USA v. Hameed

• Decision Date: 26 July 2010
• Docket Number: No. 09-3259.,09-3259.
• Citation: 614 F.3d 259
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Talif HAMEED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

614 F.3d 259

UNITED STATES of America, Plaintiff-Appellee,

v.Talif HAMEED, Defendant-Appellant.

No. 09-3259.

United States Court of Appeals,Sixth Circuit.

July 26, 2010.

ON BRIEF: Donna M. Grill, Office of the Federal Public Defender, Toledo, Ohio, for Appellant. Bernard A. Smith, Assistant United States Attorney, Akron, Ohio, for Appellee.

Before: BATCHELDER, Chief Judge; MOORE and COLE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, C.J. (pp. 269-72), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Talif Hameed pleaded guilty to one count of conspiracy to possess with intent to distribute crack cocaine and one count of being a felon in possession of a firearm. Under § 2D1.1 of the U.S. Sentencing Guidelines (“U.S.S.G.”), which lists the base offense levels corresponding to the quantity of drugs attributable to a defendant, Hameed's sentencing range would have been 78 to 97 months of imprisonment. Hameed also faced a statutory mandatory minimum of ten years, but the government filed substantial-assistance motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, allowing the district court to impose a sentence below the mandatory minimum. After granting these motions, the district court resorted to the guideline range applicable under § 2D1.1, granted a one-level departure therefrom, and sentenced Hameed to 70 months of imprisonment. Following two guidelines amendments that reduced advisory sentences for most crack offenses, Hameed moved for a reduction of his sentence under 18 U.S.C. § 3582(c)(2). The district court concluded that Hameed was ineligible for relief and denied the motion.

As explained below, we agree. A defendant is not eligible for a reduction of sentence under § 3582(c)(2) unless (1) his sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” § 3582(c)(2), and (2) the amendment on which he relies “ha[s] the effect of lowering the defendant's applicable guideline range,” U.S.S.G § 1B1.10(a)(2)(B). See United States v. Pembrook, 609 F.3d 381, 383-84 (6th Cir.2010) (setting forth these two requirements). Although we believe that Hameed's sentence ultimately was “based on” a drug-quantity guideline range that has since been lowered, we conclude that that guideline range was not “applicable” because it was not a proper basis for the substantial-assistance departure he received. Accordingly, we AFFIRM.

I. BACKGROUND

Hameed and four other men sold crack out of two residences in Warren, Ohio from December 2003 through June 2004. A grand jury indicted Hameed on one count of conspiracy to possess with intent to distribute and to distribute crack cocaine, three counts of crack distribution based on separate $20 sales, two counts of possession with intent to distribute crack, and one count of being a felon in possession of a firearm. Pursuant to a nonbinding plea agreement, Hameed pleaded guilty to the conspiracy and firearm counts, and the government dismissed the other charges.

In the plea agreement, Hameed agreed to be held responsible for between twenty and thirty-five grams of crack. Under the then-applicable version of U.S.S.G. § 2D1.1-which we shall refer to as the “crack guidelines”-that amount of crack resulted in a base offense level of 28. A two-level enhancement for the firearm and a three-level reduction for acceptance of responsibility lowered Hameed's total offense level to 27. Based on a criminal-history category of II, his guideline range was 78 to 97 months. Because Hameed's offense involved more than five grams of crack and he had previously been convicted of a drug felony, a mandatory minimum of ten years of imprisonment applied under 21 U.S.C. §§ 841(b)(1)(B), 851. Hameed avoided the statutory minimum, however, by rendering substantial assistance to the government in investigating or prosecuting others. The government filed motions under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, allowing the district court to impose a sentence below ten years. At the sentencing hearing on November 1, 2005, the district court granted the motions.

The sentencing transcript reveals that the district judge, the parties, and the probation officer disagreed about the point from which any departure should be granted. Consistent with the presentence investigation report, the plea agreement, and the parties' expectations, the district judge began with the base offense level called for by § 2D1.1, level 28. The district judge added two levels for possession of a firearm, subtracted three levels for acceptance of responsibility, and subtracted an additional level for substantial assistance at the government's recommendation, for a total offense level of 26. Calculating the resulting guideline range as 70 to 87 months, the district judge sentenced Hameed to 70 months in prison, 4 years of supervised release, a $500 fine, and a $200 special assessment.

On November 1, 2007, Amendment 706 to the sentencing guidelines went into effect, reducing the base offense level for most crack offenses by two levels. U.S.S.G. Supp. to App. C, amend. 706 (2009). On March 3, 2008, Amendment 713 made Amendment 706 retroactive. Id., amend. 713. Relying on those two amendments, Hameed moved for a modification of sentence under 18 U.S.C. § 3582(c)(2), which allows district judges to reduce sentences that were based on guidelines ranges later lowered by the U.S. Sentencing Commission. The government did not oppose. See Dist. Ct. Document (“Doc.”) 89 (Mot. for Sent. Reduction at 2). Nonetheless, the district judge denied the motion, concluding that Hameed was ineligible for § 3582 relief because his sentence was based on the mandatory minimum, not a sentencing range that had since been lowered. Hameed timely filed this appeal.

II. ANALYSIS

A. Standard of Review

Normally, we review a district court's decision on whether to reduce a defendant's sentence under 18 U.S.C. § 3582 for abuse of discretion. United States v. Moore, 582 F.3d 641, 644 (6th Cir.2009). But when, as in this case, a district court determines that a defendant is ineligible for a sentence reduction, we review the decision de novo. United States v. Curry, 606 F.3d 323, 327 (6th Cir.2010).

B. Eligibility for a Reduction Under 18 U.S.C. § 3582

Generally, a district court may not modify a defendant's sentence after imposing it. 18 U.S.C. § 3582(c). 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:

[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 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.

§ 3582(c)(2). In this case, there is a readily identifiable “sentencing range that has subsequently been lowered”: the range produced by the drug-quantity provisions for crack-cocaine offenses found in U.S.S.G. § 2D1.1. See U.S.S.G. Supp. to App. C, amend. 706. Section 3582(c)(2) makes plain, however, that to establish eligibility for a sentence reduction under Amendment 706, Hameed will have to make two further showings: (1) that his 70-month prison sentence was “based on” a sentencing range produced by reference to § 2D1.1, and (2) that a reduction would be “consistent with applicable policy statements issued by the Sentencing Commission.” We address each requirement below.

1. Whether Hameed's Sentence Was “Based On” U.S.S.G. § 2D1.1

Hameed makes two arguments that his sentence was “based on” § 2D1.1. First, he finds it significant that the district judge calculated the guideline range under § 2D1.1 before applying the mandatory minimum. We have held in a related context, however, that a district judge's mere calculation of the sentencing range under § 2D1.1 does not render a defendant's sentence “based on” the crack guidelines range if that range is subsequently trumped by another provision of the guidelines. See United States v. Gillis, 592 F.3d 696, 699 (6th Cir.2009) (rejecting this argument when the defendant was sentenced to the low end of the career-offender guidelines); see also United States v. Caraballo, 552 F.3d 6, 9 (1st Cir.2008) (rejecting the argument when the career-offender guidelines applied because § 2D1.1 was only “a way station along the road that the district court traveled in arriving at the appropriate sentencing range”). The same is true when an applicable mandatory minimum is higher than the § 2D1.1 guideline range. The statutory minimum becomes the guideline sentence and ordinarily is binding on the district judge. See U.S.S.G. § 5G1.1(b).

Second, Hameed argues that his sentence was “based on” the § 2D1.1 guideline range because the district court in fact relied on that range in selecting a sentence after calculating the mandatory minimum. In a limited set of situations, the district judge will not be bound by the mandatory minimum. One such situation is when the government files a motion under 18 U.S.C. § 3553(e), indicating that the defendant has provided “substantial assistance in the investigation or prosecution of another person who has committed an offense.” Here, the government filed such a motion, along with a substantial-assistance motion recommending a departure from the sentencing guidelines under U.S.S.G. § 5K1.1, and the district judge returned to § 2D1.1 to calculate Hameed's ultimate sentence. On this set of facts, Hameed's argument that his sentence was “based on” the crack guidelines has...