United States v. Palmer, 15-3006

• Decision Date: 14 April 2017
• Docket Number: No. 15-3006,15-3006
• Citation: 854 F.3d 39
• Parties: UNITED STATES of America, Appellee v. Michael PALMER, also known as Tony, also known as Knot, also known as James, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

854 F.3d 39

UNITED STATES of America, Appellee

v.Michael PALMER, also known as Tony, also known as Knot, also known as James, Appellant

No. 15-3006

United States Court of Appeals, District of Columbia Circuit.

Argued November 18, 2016

Decided April 14, 2017

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: Rogers, Brown and Griffith, Circuit Judges.

Concurring opinion filed by Circuit Judge Brown.

Rogers, Circuit Judge:

This appeal challenges the amended judgment entered by the district court following the partial grant of appellant's motion pursuant to 28 U.S.C. § 2255. Section 2255(b) provides that upon granting such a motion, the district court shall "vacate and set ... aside" the challenged judgment and either release the prisoner, resentence him, grant a new trial, or correct the challenged sentence. Appellant seeks to gain the benefit of the more lenient sentencing penalties under the Fair Sentencing Act of 2010 even though he was sentenced upon conviction at trial before that Act was effective and the Supreme Court has limited its retroactive effect. See Dorsey v. United States , 567 U.S. 260, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012).

The court need not decide today whether the Fair Sentencing Act applies to a resentencing upon a successful collateral attack pursuant to Section 2255. The district court left intact appellant's original trial sentence in 1989 except to apply intervening changes in the law on the merger of offenses. This limited revision to an otherwise final judgment was not a reevaluation of the appropriateness of appellant's original sentence. As a Section 2255"correct [ion]," and not a "resentencing" at which the government has acknowledged the more lenient penalties under the Fair Sentencing Act would apply, this entitled appellant to no relief under the Act. Accordingly, because appellant's due process challenge to his continuing criminal enterprise ("CCE") conviction also affords no relief, we affirm.

I.

On direct appeal, the court affirmed appellant's convictions of conspiracy and related offenses involving presiding over the large-scale distribution and sale of unlawful drugs in Washington, D.C., in the late 1980s. United States v. Harris, et al. , 959 F.2d 246 (D.C. Cir.), cert. denied 506 U.S. 933, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992). Appellant thereafter filed a series of motions collaterally attacking his convictions. In 2012, he filed a motion pursuant to Section 2255 that consolidated twelve challenges to his convictions. As relevant, appellant argued that (1) his CCE conviction and sentence should be vacated pursuant to Rutledge v. United States , 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), which held that conspiracy under 21 U.S.C. § 846 is a lesser included offense of CCE, and (2) four of his five 18 U.S.C. § 924(c) convictions must be vacated under United States v. Anderson , 59 F.3d 1323, 1334 (D.C. Cir. 1995), which held that a defendant may only be charged with one violation of Section 924(c) in relation to a single predicate crime. Appellant also sought a new sentencing hearing at which, he argued, the court should apply the updated Sentencing Guidelines and statutory changes reducing the disparity between crack and powder cocaine offenses to his remaining convictions. The government agreed the Section 924(c) convictions merged and that the conspiracy and CCE convictions cannot both stand, but argued that appellant's conviction for the lesser included offense of conspiracy should be vacated instead of his CCE conviction.

The district court granted appellant's Section 2255 motion in part. United States v. Palmer , 902 F.Supp.2d 1, 4 (D.D.C. 2012). It vacated four of his Section 924(c) convictions and his conspiracy conviction and the accompanying sentences. The district court interpreted Rutledge to leave to "the sound discretion" of the district court whether to dismiss the lesser included offense (here, conspiracy), id. at 11, and decided to "not depart from standard practice" under which the conspiracy conviction, rather than the CCE conviction, would be vacated, id . at 12. It acknowledged that the choice "is likely to have more concrete effects on [appellant's] actual sentence than cases in which the two sentences were identical," id . at 12 ; appellant would be eligible for parole if his CCE conviction, for which he was sentenced to life without possibility of parole, were vacated.

Appellant subsequently filed a motion for issuance of an updated judgment to reflect the district court's ruling on his Section 2255 motion and a special assessment amount limited to the non-merged convictions. On January 5, 2015, the district court entered an amended judgment, eliminating the vacated convictions and excess assessments while leaving the remaining convictions and sentences as originally imposed in 1989 upon his convictions by a jury. See chart, below.¹

II.

On appeal, appellant contends that the district court erred by not applying the Fair Sentencing Act in entering the amended judgment. The question whether the district court erred in failing to apply the Fair Sentencing Act presents a question of law, and our review is de novo . See United States v. Cook , 594 F.3d 883, 886 (D.C. Cir. 2010). The government's suggestion that our review of appellant's sentencing challenge should be for plain error is not well taken. See Appellee Br. 21 n.9. In seeking relief pursuant to Section 2255, appellant argued that the district court should apply "the new guidelines and statutory changes that alter the [crack to powder cocaine] ratio and penalties[.]" Mot. to Vacate at 52 (Mar. 20, 2012). Although appellant did not repeat his statutory argument in seeking an updated judgment, his new motion merely sought a ministerial revision of the judgment, a procedural action authorized by Federal Rule of Civil Procedure 58(d). See Perry v. Sheet Metal Workers' Local No. 73 Pension Fund , 585 F.3d 358, 362 (7th Cir. 2009) ; cf. United States v. Johnson , 254 F.3d 279, 283-85 (D.C. Cir. 2001). As such, appellant's new motion neither forfeited nor waived his statutory argument; quite the contrary, he was seeking a judgment to reflect the district court's partial grant of his Section 2255 motion.

In 1989, when appellant was sentenced following his convictions at trial, the U.S. Sentencing Guidelines were mandatory. See United States v. Booker , 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Those Guidelines reflected a 100:1 sentencing disparity for crack and powder cocaine offenses that was tied to the mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)-(C), see Dorsey , 132 S.Ct. at 2327, and also incorporated into the mandatory life sentences for CCE principals involved with large quantities of unlawful drugs, Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207, 3207-15, § 1253(2) (1986). On August 3, 2010, Congress enacted the Fair Sentencing Act, which reduced the 100:1 statutory disparity to 18:1 and directed the Sentencing Commission to issue updated guidelines within ninety days. Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372, 2372, 2374, §§ 2, 8 (2010); see United States v. Abney , 812 F.3d 1079, 1084 (D.C. Cir. 2016).

In Dorsey , the Supreme Court held that the more lenient mandatory minimum penalties of the Fair Sentencing Act applied to offenders who committed a crack cocaine offense before August 3, 2010, but were not sentenced until after that date. 132 S.Ct. at 2326. Sentencing courts were confronted with two statutes that were in tension: a general federal saving statute provided that courts should apply the sentence in effect at the time the offense occurred unless Congress "expressly provide[s]" that a later statute should be used, 1 U.S.C. § 109, and the Sentencing Reform Act of 1984 provided that courts should apply the Sentencing Guidelines "in effect on the date the defendant is sentenced," 18 U.S.C. § 3553(a)(4)(A)(ii). See Dorsey , 132 S.Ct. at 2330-31. The Court concluded that Congress "clearly indicated" this tension should be reconciled in favor of applying the Fair Sentencing Act to pre-Act offenders who were sentenced after the Act took effect. Id. at 2326. Relying "primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing," id . the Court's analysis of the timing issue considered six factors, id . at 2331.² The Court acknowledged that its approach would create disparities based on when a pre-Act offender is sentenced, but observed that "line-drawing ... will exist whenever Congress enacts a new law changing sentences (unless Congress intends re-opening sentencing proceedings concluded prior to a new law's effective date)." Id. at 2335.

This court has held on the direct appeal from a conviction that the Fair Sentencing Act is not retroactive to sentences imposed prior to its enactment. In United States v. Bigesby , 685 F.3d 1060 (D.C. Cir. 2012), the court concluded that "Congress's desire to have the [Fair Sentencing Act] implemented quickly," by issuance of emergency amendments to the Sentencing Guidelines, "in no way suggests that it also intended to have the Act apply retroactively to defendants sentenced before it was passed." Id. at 1066 (quoting United States v. Bullard , 645 F.3d 237, 248 (4th Cir. 2011) ). Congress had a "rational basis for limiting the [Act's] retroactive effect—its 'interest in the finality of sentences.' " Id . (quoting Johnson v. United States , 544 U.S. 295, 309, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005) ). In United States v. Fields , 699 F.3d 518 (D.C. Cir. 2012), the court viewed Bigesby as...