § 3582(c)(2) and Sentencing Guideline 1B1.10, which govern the district court's consideration of defendant's motion.

A. Section 3582(c)(2)

Section 3582(c)(2) addresses reductions in sentences when the sentencing range has been lowered and provides as follows:

The court may not modify a term of imprisonment once it has been imposed except that--

...

(2) in 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), 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.

18 U.S.C. 3582(c)(2). In construing § 3582(c)(2), this court has held that "[w]hen a sentencing guideline is amended to benefit an offender and retroactive application is authorized, the district court may reduce the previously imposed sentence 'after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission.' " United States v. Brown, 104 F.3d 1254, 1255 (11th Cir.1997) (quoting in part 18 U.S.C. § 3582(c)(2)).

Section 1B1.10(b) of the Sentencing Guidelines requires the district court to consider what sentence it would have imposed had the retroactive amendment been in effect at the time the defendant was sentenced, as follows:

(b) In 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.

U.S.S.G. § 1B1.10(b). ⁴ The commentary accompanying U.S.S.G. § 1B1.10(b) instructs the court that "[i]n determining the amended guideline range under subsection (b), the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced. All other guideline application decisions remain unaffected." U.S.S.G. § 1B1.10, comment. n.2.

Thus, reading § 3582(c)(2) and the Sentencing Guidelines together, the district court must make two distinct determinations before deciding whether to reduce a defendant's sentence under § 3582(c)(2). See United States v. Brown, 104 F.3d 1254, 1255 (11th Cir.1997); United States v. Wyatt, 115 F.3d 606, 608-09 (8th Cir.1997). First, the court must substitute the amended guideline range for the originally applied guideline range and determine what sentence it would have imposed. In undertaking this first step, only the amended guideline range is changed. All other guideline application decisions made during the original sentencing remain intact. U.S.S.G. § 1B1.10(b), comment. n.2; see also Wyatt, 115 F.3d at 609 (holding that district court must leave intact "all other previous factual decisions concerning particularized sentencing factors"). Second, in light of the conclusion reached in the first step, the court must consider the factors listed in § 3553(a) and determine whether or not to reduce the defendant's original sentence.

B. Vautier's Motion To Reduce

Vautier pro se first contends that the district court was required to grant his motion to reduce his sentence. ⁵ We disagree. Although the district court must undertake the two-step analysis outlined above, the district court is not required to reduce the defendant's sentence. See United States v. Vazquez, 53 F.3d 1216, 1227-28 (11th Cir.1995). Both the language of § 3582(c)(2) and this circuit's precedent indicate that the sentencing court's power to reduce a sentence is discretionary. See 18 U.S.C. § 3582(c)(2) (stating that court "may reduce the term of imprisonment"); United States v. Cothran, 106 F.3d 1560, 1562 (11th Cir.1997) ("A court's power to reduce sentences under § 3582(c)(2) is discretionary.").

In the alternative, Vautier pro se argues that the statutory grant of discretionary authority in § 3582(c) is ambiguous and thus, the rule of lenity should apply. The rule of lenity requires that actual ambiguities in criminal statutes, including sentencing provisions, be resolved in favor of criminal defendants. United States v. Lazo-Ortiz, 136 F.3d 1282, 1286 (11th Cir.1998). Vautier's contention on this point also lacks merit. The grant of authority to the district court to reduce a term of imprisonment is unambiguously discretionary.

Vautier and his counsel next argue that the district court was required to apply its previous eight-level downward departure to the amended guideline when considering what sentence it would have imposed under the amended guideline. It is clear that the court was required to substitute the amended guideline range for the originally applied guideline range and consider what sentence it would have imposed. To date, this court has not addressed whether, as part of this consideration, the district court must re-apply a downward departure granted at the original sentencing.

Vautier and his counsel contend U.S.S.G. § 1B1.10 requires the district court to apply the original adjustments and departures, but this time to a new starting point--the base offense level under the amended guideline. Thus, according to Vautier, the district...