United States v. Harris

• Citation: 688 F.3d 950
• Decision Date: 23 August 2012
• Docket Number: No. 12–1396.,12–1396.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Eric D. HARRIS, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

688 F.3d 950

UNITED STATES of America, Plaintiff–Appellee

v.Eric D. HARRIS, Defendant–Appellant.

No. 12–1396.

United States Court of Appeals,

Eighth Circuit.

Submitted: June 15, 2012.

Filed: Aug. 23, 2012.

Scott Tilsen, AFPD, Cape Girardeau, MO, for appellant.

Abbie Crites–Leoni, AUSA, Cape Girardeau, MO, Allison Hart Behrens, AUSA, St. Louis, MO, for appellee.

Before SMITH, BEAM, and SHEPHERD, Circuit Judges.

SMITH, Circuit Judge.

The district court ¹ sentenced Eric D. Harris to 110 months' imprisonment for distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Subsequently, Harris filed a motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the motion. Harris appeals, arguing that the district court erred in finding that it lacked authority to reduce his sentence. We affirm.

I. Background

On March 16, 2009, Harris distributed cocaine base to a confidential informant (CI). The CI gave Harris $350, and in exchange for the money, Harris gave the CI 3.3 grams of cocaine base. Harris also distributed heroin to the CI. Harris was charged with distributing cocaine base (“Count I”) and distributing heroin (“Count II”), in violation of 21 U.S.C. § 841(a)(1). Pursuant to a plea agreement, Harris pleaded guilty to Count I of the indictment, and the government dismissed Count II.

Pursuant to U.S.S.G. § 2D1.1(c), the presentence investigation report (PSR) calculated a base-offense level of 20 because Harris's offense involved a quantity of cocaine base and heroin equivalent to 68.55 kilograms of marijuana. Because Harris had two prior convictions in 1997 and 2000 for second-degree robbery, the PSR categorized Harris as a career offender under U.S.S.G. § 4B1.1. The applicable offense level listed in the career-offender table in § 4B1.1 was higher than that listed in the drug-quantity table in § 2D1.1; as a result, the PSR applied an offense level of 32, the level listed in the career-offender table. SeeU.S.S.G. § 4B1.1(b)(C). After subtracting three levels for acceptance of responsibility, the PSR calculated a total offense level of 29 and a criminal history category of VI,² which produced a Guidelines range of 151 to 188 months' imprisonment.

The district court sentenced Harris to 110 months' imprisonment and three years of supervised release—well below the Guidelines range. The district court stated that the downward variance was warranted because, “looking at [his] background, even considering those criminal aspects,” the court believed that Harris was “redeemable.” In December 2011, Harris moved for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the Sentencing Guidelines, which reduced the offense levels listed in U.S.S.G. § 2D1.1 for certain crack-cocaine offenses. The court denied his motion on the ground that Amendment 750 did not affect his sentence as a career offender.

II. Discussion

On appeal, Harris argues that the district court erred in denying his motion for a reduction of his sentence because of his career-offender status. Specifically, Harris contends that the district court may modify his sentence pursuant to 18 U.S.C. § 3582(c)(2).

Section 3582(c)(2) states that a district court “may not modify a term of imprisonment once it has been imposed except ... 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.” (Emphasis added.) In that case, “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.” Id. According to the policy statement applicable to § 3582(c)(2), “[a] reduction in the defendant's term of imprisonment ... is not authorized ... if ... [the amendment] does not have the effect of lowering the defendant's applicable guideline range.” U.S.S.G. § 1B1.10(a)(2). Thus,

[i]n determining whether ... a reduction in the defendant's term of imprisonment ... is warranted, the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment[ ] to the guidelines ... had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendment [ ] ... for the corresponding guideline provisions ... and shall leave all other guideline application decisions unaffected.

U.S.S.G. § 1B1.10(b)(1); see also§ 1B1.10 Application Note 1(A) (“[A] reduction in the defendant's term of imprisonment is not authorized ... if ... an amendment [to the Guidelines range] is applicable to the defendant but the amendment does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision....”).

On November 1, 2011, Amendment 759 modified U.S.S.G. § 1B1.10. See U.S.S.G.App. C, Amend. 759 (2011). “Before Amendment 759, ... a district court [could] lower a defendant's prison sentence below the amended [G]uidelines range if the original sentence was, for any reason, below the original [G]uidelines range.” United States v. Glover, 686 F.3d 1203, 1207 (11th Cir.2012) (slip copy) (citing U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2010)). “After Amendment 759, however, a district court may lower a defendant's sentence below the amended [G]uidelines range only if the original sentence was below the original [G]uidelines range because the defendant provided substantial assistance to the government.” Id. (citing U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2011)).

Construing the applicable Guidelines and policy statement, this court has held that “[w]hen a defendant is found to be a career offender [and is sentenced] under section 4B1.1, the applicable [G]uideline[s] range under section 3582(c)(2) is his career[-]offender range, even if the actual sentence is a downward departure [or variance] from it.” United States v. Blackmon, 584 F.3d 1115, 1116 (8th Cir.2009) (per curiam); see also United States v. Tolliver, 570 F.3d 1062, 1066–67 (8th Cir.2009) (citing United States v. Caraballo, 552 F.3d 6, 11 (1st Cir.2008) (“Under an advisory guidelines system, a variance is granted in the sentencing court's discretion after the court has established an appropriately calculated [G]uideline sentencing range. It is that sentencing range that must be lowered by an amendment in order to engage the gears of section 3582(c)(2).” (internal citation omitted))). Thus, under our current precedent, Harris is not eligible for a reduced sentence based on amendments to the crack-cocaine guidelines in U.S.S.G. § 2D1.1 because his sentence is not based on the crack-cocaine guidelines but, rather, on the applicable career-offender range set forth in § 4B1.1(b). Cf. United States v. Lamb, No. 12–10758, –––Fed.Appx. ––––, ––––, 2012 WL 3086220, at *1 (11th Cir. Jul. 31, 2012) (per curiam) (slip copy) (finding that a defendant sentenced pursuant to U.S.S.G. § 4B1.1 was not eligible for a sentence reduction as a result of Amendment 750); United States v. Joulevette, 11–41386, 477 Fed.Appx. 282, 282–83, 2012 WL 3062167, at *1 (5th Cir. Jul. 27, 2012) (per curiam) (slip copy) (same); United States v. Davidson, No. 12–1123, ––– Fed.Appx. ––––, ––––, 2012 WL 2914495, at *2 (3d Cir. Jul. 18, 2012) (per curiam) (slip copy) (same); United States v. Miller, No. 12–2032, ––– Fed.Appx. ––––, ––––, 2012 WL 2855791, at *1 (10th Cir. Jul. 12, 2012) (slip copy) (same); United States v. Boone, 474 Fed.Appx. 98, 99 (4th Cir.2012) (per curiam) (slip copy) (same).

Nonetheless, Harris avers that he is eligible for a reduced sentence even though he was sentenced as a career offender pursuant to § 4B1.1(b). Specifically, he contends that (1) Freeman v. United States, –––U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), undermines this court's prior holdings and warrants the imposition of a § 3582(c) reduction; (2) Amendment 759 to U.S.S.G. § 1B1.10, which limits the district court's discretion to modify a sentence in cases such as this one, is invalid; and (3) Amendment 759 to U.S.S.G. § 1B1.10 exceeds the Sentencing Commission's authority under 28 U.S.C. § 994(u) and violates separation of powers. We review de novo the district court's legal conclusions regarding the scope of its authority under the Sentencing Guidelines. United States v. Moreno, 679 F.3d 1003, 1004 (8th Cir.2012) (per curiam).

A. Section 3582(c) in Light of Freeman

First, Harris contends that the Supreme Court's holding in Freeman undermines this circuit's precedent that a career offender sentenced under U.S.S.G. § 4B1.1(b) is not eligible for a reduced sentence based on amendments to the crack-cocaine guidelines. In Freeman, the Supreme Court considered whether “defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence may be said to have been sentenced ‘based on’ a Guidelines sentencing range, making them eligible for relief under § 3582(c)(2).” 131 S.Ct. at 2691.³ A four-Justice plurality found that the district court could consider whether to reduce the sentence of a defendant who entered into an agreement because “[e]ven when a defendant enters into an 11(c)(1)(C) agreement, the judge's decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” Id. at 2695.

Justice Sotomayor, who concurred in the judgment, rejected the plurality's view that because “a district court [must] use the Guidelines as a yardstick in deciding whether to accept [an 11(c)(1)(C) ] agreement[,] ... the term of imprisonment imposed by the court is ‘based on’ a particular Guidelines sentencing range.” Id. at 2696. Instead, she determined that “[t]he term of imprisonment imposed pursuant to [an 11(c)(1)(C) ] agreement is...