United States v. Lightfoot

• Decision Date: 29 July 2013
• Docket Number: No. 11–11232.,11–11232.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony Wayne LIGHTFOOT, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

724 F.3d 593

UNITED STATES of America, Plaintiff–Appellee,

v.Anthony Wayne LIGHTFOOT, Jr., Defendant–Appellant.

No. 11–11232.

United States Court of Appeals,Fifth Circuit.

July 29, 2013.

Delonia Anita Watson (argued), Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX, for Plaintiff–Appellee.

Jason Douglas Hawkins (argued), Federal Public Defender, Federal Public Defender's Office, Christopher Allen Curtis, Assistant Federal Public Defender Dallas, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before DeMOSS, OWEN, and HAYNES, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Anthony Wayne Lightfoot, Jr., appeals the judgment of the district court reducing his original sentence pursuant to Federal Rule of Criminal Procedure 35(b) after he provided substantial assistance to the Government. Lightfoot contends that the district court erred by failing to consider the factors set forth in 18 U.S.C. § 3553(a). We affirm.

I

Lightfoot pleaded guilty to possession with intent to distribute five grams or more of a mixture or substance containing a detectable amount of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). At the original sentencing hearing, the district court sentenced Lightfoot to a 310–month term of imprisonment. At that hearing, the district court considered assistance Lightfoot had already provided to the Government and explained that, if not for Lightfoot's assistance, the district court would have been inclined to impose a prison term of 445 to 450 months. The court also stated on the record that it had considered the factors set forth in § 3553(a) in arriving at the length of Lightfoot's sentence. This court later dismissed Lightfoot's direct appeal as frivolous.

Three years later, the Government filed a motion under Federal Rule of Criminal Procedure 35(b)(2) to reduce Lightfoot's sentence based on substantial assistance he had provided the Government in other cases following his original sentencing. After reviewing the evidence of Lightfoot's aid to the Government, the district court determined that Lightfoot was not entitled to a significant reduction of his sentence because the information he provided was duplicative of that provided by other witnesses and the possibility of Lightfoot's testifying at a future trial had been taken into account at his original sentencing. Nevertheless, the district court concluded that it would “give Lightfoot the benefit of the doubt by ordering a further reduction of his sentence of 24 months.” The court then reduced Lightfoot's term of imprisonment from 310 months to 286 months. This appeal followed.

II

As an initial matter, we must address our jurisdiction. The Government contends that the only possible basis for jurisdiction of Lightfoot's appeal of his modified sentence is 18 U.S.C. § 3742(a)(1), which provides that a defendant may appeal a final sentence if it “was imposed in violation of law.” ¹ The Government argues that the district court was not required to consider the § 3553(a) factors when it modified the sentence under Rule 35(b) and therefore that the sentence modification was not imposed in violation of law.

The Government's argument is misplaced. Lightfoot appears to contend that the district court mistakenly believed that it did not have the legal authority to consider the § 3553(a) factors. If the district court's “sentencing decision rested on a mistaken belief that it lacked the legal power to” ² consider the § 3553(a) factors and § 3553(a) and 18 U.S.C. § 3582 required consideration of those factors, then the provision in § 3742(a) regarding a sentence that “was imposed in violation of law” would apply.³

Lightfoot seems to contend, alternatively, that the district court thought it had the authority to consider the § 3553(a) factors but chose not, or simply failed, to apply them. Even were we ultimately to conclude that the district court was prohibited from considering the § 3553(a) factors and therefore that Lightfoot's sentence was not “imposed in violation of law,” the Supreme Court has explained in a context similar to the present case that we “always [have] jurisdiction to determine [our] own jurisdiction.” ⁴ To make the determination as to whether Lightfoot's sentence was “imposed in violation of law,” we must address the merits.⁵ Our conclusion that we have jurisdiction is consistent with decisions of other circuit courts. ⁶

Because we conclude that we have jurisdiction of this appeal, we do not consider Lightfoot's contention that we would have jurisdiction under 28 U.S.C. § 1291, which confers jurisdiction over final decisions of district courts.

III

Lightfoot does not explicitly articulate the standard of review that should govern his appeal, but he argues that a sentence imposed without adequate explanation cannot be deemed reasonable on appeal, his sentence is invalid because there was no on-the-record reference to the factors contained in § 3553(a), and his sentence must be deemed unreasonable because the sentence reduction was not supported by a satisfactory statement of reasons.

The Government maintains that our review is for plain error. Although the district court did not conduct a hearing on the Government's Rule 35(b) motion, the district court explicitly invited Lightfoot to “file a response in support of [the Government's Rule 35(b) ] motion, providing to the court any information he has that would bear on the request made by such motion.” Lightfoot made no arguments regarding the § 3553(a) factors in his response. Nor did Lightfoot object or seek reconsideration after the district court modified his sentence. Though afforded an opportunity to present his position to the district court before it ruled on the Rule 35(b) motion, Lightfoot did not call to the district court's attention any argument that it was required or at least permitted to consider § 3553(a) factors. Accordingly, the burden arguably is on Lightfoot to demonstrate that the district court erred and that the error was plain.⁷ However, as we explain below, the district did not commit error, plain or otherwise, and we therefore need not determine if plain error review is applicable in this case. We will assume that it is not.

IV

A sentence my be modified after its initial imposition in some circumstances, one of which is outlined in § 3582(c)(1)(B).⁸ It provides that “the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” ⁹ Under Rule 35(b) a court may, upon motion by the Government, “reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.” ¹⁰ In the present case, the Government moved for a sentence reduction three years after the district court had sentenced Lightfoot to 310 months of imprisonment.

Lightfoot contends that the district court was required by § 3553(a) to consider the factors set forth in that section not only when his original sentence was imposed but also when the district court considered the Government's subsequent motion for a reduction in sentence. The proper construction of the sentencing statutes is a question of law that we consider de novo.¹¹

Lightfoot rests his positions entirely on the text of § 3553(a). He has not responded to the Government's arguments pertaining to § 3582. We find no support in either § 3553 or § 3582 for Lightfoot's position that a district court is required to consider the § 3553(a) factors in ruling on a Rule 35(b) request for sentence reduction. To the contrary, these provisions lead to the conclusion that Congress has not required district courts to consider the § 3553(a) factors when reducing a sentence under Rule 35(b).

It is abundantly clear when § 3582 is considered that the § 3553(a) factors must be applied when imposing a sentence but when modifying a sentence that has already been imposed, their application is only required in statutorily enumerated circumstances. Subsection (a) of § 3582 sets forth the factors to be considered in determining, as an initial matter, whether to impose a term of imprisonment and, if imprisonment is to be imposed, the length of that term.¹² Subsection (c) then states that a “court may not modify a term of imprisonment once it has been imposed except ” in limited circumstances.¹³Section 3582 draws a distinction between the imposition of a sentence and the modification of an imposed term of imprisonment. This court has explained that there are procedural differences between original sentencing proceedings and modification proceedings.¹⁴

Subsection (c) of § 3582 specifies when the § 3553(a) factors are to be considered in modifying a sentence and, by implication, when they are not. ¹⁵ A modification under Rule 35(c) is not among the instances in which consideration of the § 3553(a) factors is expressly required by § 3582(c).¹⁶Subsection (c) of § 3582 describes only three circumstances in which a sentence may be modified. One is when the Director of the Bureau of Prisons moves for a reduction, and there are either extraordinary and compelling reasons that warrant such a reduction or the defendant is at least 70 years of age and other prescribed conditions are met.¹⁷ In such a situation, the court is directed to consider the § 3553(a) factors. ¹⁸ Another circumstance in which a court may modify a sentence is when a sentence is based on a sentencing range that has subsequently been lowered by the Sentencing Commission.¹⁹ Courts are directed to consider the § 3553(a) factors “to the extent that they are applicable.” ²⁰ The third circumstance set forth in § 3582(c) that permits sentence modification, § 3582(c)(1)(B), under which Lightfoot's reduction falls, provides for modification “to the extent otherwise expressly permitted by statute or by Rule 35 of the...