United States v. May, 15-7912

• Decision Date: 25 April 2017
• Docket Number: No. 15-7912,15-7912
• Citation: 855 F.3d 271
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Tobias MAY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

855 F.3d 271

UNITED STATES of America, Plaintiff–Appellee,

v.David Tobias MAY, Defendant–Appellant.

No. 15-7912

United States Court of Appeals, Fourth Circuit.

Argued: January 26, 2017

Decided: April 25, 2017

ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. John P. Fishwick, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before GREGORY, Chief Judge, and DUNCAN and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion, in which Chief Judge Gregory and Judge Duncan joined.

FLOYD, Circuit Judge:

In mid-2009, David May pleaded guilty to various drug and firearm offenses, and was sentenced pursuant to a stipulated plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). In November 2014, the Sentencing Guidelines were amended, retroactively lowering the offense levels associated with two of the offenses to which May pleaded guilty. In February 2015, the district court, sua sponte, denied May a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), on the grounds that May's sentence was not based on the Guidelines. In September 2015, May filed a motion for reconsideration of the district court's sua sponte denial, which the district court denied two months later. May timely appealed the denial of his motion for reconsideration, challenging the district court's refusal to apply the amended Guidelines to his sentence. We agree with the district court's denial of relief, and we therefore affirm.

I.

In a nineteen-count indictment filed on May 14, 2008, David May was charged with various drug and firearms offenses by a grand jury in the Western District of Virginia. On May 4, 2009, May entered into a plea agreement with the government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).¹ May pleaded guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C) (Count 1); distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846(b)(1)(C) (Count 8); using and carrying a firearm during and in relation to, and possession of a firearm in furtherance of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 9); and possession of a firearm after having been convicted of a crime punishable by more than one year imprisonment and while being an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(1) and (3) (Count 13). J.A. 31–32. In exchange, the remaining fifteen counts from the indictment were dropped. May's plea agreement also included an appeal waiver.

Under a section titled "Sentencing Provisions" and a subsection titled "General Matters," the plea agreement stated that pursuant to Rule 11(c)(1)(C), the parties agreed to May's prison term. J.A. 33. The parties agreed to a prison term of 180 months on the drug counts (Counts 1 and 8), a concurrent term of 120 months on the felon in possession count (Count 13), and a consecutive term of 60 months on the § 924(c) count (Count 9). Id.

Immediately following the "General Matters" subsection, the plea agreement contains a subsection titled "Sentencing Guidelines." J.A. 34. In this subsection, the parties set forth their stipulations as to offense level calculations under the Sentencing Guidelines. The parties agreed to an offense level of 30 for the drug counts, which corresponded to "350 grams to 499.99 grams of methamphetamine" (Counts 1 and 8); an offense level of 16 for the felon in possession count (Count 13); and a total offense level of 30 for all the above-described counts (Counts 1, 8, and 13). Id. The parties also stated that the guideline range for the § 924(c) count (Count 9) was a term of 60 months imprisonment. Id.

The probation office then prepared a presentence report (PSR). The PSR relied on a total offense level of 30, as was stipulated, and a criminal history category of V, as was determined by the probation office, to conclude that "the advisory guideline range for imprisonment is 151 to 188 months." J.A. 93. The PSR noted, however, that "in the plea agreement, the defendant has pled to a total term of 240 months." Id.

On July 20, 2009, the district court accepted May's plea agreement and sentenced him to a total of 240 months: a term of 180 months on the drug counts (Counts 1 and 8), a concurrent term of 120 months on the felon in possession count (Count 13), and a consecutive term of 60 months on the § 924(c) count (Count 9). J.A. 44–46.

On November 1, 2014, Amendment 782 to the Guidelines—which was made retroactive by Amendment 788—went into effect. See U.S.S.G. Supp. to App. C, Amends. 782 & 788 (Nov. 1, 2014). Amendment 782 reduced by two the offense levels assigned to drug quantities listed in U.S.S.G. § 2D1.1, which governs Counts 1 and 8 in this case.

On February 25, 2015, the district court, sua sponte, denied May a sentence reduction under Amendment 782 pursuant to 18 U.S.C. § 3582(c)(2) (the " Section 3582(c)(2) Denial Order"). J.A. 51. The district court explained that because May's plea agreement neither called for May to be sentenced within a particular Guidelines sentencing range, nor clarified that his agreed-upon sentence was based on a Guidelines sentencing range applicable to the offense of conviction, May was ineligible for any reduction under Amendment 782. Id.

May claims that he was never properly notified of the Section 3582(c)(2) Denial Order. May had no counsel of record at the time to receive electronic notification of the entry of the order. May also denies ever receiving the order in the mail, and even the government concedes that there is no routine minute entry to confirm that the order was mailed. See Appellee's Supp. Br. at 9 n.3.

Lisa Lorish, an Assistant Federal Public Defender, later learned about May's case and the Section 3582(c)(2) Denial Order while conducting an internal review of cases where a drug reduction might apply. See Appellant's Supp. Br. at 9 n.2. On September 18, 2015, May, represented by Lorish, filed a motion for reconsideration of the Section 3582(c)(2) Denial Order. This motion argued that May's "plea agreement clearly ties the drug related sentence of 180 months to [his] drug guidelines," and that he therefore qualifies for § 3582(c)(2) relief. J.A. 53.

The government responded with a motion opposing any sentence reduction on the grounds that May's plea agreement did not expressly rely on the Guidelines. Nowhere in this motion did the government assert that the district court lacked authority to grant relief following a motion for reconsideration of a § 3582(c)(2) ruling.

On November 18, 2015, the district court issued an order denying May's motion for reconsideration. J.A. 64–67. The district court reiterated its conclusion that May was ineligible for § 3582(c)(2) relief because his plea agreement "did not stipulate to the range of imprisonment under the guidelines" and "did not stipulate to the Criminal History category applicable to [May]." J.A. 66–67.

On December 1, 2015, May's counsel appealed the denial of May's motion for reconsideration. On appeal, the parties initially briefed the issue of whether May's plea agreement was sufficiently based on the Guidelines to qualify him for § 3582(c)(2) relief. This Court then ordered and received supplemental briefing "addressing whether May's 18 U.S.C. § 3582 (2012) motion was successive and/or barred by United States v. Goodwyn , 596 F.3d 233, 234 (4th Cir. 2010)." Order, United States v. May , No. 15-7912 (4th Cir. 2016), ECF No. 39. At no point in its briefing did the government invoke May's appeal waiver, "and we will not sua sponte enforce it." United States v. Jones , 667 F.3d 477, 486 (4th Cir. 2012).

II.

Although we have previously prohibited 18 U.S.C. § 3582(c)(2) -based motions for reconsideration, United States v. Goodwyn , 596 F.3d 233, 234 (4th Cir. 2010), we understand this prohibition to be non-jurisdictional, and thus waived when the government failed to assert it below.

Section 3582(c)(2) provides:

The court may not modify a term of imprisonment once it has been imposed except that—

...

(2) 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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, 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.

The Supreme Court requires Congress to "clearly state[ ] that a threshold limitation on a statute's scope shall count as jurisdictional" before a court can treat the limitation as such. Arbaugh v. Y&H Corp. , 546 U.S. 500, 515–16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). But the prohibition on § 3582(c)(2) -based motions for reconsideration is not based on a limitation that Congress has clearly ranked as jurisdictional. Rather, it is implied from § 3582(c)(2)'s silence on a district court's authority to grant motions for reconsideration, coupled with sentence finality interests and "the clear intent of § 3582... to constrain postjudgment sentence modifications." Goodwyn , 596 F.3d at 235–36. We therefore conclude that the implied prohibition on § 3582(c)(2) -based motions for reconsideration, as recognized in Goodwyn , is non-jurisdictional.²

Our conclusion comports with the decisions of at least four of our sister circuits. See United States v. Anderson , 772 F.3d 662, 666–67 (11th Cir. 2014) ; United States v. Beard , 745 F.3d 288, 291–92 (7th Cir. 2014) ; Trujillo , 713 F.3d...