United States v. Erskine

• Decision Date: 23 May 2013
• Docket Number: Docket No. 12–921.
• Citation: 717 F.3d 131
• Parties: UNITED STATES of America, Appellee, v. Eric ERSKINE, also known as Black, Darryl Deas, also known as Solo, also known as Darrell Deas, Steven Bethea, also known as Tee, Nehemiah Brown, also known as Ike, Bornthia Plummer, Defendants, Swahili Johnson, also known as Suave, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

717 F.3d 131

UNITED STATES of America, Appellee,

v.Eric ERSKINE, also known as Black, Darryl Deas, also known as Solo, also known as Darrell Deas, Steven Bethea, also known as Tee, Nehemiah Brown, also known as Ike, Bornthia Plummer, Defendants,Swahili Johnson, also known as Suave, Defendant–Appellant.

Docket No. 12–921.

United States Court of Appeals,Second Circuit.

Argued: Jan. 15, 2013.

Decided: May 23, 2013.

Andrew L. Fish, (Katherine Polk Failla, Michael A. Levy, Assistant United States Attorneys, on the briefs) for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Avrom Robin, Law Offices of London & Robin, New York, NY, for Defendant–Appellant.

Before: STRAUB, HALL, AND DRONEY, Circuit Judges.

STRAUB, Circuit Judge:

Defendant–Appellant Swahili Johnson appeals from an order of the United States District Court for the Southern District of New York (Denny Chin, Judge ) ¹ granting his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), pursuant to Amendment 750 of the United States Sentencing Guidelines (“Guidelines”). Johnson challenges the District Court's order reducing his sentence based on the court's determination that it was unable to vary below the revised applicable Guidelines range based on Guidelines § 1B1.10.

For the reasons that follow, we hold that the District Court did not err in declining to apply a downward variance to sentence Johnson below the reduced Guidelines range. Under § 1B1.10 of the Guidelines, the District Court did not have discretion to apply the variance to which Johnson asserts he was entitled. In spite of Johnson's arguments to the contrary, § 1B1.10 bound the District Court, was a valid exercise of the Sentencing Commission's (“Commission”) authority, and did not violate the Administrative Procedure Act's (“APA”) requirements for the promulgation of formal rules.

Accordingly, we AFFIRM the order of the District Court.

BACKGROUND

On November 23, 2005, defendant Swahili Johnson was arrested and charged with conspiracy to distribute crack cocaine. He pled guilty to distributing fifty grams or more of crack cocaine on June 8, 2006. The District Court formally accepted Johnson's guilty plea on June 8, 2006, and sentenced him on November 29, 2006. At sentencing, the court determined that Johnson's total Guidelines offense level was 35, that his prior offenses placed him in criminal history category VI, and accordingly that his Guidelines range was 292 to 365 months. The District Court then granted a ten-percent downward variance from the bottom of the Guidelines range based on Johnson's personal history, imposing a custodial sentence of 262 months' imprisonment.

On October 23, 2009, the District Court reduced Johnson's sentence pursuant to the retroactive application of Amendment 706 to the Guidelines. We have detailed the history and validity of Amendment 706 in United States v. Savoy, 567 F.3d 71 (2d Cir.2009) (per curiam). In essence, Amendment 706 addressed the disparities in prior sentencings of defendants convicted of certain crimes involving crack cocaine, as compared to defendants convicted of similar crimes involving powder cocaine. The Amendment, “effective November 1, 2007, ... reduced by two levels the base offense level associated with each enumerated quantity of crack cocaine.” Savoy, 567 F.3d at 73;see also U.S.S.G. App. C, amd. 706 (2008).

Thus, as a result of this first reduction, Johnson's offense level fell from 35 to 33, resulting in an applicable Guidelines range of 235 to 293 months. Applying the same ten percent downward variance it had at Johnson's original sentencing, the District Court determined that Johnson's sentence should be reduced to 212 months.

Johnson appealed this sentence reduction, arguing, inter alia, that the District Court failed to recognize its discretion to vary even further downward from the applicable sentencing range. See United States v. Erskine, 406 Fed.Appx. 544, 545 (2d Cir.2011). We affirmed the District Court's calculation of this first reduction. Id. at 546–48.

In November 2011, Johnson moved pro se for a further sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), based on the retroactive application of Amendment 750 to the Guidelines. The District Court then appointed counsel to represent Johnson in connection with this motion.

On February 9, 2012, Johnson's counsel filed a new motion to reduce Johnson's sentence under 18 U.S.C. § 3582(c)(2) pursuant to Amendment 750, which was effective as of November 1, 2011. See U.S.S.G. App. C, amd. 750 (2011). Amendment 750, much like Amendment 706 before it, was designed to address the disparity between the Guidelines' treatment of crack cocaine and powder cocaine. To accomplish this goal, Amendment 750 further reduced the base offense levels for crack cocaine offenses under § 2D1.1 of the Guidelines. ²

Amendment 750 was made retroactive when it was added to the list of Guidelines amendments under which a defendant could move for a reduced sentence. See U.S.S.G., App. C., amd. 759 (2011). The list of amendments allowing for such retroactive reductions appears in subsection (c) of the policy statement at § 1B1.10 of the Guidelines, which generally governs sentence reductions resulting from Guidelines amendments. See United States v. Berberena, 694 F.3d 514, 518–19 (3d Cir.2012). Prior to November 2011, § 1B1.10 permitted defendants who had originally received a below-Guidelines departure or variance to receive a comparable departure or variance in the context of sentence reductions under 18 U.S.C. § 3582(c)(2). SeeU.S.S.G. § 1B1.10(b)(2) (2010). As amended, however, § 1B1.10 generally prohibits courts from reducing a “defendant's term of imprisonment under [§ 3582(c)(2) ] to a term that is less than the minimum of the amended guideline range....” U.S.S.G § 1B1.10(b)(2)(A). The sole exception to this rule applies to defendants who originally received a downward departure as a result of providing substantial assistance to the Government. SeeU.S.S.G. § 1B1.10(b)(2)(B).³

Based on Amendment 750, Johnson argued that his offense level under § 2D1.1 should be reduced from 33 to 31, making his Guidelines range 188 to 235 months. Johnson further asserted that the District Court should continue to apply the ten-percent downward variance based on his personal history that it had applied both when sentencing him initially and when reducing his sentence in 2009, thus making his second reduced sentence 169 months' imprisonment.

On February 10, 2012, the government filed a submission with the District Court indicating that it did not oppose a reduction in Johnson's sentence to 188 months, but noting that the amended version of § 1B1.10, effective November 1, 2011, did not authorize the District Court to reduce Johnson's sentence based on a downward variance to anything less than 188 months' imprisonment.

On February 23, 2012, the District Court granted Johnson's motion insofar as it granted him a within-Guidelines reduction. It reduced Johnson's sentence to 188 months but denied his request to apply the ten percent downward variance it had twice previously applied. The court determined that § 1B1.10(b)(2)(A) only permitted it to further reduce Johnson's sentence where a downward departure had been granted in the original sentence based on the defendant's substantial assistance to the government, pursuant to Guidelines § 5K1.1. Because Johnson had not originally been granted such a departure, the District Court reasoned that “the limitationin § 1B1.10(b)(2)(A) now applie[d]” to him. JA–139. The District Court noted also that the Second Circuit had determined that § 1B1.10 was binding on district courts. See Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010); United States v. Savoy, 567 F.3d 71, 73–74 (2d Cir.2009). The District Court thus concluded it was “not authorized to sentence Johnson below the amended guideline range of 188 to 235 months.” JA–139.

This timely appeal followed.

DISCUSSION

On appeal, Johnson makes three arguments as to why the District Court erred in determining that it could not apply a downward variance so as to reduce his sentence under Amendment 750 based on his personal history and characteristics, each of which attacks the validity of § 1B1.10. First, he argues that the Commission's 2011 amendment to § 1B1.10 both exceeds the Commission's authority and goes beyond the directives of the Sentencing Reform Act (“SRA”), 18 U.S.C. § 3551 et seq.,28 U.S.C. § 991 et seq., and thus cannot bind the District Court. He bases this argument on the assertion that because § 1B1.10 permits certain retroactive sentence reductions while also limiting the court's ability to apply most departures or variances, it interferes with the “structure of the sentence.” Appellant's Br. at 15. Second, Johnson argues that the Commission's amendment of Guidelines § 1B1.10 violates separation-of-powers principles, and therefore is invalid. Finally, Johnson asserts that the Commission failed to follow the procedural requirements for promulgating formal rules set forth by the APA when it amended § 1B1.10 of the Guidelines, rendering that policy statement invalid.

Several of our sister Circuits have already addressed many or all of the issues that Johnson now raises.⁴See, e.g., Berberena, 694 F.3d 514;United States v. Anderson, 686 F.3d 585, 589–90 (8th Cir.2012); see also United States v. Horn, 679 F.3d 397, 401–02 (6th Cir.2012) (addressing similar arguments as to Guidelines Amendment 709); United States v. Fox, 631 F.3d 1128, 1132 (9th Cir.2011) (addressing similar arguments as to the prior version of § 1B1.10). For reasons substantively akin to those set forth by these Circuits, we hold today that § 1B1.10 of the Guidelines is valid and binding on district courts.

We address each of Johnson's arguments in turn.

I. Standard of Review

We generally review a district court's “[c]onclusions of law,...