United States v. Colon

• Decision Date: 06 February 2013
• Docket Number: No. 12–12794,Non–Argument Calendar.,12–12794,n–Argument Calendar.
• Citation: 707 F.3d 1255
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Christina Elizabeth COLON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

707 F.3d 1255

UNITED STATES of America, Plaintiff–Appellee,

v.Christina Elizabeth COLON, Defendant–Appellant.

No. 12–12794

Non–Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Feb. 6, 2013.

Patricia D. Barksdale, M. Scotland Morris, U.S. Attys., Jacksonville, FL, Yvette Rhodes, Robert E. O'Neill, U.S. Attys., Tampa, FL, for Plaintiff–Appellee.

Adeel Bashir, Fed. Pub. Def., Tampa, FL, Rosemary Cakmis, Donna Lee Elm, Fed. Pub. Defs., Orlando, FL, Lisa Call, Fed. Pub. Def., Jacksonville, FL, for Defendant–Appellant.

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

Before TJOFLAT, CARNES and PRYOR, Circuit Judges.

CARNES, Circuit Judge:

Since the Sentencing Commission issued Amendments 750 and 759 involving the retroactive reduction in the sentencing guidelines base offense level for crack cocaine offenses, we have seen a bushel basket full of appeals from the denial of relief based on those amendments in 18 U.S.C. § 3582(c)(2) proceedings. See, e.g.,United States v. Liberse, 688 F.3d 1198, 1199 (11th Cir.2012) (“This is the third decision we have issued in the past month concerning the application of Amendments 750 and 759 to the sentencing guidelines and the scope of a district court's authority to reduce a defendant's sentence under 18 U.S.C. § 3582(c)(2).”). Only a few of those appeals have had merit. This is not one of those few, although it does raise some issues of first impression.

I.

In 2006 Christina Colon pleaded guilty to distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count 2). The presentence investigation report concluded that she was responsible for 17.9 grams of crack cocaine, which made her base offense level 26. SeeU.S.S.G. § 2D1.1(c)(7) (Nov. 2005). She received a 3–level reduction for acceptance of responsibility and timely notification of her intent to plead guilty, resulting in a total offense level of 23. Colon's criminal history category was I, which resulted in a guidelines range for Count 1 of 46 to 57 months imprisonment. The district court varied downward and sentenced her to 36 months imprisonment for Count 1. On Count 2, the court sentenced her to the mandatory minimum term of five years imprisonment, which was required by statute to run consecutively to the term of imprisonment imposed on Count 1. See18 U.S.C. § 924(c). The result was a sentence of 96 months (36 + 60).

In 2008 Colon filed a motion under 18 U.S.C. § 3582(c)(2) to reduce her sentence on Count 1 based on Amendment 706, which reduced the base offense levels for crack cocaine offenses. See U.S.S.G. App'x C (Nov. 2008) amend. 706. The district court determined that she was eligible for a sentence reduction and calculated an amended guidelines range of 37 to 46 months imprisonment for that count. It also applied a downward variance comparable to the one that had been applied at Colon's original sentencing, resulting in a reduced sentence of 27 months imprisonment for Count 1 and a total sentence of 87 months (27 + 60).

After Congress passed the Fair Sentencing Act of 2010, the Sentencing Commission issued Amendment 750, which again retroactively reduced the base offense levels for crack cocaine offenses. See U.S.S.G. App'x C (Nov. 2011) amends. 750, 759. The Commission also issued Amendment 759, which revised U.S.S.G. § 1B1.10, the policy statement governing motions for sentence reductions under 18 U.S.C. § 3582(c)(2). See U.S.S.G. App'x C (Nov. 2011) amend. 759. Before Amendment 759, a district court had discretion to lower a defendant's sentence below the amended guidelines range subject to some restrictions. SeeU.S.S.G. § 1B1.10(b)(2) (Nov. 2010). And the district court did that for Colon in 2008, when it granted her § 3582(c)(2) motion and reduced her sentence on Count 1 to 27 months. Thereafter, Amendment 759 further restricted a district court's discretion to make that kind of reduction. As a result, § 1B1.10(b)(2) now provides, in part, that “the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range,” unless the original sentence imposed had been below the applicable guidelines range because of a reduction based upon the defendant's substantial assistance to authorities. U.S.S.G. § 1B1.10(b)(2) (Nov. 2011).

In 2011 Colon filed a second § 3582(c)(2) motion to reduce her sentence based on Amendment 750. Under that amendment, Colon's new guidelines range for Count 1 would have been 30 to 37 months imprisonment. But because Colon's current sentence on that count was 27 months, which was below the amended guidelines range, and because the original variance was not based on substantial assistance, the district court concluded that Amendment 759 prevented the use of Amendment 750 to reduce Colon's sentence any further below the amended guidelines range. U.S.S.G. § 1B1.10(b)(2)(A) (Nov. 2011). On that basis, the district court denied Colon's § 3582(c)(2) motion. This is her appeal.

II.

“We review de novo a district court's conclusions about the scope of its legal authority under § 3582(c)(2).” United States v. James, 548 F.3d 983, 984 (11th Cir.2008).

A.

Colon first contends that the district court's application of the post-Amendment 759 version of U.S.S.G. § 1B1.10(b)(2) to her case violated the Ex Post Facto Clause. That clause prohibits “the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). “Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Id.

The measuring point for purposes of the Ex Post Facto Clause is the time that Colon committed her crimes, which was in 2005, long before Amendments 750 and 759 were issued in 2011. As a result, Amendment 759's restriction on the district court's discretion to reduce Colon's sentence based on Amendment 750 did not increase the punishment “assigned by law when the act to be punished occurred.” Weaver, 450 U.S. at 30, 101 S.Ct. at 965 (emphasis added). The net effect of Amendments 750 and 759 was not to increase her range of punishment above what it was at the time she committed her crimes. Colon's guidelines range after those amendments was the same as it would have been without them. So long as the effect of post-conduct amendments to the guidelines is not to increase a defendant's punishment beyond what it would have been without those amendments, “the imposition of punishment [is not] more severe than the punishment assigned by law when the act to be punished occurred,” id., and there is no ex post facto problem.

B.

Colon also contends that the district court erred in applying the post-Amendment 759 version of U.S.S.G § 1B1.10(b)(2) to her case because the Sentencing Commission's amendment of that policy statement exceeded its authority under the Sentencing Reform Act, 28 U.S.C. § 994. The Sentencing Reform Act states that “[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” 28 U.S.C. § 994(u).

Although we have not yet addressed this issue, the other two circuits that have addressed it have held that the Sentencing Commission did not exceed its authority under 28 U.S.C. § 994 in prohibiting reductions below a prisoner's amended guidelines range. See United States v. Berberena, 694 F.3d 514, 520–23 (3rd Cir.2012); United States v. Anderson, 686 F.3d 585, 589–90 (8th Cir.2012). We agree. The Commission amended § 1B1.10(b)(2), which is part of a policy statement, to prohibit § 3582(c)(2) reductions below a prisoner's amended guidelines range, unless the original sentence had been below the applicable guidelines range because of a reduction based upon the defendant's substantial assistance to authorities. In doing that, the Commission indicated “in what circumstances and by what amount the sentences of prisoners” may be reduced based on retroactive amendments—an action it was clearly authorized to take by the plain language of § 994(u) of the Sentencing Reform Act.

The Act not only gives the Commission authority to issue policy statements governing sentence reductions, it actually requires the Commission to issue them. Section 994(a) provides that the Commission must promulgate general policy statements that address “the appropriate use of ... the sentence modification provisions set forth in section[ ] ... 3582(c) of title 18.” 28 U.S.C. § 994(a)(2)(C). And the text of 18 U.S.C. § 3582(c)(2) requires courts to abide by those policy statements:

[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 ..., 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) (emphasis added); see also Dillon v. United States, 560 U.S. ––––, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010) (interpreting § 3582(c)(2) as “requir[ing] the court to follow the Commission's instructions in § 1B1.10 to determine the prisoner's eligibility for a sentence modification and the extent of the reduction authorized”). To summarize, § 994(u) requires the Commission to...