United States v. Hippolyte

• Decision Date: 14 March 2013
• Docket Number: No. 11–15933.,11–15933.
• Citation: 712 F.3d 535
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Louis Jean HIPPOLYTE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

712 F.3d 535

UNITED STATES of America, Plaintiff–Appellee,

v.Louis Jean HIPPOLYTE, Defendant–Appellant.

No. 11–15933.

United States Court of Appeals, Eleventh Circuit.

March 14, 2013.

Todd B. Grandy, Robert E. O'Neill, Yvette Rhodes, Terry A. Zitek, U.S. Attys., Tampa, FL, Peggy Morris Ronca, U.S. Atty., Orlando, FL, for Plaintiff–Appellee.

Rosemary Cakmis, Fed. Pub. Def., Orlando, FL, Adeel Bashir, Fed. Pub. Def., Tampa, FL, for Defendant–Appellant.

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

Before TJOFLAT and HILL, Circuit Judges and HUCK,^* District Judge.

TJOFLAT, Circuit Judge:

On August 9, 1996, a jury found Louis Jean Hippolyte guilty on one count of conspiracy to possess with intent to distribute crack cocaine (Count One), two counts of distribution of crack cocaine (Counts Four and Five), one count of possession of crack cocaine with intent to distribute (Count Seven), and one count of possession of cocaine powder with intent to distribute (Count Six). ¹ On November 1, 1996, the District Court sentenced Hippolyte to concurrent prison terms. On Counts One, Four, Five, and Seven, the court imposed on each count the statutory mandatory minimum sentence of 240 months; ² on Count Six, the court imposed a concurrent term of 189 months. On October 28, 1997, this court affirmed his convictions and sentences. United States v. Hippolyte, 130 F.3d 442 (11th Cir.1997) (Table).

On October 31, 2011, Hippolyte moved the District Court to reduce his sentences on Counts One, Four, Five, and Seven pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the U.S. Sentencing Guidelines, which lowered the base offense level for crack cocaine offenses,³ and the Fair Sentencing Act of 2010 (the “FSA”), Pub.L. No. 111–220, 124 Stat. 2372. The District Court denied his motion on the ground that because he had received the statutory mandatory minimum sentence for his crack cocaine offenses, he was ineligible for a sentence reduction under § 3582(c)(2). He appeals its decision. We affirm.

I.

Hippolyte argued in the District Court, as he does on appeal, that the FSA applies in § 3582(c)(2) proceedings, such that the District Court had the authority to reduce his sentences on Counts One, Four, Five, and Seven below the statutory mandatory minimum. We disagree. To explain why, we revisit why and how the District Court structured his sentences as it did in November 1996.

The presentence investigation report (the “PSI”), which the District Court adopted, determined that Hippolyte was responsible for 220 grams of crack cocaine and 544.9 grams of powder cocaine. Because there was more than one controlled substance at issue,⁴ the PSI applied the drug equivalency tables⁵ and converted these amounts to the equivalent of 4,508.98 kilograms of marijuana. This quantity resulted in a total offense level of 34. ⁶ Because Hippolyte had two prior convictions for which he had received sentences of probation, he was assigned criminal history category II. U.S.S.G. § 4A1.1(c) (1995). Under the Sentencing Table, the sentence range for an offense level of 34 and criminal history category II was 168 to 210 months' imprisonment. U.S.S.G. Ch. 5, Pt. A (1995). The statutory mandatory minimum sentence for crack cocaine offenses controlled, so Hippolyte received sentences of 240 months' imprisonment for each of those offenses. See21 U.S.C. § 841(b)(1)(A)(iii) (1996)⁷; U.S.S.G. § 5G1.1(c)(2) (1995).

If Amendment 750 were applied in his case, Hippolyte's offense level would be reduced from 34 to 30,⁸ resulting in a new sentence range of 108 to 135 months' imprisonment.⁹ And if the FSA were applied as well, the statutory mandatory minimum for his crack cocaine offenses would be 120 months,¹⁰ instead of 240 months, resulting in a new sentence range of 120 to 135 months.

II.

Hippolyte's position is that both Amendment 750 and the FSA apply in his § 3582(c)(2) proceeding. He advances the novel argument that one of the changes made by Amendment 759 to the Sentencing Guidelines, which became effective on November 1, 2011, was to add a brand-new definition of “applicable guideline range” to U.S.S.G. § 1B1.10, and that this new definition significantly changes the way sentencing reductions work under § 3582(c)(2), in Hippolyte's favor. See Amendment 759, U.S.S.G.App. C—Vol. III, at 416 (2011), codified at U.S.S.G. § 1B1.10 cmt. n. 1(A) (2011).¹¹

Hippolyte correctly points out that Amendment 759 defined the term “applicable guideline range” for the first time ever in the Sentencing Guidelines. Under Amendment 759, a defendant's applicable guideline range is now defined as “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n. 1(A) (2011). Prior to Amendment 759, this court had defined the “applicable guideline range” as “the scope of sentences available to the district court, which could be limited by a statutorily imposed mandatory minimum ‘guideline sentence.’ ” United States v. Williams, 549 F.3d 1337, 1340 (11th Cir.2008). In other words, prior to Amendment 759 this court defined “applicable guideline range” to include any applicable mandatory minimum sentence. But now, Hippolyte argues, that definition and the cases based on it are obsolete because the Sentencing Commission has, in Amendment 759, defined “applicable guideline range” to include only the offenselevel and criminal history category, and to exclude any statutory mandatory minimums.

This is important because Commentary Application Note 1(A) to U.S.S.G. § 1B1.10 says that “[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in subsection (c)¹² that lowers the applicable guideline range.” Hippolyte argues that in accordance with this Application Note, he was eligible for consideration under § 3582(c)(2) because it is undisputed that Amendment 750 lowered his applicable guideline range—as Hippolyte defines it—from 168 to 210 months to 108 to 135¹³ months because Amendment 750 lowered his offense level from 34 to 30.¹⁴ Thus, he argues that because his applicable guideline range was lowered he is eligible for § 3582(c)(2) relief.¹⁵ And he argues that the FSA applies to § 3582(c)(2) proceedings. Thus, the statutory mandatory minimum sentence applicable to his crack cocaine offenses is 120 months instead of 240,¹⁶ and his sentences should be reduced to a term from 120 to 138 months.

In Dorsey v. United States, ––– U.S. ––––, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), the Supreme Court held that the more lenient statutory mandatory minimum sentences for drug convictions found in the FSA apply to defendants who committed crimes before the FSA but were sentenced subsequent to its enactment. In addition to reducing minimum sentences, the FSA also required the Sentencing Commission to promptly issue “conforming amendments” that would lower sentence ranges in such a way as to make them proportional to the new mandatory minimum sentences. The Dorsey Court held that even though the Savings Statute, 1 U.S.C. § 109, required application of the FSA to pre-Act offenders to be express in the FSA, and the FSA was silent on the subject, there was a “fair implication” that Congress's goals of consistency, avoiding disparity, and eliminating unfairness implied that it intended the new minimums to so apply to make mandatory minimums and the new guideline sentence ranges proportional. Dorsey, 132 S.Ct. at 2326. Hippolyte argues that just as in post-FSA sentencing of pre-FSA offenders, Congress also intended that the FSA apply to drug crime sentence reductions under § 3582(c)(2) for the same reasons articulated in Dorsey, and that therefore the statutory mandatory minimums found in the FSA must be applied in conjunction with the retroactive guideline amendment that the FSA directed the Sentencing Commission to promulgate. In sum, Hippolyte argues that it would be inconsistent to apply the more lenient sentence ranges of Amendment 750, but keep the harsh pre-FSA mandatory minimums in § 3582(c)(2) proceedings; they should thus be employed in tandem to eliminate disparities in sentencing.

Finally, Hippolyte argues that there is no case on point that applies to the facts of his case. Hippolyte cites United States v. Berry, 701 F.3d 374 (11th Cir.2012), in which this court affirmed the denial of a sentence reduction for Berry, a career offender, seeU.S.S.G. § 4B1.1, who was seeking application of the FSA in a § 3582(c)(2) proceeding, as the closest case. But Hippolyte argues that Berry is inapposite because Berry was a career offender, not a drug offender whose sentence was determined by the statutory mandatory minimum provision of 21 U.S.C. § 841(b)(1). And he argues that Berry's sentence was determined solely by his status as a career offender; as such, Berry relied solely on the FSA in attempting to get his sentence reduced under § 3582(c)(2). He argues that he, unlike Berry, relies on the FSA and Amendment 750, which adjusts the applicable guideline range and thus makes him eligible for a sentence reduction under § 3582(c)(2).

III.

A district court may modify a sentence if the defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “The grounds upon which a district court may reduce a defendant's sentence pursuant to § 3582(c)(2) are quite narrow.” Berry, 701 F.3d at 376 (citing United States v. Armstrong, 347 F.3d 905, 909 (11th Cir.2003)). “The Sentencing Commission must have amended the Sentencing Guidelines, pursuant to 28 U.S.C. § 994( o), that guidelines amendment must have lowered the defendant's sentencing range, and it must be one that is listed in U.S.S.G. § 1B1.10(c).” Id. (citing 18 U.S.C. §...