United States v. Lawrence
| Decision Date | 15 November 2011 |
| Docket Number | No. 09–3110.,09–3110. |
| Citation | 662 F.3d 551,398 U.S.App.D.C. 244 |
| Parties | UNITED STATES of America, Appellee v. Melvin LAWRENCE, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the District of Columbia (No. 1:03–cr–00092–1).Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jafee, Assistant Federal Public Defender, entered an appearance.
Michelle Parikh Brown, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and Ann K.H. Simon, Assistant U.S. Attorneys.
Before: SENTELLE, Chief Judge, ROGERS and GRIFFITH, Circuit Judges.
Upon remand by this court after affirming one of his convictions, United States v. Lawrence, 471 F.3d 135 (D.C.Cir.2006), the district court granted a variance from the U.S. Sentencing Guidelines (“U.S.S.G.”) range for career offenders and re-sentenced Melvin Lawrence to 250 months imprisonment (and five years supervisory release) for unlawfully distributing more than 5 grams of cocaine base. Lawrence challenges his re-sentencing on four grounds. We conclude that none has merit.
First, although Lawrence correctly points out that the amount of cocaine base of which he stands convicted was 21.1 grams, not the 29.6 grams of cocaine base stated in the Presentence Report (“PSR”) and adopted by the district court in re-sentencing him,1 both amounts fell within the same quantity range under U.S.S.G. § 2D1.1(c)(7) and carried a maximum sentence of 40 years, see 21 U.S.C. § 841(b)(1)(B)(iii) (2009), when he was re-sentenced on October 5, 2009. Thus, his Guidelines offense level would have been 34 regardless.
Second, Lawrence contends that the district court likely would have imposed a lower sentence but for its refusal to continue his re-sentencing and to consider the effect of pending legislation to eliminate the disparity between crack and powder cocaine on his career offender sentencing range. Pending legislation is far too removed for this court to compel district courts to consider at sentencing, and that is especially well illustrated here where the legislation was never enacted. So far as Lawrence now claims that his re-sentencing reflected a misunderstanding by the district court of the effect of the pending legislation on career offender status, not only is that contention infected with the same remoteness and uncertainty as the other arguments surrounding the pending legislation, but it was never raised below. Defense counsel suggested only that the pending legislation, if enacted, might make a “slight difference” on the mandatory minimums, conceded any effect was “not clear,” and argued Lawrence should not be treated as a career offender at all, neither referring to the link between the career offender sentencing and the statutory maximum nor objecting to the district court's statement that the pending legislation did not address the career offender provisions. The district court granted Lawrence's request for a variance from the guideline career offender sentencing range in view of the district court's policy disagreement with the 100:1 crack-powder disparity. Lawrence, therefore, can show no error, much less plain error.
Contrary to Lawrence's third challenge, the district court did not plainly err, in violation of his Fifth Amendment right against self incrimination, by referencing at re-sentencing his failure to express remorse and accept responsibility. The reference was limited to evaluating the credibility of Lawrence's request for leniency because he had changed while incarcerated. The district court never suggested such failure would be punished by a higher sentence. Indeed, the district court pointed to Lawrence's parole violations as support for its conclusion about his lack of remorse or acceptance of responsibility throughout his adult life. In the absence of precedent sustaining his Fifth Amendment claim, the error, if any, was not plain.
Finally, Lawrence's challenge to the reasonableness of his below-Guidelines re-sentencing fails to demonstrate the district court abused its discretion in applying the career offender guideline provision. Even though his two prior convictions were old and involved the distribution of small amounts of drugs, the district court reasonably explained that drug distribution was a serious offense and Lawrence had a long history of disobeying the law.
On direct appeal, this court affirmed Lawrence's conviction at his first trial of selling 21.1 grams of cocaine base on April 30, 2002, reversed his convictions at a second trial of drugs and firearms for lack of sufficient evidence of constructive possession, and remanded the case for re-sentencing. Lawrence, 471 F.3d at 143. Re-sentencing was scheduled for August 27, 2009. The PSR stated that: the drug offense involved 29.6 grams of cocaine; Lawrence was a “career offender” under U.S.S.G. § 4B1.1 based on two 1991 drug convictions and his offense level was 34 (increased from 26) and that his criminal history category was VI (increased from IV), resulting in a Guidelines sentencing range of 262–327 months' imprisonment.
Prior to his scheduled re-sentencing date of August 27, 2009, Lawrence filed a motion to continue the sentencing hearing “until October 2009” because “[o]n July 29, 2009, the ‘Crack Bill was voted out of the House Judiciary Committee and will amend the current law dramatically in a way which could effect the defendant herein.” Mot. for a Downward Departure or Variance (“Mot. D/V”) at 1.2 As described in his motion, H.R. 3245 proposed to “make the mandatory minimums for powder apply also to crack and ... eliminate the separate mandatory minimums for crack.” Id. The government opposed a continuance on the grounds that it was impossible to speculate when the bill might become law, if at all, and that Lawrence's “sentence was calculated based upon his status as a career offender, not with respect to any sentencing ratios regarding crack and powder cocaine or even with respect to the mandatory minimum sentences for such offenses.” Gov't Opp'n to Mot. to Cont. at 2. The district court agreed about the uncertainty of enactment and denied Lawrence's motion but rescheduled the re-sentencing because of a scheduling conflict.
When Lawrence appeared for re-sentencing on September 3, 2009, defense counsel argued that Lawrence's sentence should take account of the criticism of the crack/powder disparity. The district court, observing that the Sentencing Commission had lowered the ratio, “but it is not one to one,” Sent'g Tr., Sept. 3, 2009, at 14, responded:
Part of the reason that I went forward with the sentencing is my understanding from looking at the legislation, and frankly speaking to Judge Walton, who has been the one spearheading to some degree the [move to] try [ ] to get rid of the disparity, has indicated that the pending legislation certainly moves towards making the parity between crack and powder.
There is in there [the provision] about the mandatory minimums, but it doesn't touch the career offender in terms of ... across the board, whether it's crack cocaine or whatever.... [A]s I understand it, that's not what has been moving forward. It may eventually, but it hasn't at this point. So, it's the career offender ... that puts [Lawrence] in the additional categories, not really necessarily the disparity between the crack and the powder.
Sent'g Tr., Sept. 3, 2009, at 14–15. Defense counsel then acknowledged that the pending legislation, H.R. 3245, Id. at 15. Defense counsel accordingly urged the district court, particularly in view of the reversals on appeal, to exercise its discretion to “go outside of the guidelines” in re-sentencing Lawrence. Id.3 Re- sentencing was again continued because of confusion about a parole violation stated in the PSR that Lawrence challenged.
At the rescheduled re-sentencing on October 5, 2009, the district court found, adopting unchallenged findings in the PSR, that: (1) Lawrence was found guilty of unlawful distribution of five grams or more of cocaine base, for which the mandatory minimum was five years' imprisonment and the statutory maximum was forty years' imprisonment; (2) the base offense level of 26 was raised to 34 because he was a career offender; (3) his criminal history category would be IV, based on his two prior felonies (distribution of cocaine and of PCP) and having committed the present offense while on parole for earlier offenses, but was raised to category VI by his career offender status; and (4) the resulting Guidelines sentencing range was 262 to 327 months. Defense counsel argued for a variance in order to nullify the crack-powder disparity and to relieve Lawrence of the consequences of being classified as a career offender, suggesting that 92 to 115 months, the Guidelines range without the criminal history category, would meet the statutory goals of 18 U.S.C. § 3553. Counsel noted that Lawrence was guilty of distributing “a total of less than 30 grams, as I calculate it, of crack cocaine”; that while incarcerated he had completed “a number of educational programs”; and that his violation of parole in 2000 was not by being arrested for a new offense but by failing to report, failing to take a mandated drug test, and testing positive for marijuana. During allocution, Lawrence asked...
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...apply when lack of remorse used as factor in sentencing but would apply if failure to testify had been used as factor); U.S. v. Lawrence, 662 F.3d 551, 563 (D.C. Cir. 2011) (right did not apply when lack of remorse used as factor in denying defendant leniency at sentencing). The right does ......