United States v. Tellis
| Decision Date | 18 April 2014 |
| Docket Number | No. 12–12596.,12–12596. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Emory Lee TELLIS, a.k.a. Emmit, a.k.a. Fat Head, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Karin Bethany Hoppmann, Yvette Rhodes, John P. Moran, Robert E. O'Neill, U.S. Attorney's Office, Tampa, FL, Vincent A. Citro, Peggy Morris Ronca, Tanya Davis Wilson, U.S. Attorney's Office, Orlando, FL, for Plaintiff–Appellee.
Rosemary Cakmis, Tracy N. Dacruz, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL, Megan Saillant, Law Offices of Megan Saillant, Daytona Beach, FL, Adeel Bashir, Federal Public Defender's Office, Tampa, FL, for Defendant–Appellant.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:01–cr–00089–JA–GJK–2.
Before MARTIN and HILL, Circuit
Judges, and FULLER,* District Judge.
Emory Lee Mr. Tellis is currently serving a 188–month sentence after pleading guilty to conspiracy to sell crack cocaine. In this appeal he challenges the district court's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on Amendment 750 to the United States Sentencing Guidelines (USSG). After a careful review of the parties' briefs and the relevant caselaw, and with the benefit of oral argument, we affirm.
In June 2001, Mr. Tellis was indicted for conspiracy to sell crack cocaine in violation of 21 U.S.C. § 841(a)(1). He pleaded guilty on October 2, 2001.
Mr. Tellis's Presentence Investigation Report (PSR) was completed in January 2002. The PSR stated that he was a career offender as defined in USSG § 4B1.1. Mr. Tellis did not object to the PSR's designation of him as a career offender. His offense level was 37 under the career offender table in USSG § 4B1.1.1 Because of the amount of crack involved, Mr. Tellis's base offense level was 38 under the drug quantity table in USSG § 2D1.1. The offense level for a career offender is the higher value calculated using U.S.S.G. §§ 2D1.1 and 4B1.1. SeeUSSG § 4B1.1(b). Thus, the PSR stated that “since the adjusted offense level is 38, career offender status does not impact the total offense level.”
Based upon an offense level of 38, the PSR calculated the guideline imprisonment range as 360 months to Life. Before sentencing, the United States moved pursuant to USSG § 5K1.1 for a three-level reduction based on Mr. Tellis's “substantial assistance.” If the district court had adopted the offense level of 38 and applied the three-level reduction for substantial assistance, Mr. Tellis's offense level would have been 35 and his guideline range would have been 292 to 365 months. With an additional three-level reduction for acceptance of responsibility, his offense level would have been 32 and his guideline range 210 to 262 months.
Mr. Tellis appeared for sentencing in the district court on January 15, 2002. The sentencing hearing was not transcribed, and the court reporter's notes have been destroyed. The parties here agree that Mr. Tellis received a three-level reduction pursuant to USSG § 3E1.1 for accepting responsibility. We also know that the motion to recognize Mr. Tellis's substantial assistance was granted and based on that, he received an additional three-level reduction. Ultimately Mr. Tellis was sentenced to 210–months imprisonment, which was the low end of the range for an offense level of 32—a base level of 38 under USSG § 2D1.1 minus six points for the substantial assistance and acceptance of responsibility reductions.
On November 1, 2007, the Sentencing Commission promulgated Amendment 706. USSG App. C, Amend. 706 (2007). “The effect of Amendment 706 is to provide a two-level reduction in base offense levels for crack cocaine offenses.” United States v. Moore, 541 F.3d 1323, 1325 (11th Cir.2008). On March 3, 2008, the Commission made Amendment 706 retroactively applicable. USSG App C., Amend. 713 (2008). Therefore, following the adoption of these Amendments Mr. Tellis's base offense level under USSG § 2D1.1 was lowered from 38 to 36 given the amount of crack involved in this case.
Also on March 3, 2008, the Commission revised its policy statement in § 1B1.10. It said that a defendant is not eligible for a sentence reduction where an amendment “does not have the effect of lowering [his] applicable guideline range because of the operation of another guideline or statutory provision.” USSG § 1B1.10, cmt. 1(A). To receive sentencing relief under § 3582(c)(2), the Amendment relied upon must lower the “applicable guideline range.” Id. The Commission defined the applicable guideline range as “the guideline range that corresponds to the offense level and criminal history category determined pursuant to [USSG § ] 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” Id.
In May 2008, the district court ordered a supplemental PSR to establish whether, in light of Amendment 706 and USSG § 1B1.10, Mr. Tellis's original sentence should be reduced. One week later, Mr. Tellis moved for a modification of his sentence pursuant to Amendment 706.
In its response to the district court order, the Probation Office stated that the base offense level for Mr. Tellis under Amendment 706 in light of the amount of drugs involved would be 36. “However,” it continued, “pursuant to the career offender provisions of USSG § 4B1.1, the offense level is enhanced to 37, and with a 3 level reduction for acceptance of responsibility, the total offense level becomes 34.” Applying the three-level reduction pursuant to substantial assistance as before would then result in an offense level of 31, which has an imprisonment range of 188 to 235 months. Thus, to reach the offense level of 31, the Probation Office relied on the career offender offense level in USSG § 4B1.1 as a starting point.
On July 18, 2008, Mr. Tellis and the United States filed a joint stipulation. They noted that the supplemental PSR “correctly states that, pursuant to 18 U.S.C. § 3582(c)(2), the defendant is eligible for a reduction in his previously-imposed term of imprisonment.” It added that the PSR is also correct that:
pursuant to USSG § 1B1.10, the retroactive application of Amendments 706 and 711 ... makes the defendant eligible for a reduction in his sentence to a total term of imprisonment of 188 months. Therefore, pursuant to 18 U.S.C. § 3582(c)(2), the Court may adjust the defendant's previously-imposed sentence by reducing it by up to 22 months.
On August 19, 2008, the district court reduced Mr. Tellis's sentence to a term of 188 months.
In November 2011, the Commission promulgated Amendment 750. This Amendment “revised the crack cocaine quantity tables in U.S.S.G. § 2D1.1 to conform to the Fair Sentencing Act of 2010.” United States v. Glover, 686 F.3d 1203, 1204 (11th Cir.2012). Later, Amendment 750 was also made retroactive, allowing sentence reductions under 18 U.S.C. § 3582(c)(2). USSG App. C, Amend. 759. Base offense levels were lowered for certain quantities of crack cocaine offenses, and following the adoption of Amendment 750 Mr. Tellis's base offense level under USSG § 2D1.1 was 34 instead of 38 originally, or 36 after Amendment 706. USSG App. C, Amend. 759 (2011); USSG § 2D1.1(c)(3).
On November 10, 2011, Mr. Tellis moved to reduce his sentence pursuant to Amendment 750. The district court requested another supplemental PSR. This time Probation stated that Mr. Tellis was “not eligible for a sentence reduction because he was sentenced as a career offender.” The government opposed Mr. Tellis's motion, arguing that:
[w]hen the Court applied Amendment 706 in 2008, the offense level under the career offender guideline became the higher of the two and the Court reduced the defendant's sentence in accordance with the new range as dictated by the career offender guideline.... When the reduction under Amendment 750 is applied and the amended base offense level is substituted for the original base offense level under the drug quantity table, the career offender level remains the higher of the two and, therefore, the guidelines range remains the same as in 2008.
Mr. Tellis maintained “that the career offender guideline was not applied at his original sentencing, and thus cannot be applied in these proceedings.”
The district court denied Mr. Tellis's motion to reduce under Amendment 750, stating: “Defendant is not, however, eligible for further reduction because his career offender guideline range is now greater than the drug offense level.” Mr. Tellis timely appealed.
After a person is sentenced, a district court may modify their sentence in only limited situations. One of those situations is set forth in 18 U.S.C. § 3582(c)(2):
[I]n 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 ... 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.
This Court reviews de novo a district court's conclusions about the scope of its legal authority under 18 U.S.C. § 3582(c)(2). United States v. Lawson, 686 F.3d 1317, 1319 (11th Cir.2012), cert. denied––– U.S. ––––, 133 S.Ct. 568, 184 L.Ed.2d 371 (2012). We review the factual findings underlying the district court's legal conclusions for clear error. United States v. Davis, 587 F.3d 1300, 1303 (11th Cir.2009). A defendant bears the burden of demonstrating that a retroactive Amendment has actually lowered his guideline range. United States v. Hamilton, 715 F.3d 328, 337 (11th Cir.2013).
Although Mr. Tellis argues that the record does not conclusively...
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