United States v. McClain

• Decision Date: 17 August 2012
• Docket Number: No. 10–3862.,10–3862.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Vedo McCLAIN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

691 F.3d 774

UNITED STATES of America, Plaintiff–Appellee,

v.Vedo McCLAIN, Defendant–Appellant.

No. 10–3862.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 10, 2012.

Decided and Filed: Aug. 17, 2012.

ARGUED: Melissa M. Salinas, Office of the Federal Public Defender, Toledo, Ohio, for Appellant. Chelsea S. Rice, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF: Melissa M. Salinas, Donna M. Grill, Office of the Federal Public Defender, Toledo, Ohio, for Appellant. Chelsea S. Rice, Edward F. Feran, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: MERRITT and MOORE, Circuit Judges; and MAYS, District Judge.^*

MAYS, D.J., delivered the opinion of the court in which MOORE, J., joined. MERRITT, J. (pp. 780–82), delivered a separate dissenting opinion.

OPINION

MAYS, District Judge.

Defendant–Appellant Vedo McClain (“McClain”) has moved for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). The district court concluded that McClain was ineligible for relief and denied his motion. For the following reasons, we AFFIRM.

I.

On three separate occasions in February and May 2006, a cooperating source under the supervision of the Cleveland Police Department purchased cocaine base (“crack”) from McClain. A grand jury indicted him on three counts of cocaine distribution in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and (b)(1)(B). On August 2, 2006, McClain pled guilty to all counts.

McClain entered into a Rule 11(c)(1)(B) plea agreement with the understanding that its recommendations were not binding on the district court. He agreed to be responsible for at least 150 but not more than 500 grams of crack. That amount corresponded to a base offense level of 34 under § 2D1.1 of the United States Sentencing Guidelines (“U.S.S.G.”). At sentencing on October 12, 2006, the district court granted a three-level reduction for acceptance of responsibility. McClain's total offense level was 31. His criminal history category was VI. His guidelines range would have been 188 to 235 months. Because of McClain's prior felony drug conviction, however, there was a mandatory minimum sentence of 240 months on Counts 1 and 2 and 120 months on Count 3. Thus, McClain's guidelines range became 240 months.

The United States of America (the “Government”) filed a motion for substantial assistance under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, which permitted the district court to impose a sentence below 240 months. The district court granted a two-level departure, which it applied to McClain's original total offense level to reach a new total offense level of 29. With a criminal history category VI, this produced a post-departure guidelines range of 151 to 188 months. The district court imposed a within-guidelines sentence of 151 months, noting that, “although there's some things [ ] to recommend that [the sentence] should be higher, but I think in this case the 151 months is ... an extremely long sentence itself.”

On November 1, 2007, Amendment 706 to the sentencing guidelines reduced the base offense level for most crack offenses by two levels. U.S.S.G. Supp. to App. C, amend. 706 (2011). On March 3, 2008, Amendment 713 made Amendment 706 retroactive. Id. 713 (“The Commission has determined that Amendment 706 ... should be applied retroactively.”). McClain moved for a modification of his sentence under 18 U.S.C. § 3582(c)(2), relying on Amendments 706 and 713. Eighteen U.S.C. § 3582(c)(2) permits district courts to reduce sentences based on guidelines ranges that have been lowered by the United States Sentencing Commission. The district court denied McClain's motion, reasoning that he was ineligible for § 3582 relief because his sentence was based on the mandatory minimum, not a sentencing range that had since been lowered. McClain timely appealed.

II.

We ordinarily review a district court's denial of a § 3582 motion for abuse of discretion. See United States v. Moore, 582 F.3d 641, 644 (6th Cir.2009). “Where, as here, the district court does not simply decline to use its authority under § 3582” but concludes “that a defendant is ineligible for a sentence reduction,” the district court's conclusion is a question of law that is reviewed de novo. United States v. Johnson, 569 F.3d 619, 623 (6th Cir.2009); see also United States v. Hameed, 614 F.3d 259, 262 (6th Cir.2010); United States v. Curry, 606 F.3d 323, 327 (6th Cir.2010); United States v. Stiff, 407 Fed.Appx. 896, 898 (6th Cir.2011) (unpublished opinion).

Generally, courts do not have the authority to change or modify sentences they have imposed unless that authority is expressly granted by statute. Curry, 606 F.3d at 326;see also United States v. Pembrook, 609 F.3d 381, 383 (6th Cir.2010). Federal law creates an “exception to this general rule when the sentencing judge relied on the sentencing guidelines and those guidelines later are made more lenient.” Hameed, 614 F.3d at 262. When that happens, “a court ‘may’ reduce a prison term ‘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.’ ” Curry, 606 F.3d at 326–27 (quoting 18 U.S.C. § 3582(c)(2)).

Amendments 706 and 713 lowered the guidelines ranges for quantities of crack in U.S.S.G. § 2D1.1. See U.S.S.G. Supp. to App. C, amends. 706, 713. To be eligible for a sentence reduction under these amendments, McClain must show: (1) that his 151–month prison sentence was “based on” a sentencing range that has been lowered by Amendments 706 and 713, and (2) that a reduction in sentence would be “consistent with applicable policy statements issued by the Sentencing Commission.” Hameed, 614 F.3d at 262.

A.

When faced with motions under § 3582(c)(2), district courts must engage in a two-part inquiry. See Hameed, 614 F.3d at 262. First, they must address whether the defendant's sentence was “based on” a sentencing range that was subsequently lowered. Id. Second, they must decide whether a reduction would be “consistent with applicable statements issued by the Sentencing Commission.” Id. (quoting 18 U.S.C. § 3582(c)(2)). Textually, § 3582(c)(2) requires this two-part inquiry in each instance where a defendant seeks a sentence reduction under § 3582(c)(2). See id. at 266 n. 3 (rejecting the proposition that “based on” has different meanings depending on the context in which motions are brought).

In this case, the district court stated that:

McClain is ineligible for a sentence reduction because he was subject to a statutory mandatory minimum (240) months greater than the low end of the otherwise applicable guidelines range (151–188 months.) (From that mandatory minimum, the Court granted a downward departure for substantial assistance under U.S.S.G. § 5K1.1.) When a defendant is subject to a statutory mandatory minimum sentence above the low end of the otherwise applicable guidelines range, he may not receive § 3582(c)(2) relief from the crack-cocaine amendment to the guidelines.

McClain disputes the district court's conclusion, contending that his sentence was based on the advisory guidelines, not the mandatory minimum. He argues that his guidelines range was 262–327 months, calculated using a base offense level of 34 and a criminal history category VI, which exceeded the mandatory minimum. Alternatively, he argues that the district court's initial calculation of his sentencing range under the crack guidelines makes him eligible for a reduction under Freeman.

Whether a sentence is “based on” the mandatory minimum or the advisory guidelines turns on “ ‘what the district court actually said and did at the original sentencing.’ ” ¹Hameed, 614 F.3d at 264 (quoting United States v. Hargrove, 628 F.Supp.2d 241, 244 (D.Mass.2009)). That is a fact-driven, common-sense inquiry about whether a sentence is “derived exclusively” from a particular sentencing scheme. See id. at 265. The inquiry need not identify explicit statements that favor one sentencing scheme over another; it may be “sufficiently clear that a district court used the crack guidelines to select a final sentence even though it did not say so.” Id. at 264 n. 2. Instead, we evaluate the particular circumstances of each defendant, including the parties' conduct, to determine whether a particular sentencing calculation was used. See id. (“[F]or example, when an attorney argued for an approach and the court acted in accordance with it.”).

At sentencing, the district court calculated McClain's base and total offense levels from the quantity of crack tied to his offense level under § 2D1.1. (Sent. Tr. at 3.) The guidelines range produced (188–235 months) was less than the mandatory minimum of 240 months, meaning that the mandatory minimum became his sentencing range. Nevertheless, “it cannot be said here that the district judge applied a sentencing range ‘derived exclusively’ from a mandatory minimum.” Hameed, at 264–65 (quoting United States v. Alexander, 543 F.3d 819, 825 (6th Cir.2008)). The district court here, like the district court in Hameed, returned to a post-departure guidelines range calculated under § 2D1.1 after granting the Government's substantial assistance motion. Compare id. at 264,with Sent. Tr. at 13, 16–17. The district court sentenced McClain within this post-departure range, which supports the conclusion that “the district judge actually relied on the crack guidelines under § 2D1.1 in fashioning a sentence.” See Hameed, 614 F.3d at 265. If Amendment 706 were applied to McClain and he received an additional two-level reduction, the resulting guidelines range would be 130 to 162 months. ² He would be eligible for up to twenty-one fewer months in prison. Therefore, this is not a case in which “ ‘Amendment 706 ... has no effect on the ultimate sentencing range imposed on [McClain].’ ” Id. at 265 (quoting United States v. Gillis, 592 F.3d 696, 699 (6th Cir.2009)...