USA. v. Legree

• Decision Date: 30 November 1999
• Docket Number: CA-93-92-5-2CES,No. 97-4846,97-4846
• Citation: 205 F.3d 724
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRYANT LEGREE, Defendant-Appellant. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 724

205 F.3d 724 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRYANT LEGREE, Defendant-Appellant.

No. 97-4846 (CA-93-92-5-2CES).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: November 30, 1999.

Decided: March 8, 2000.

Appeal from the United States District Court for the District of South Carolina, at Orangeburg.

Charles E. Simons, Jr., Senior District Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: Robert L. Jacobson, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Mary Gordon Baker, Columbia, South Carolina, for Appellee. ON BRIEF: Steven H. Goldblatt, Director, Ashley N. Bailey, Student Counsel, Christopher G. Green, Student Counsel, Berna M. Lee, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. J. Rene Josey, United States Attorney, Cameron G. Chandler, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

Before WIDENER and TRAXLER, Circuit Judges, and Samual G. WILSON, Chief United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Traxler wrote the majority opinion, in which Judge Widener joined. Chief Judge Wilson wrote a dissenting opinion.

OPINION

TRAXLER, Circuit Judge:

Bryant Legree ("Legree") appeals from the district court's denial of his motion for sentence reduction. He alleges the district court erred in two respects: (1) by failing to conduct a two-part analysis of his motion on the record, and (2) by not holding a hearing and appointing counsel to assist with the motion. We affirm.

I.

On July 16, 1993, a jury convicted Legree on one count of conspiracy to possess with intent to distribute cocaine base, see 21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999), three counts of possession with intent to distribute and distribution of cocaine base, see 21 U.S.C.A. § 841(a)(1), (b)(1)(B) (West 1999), and one count of unlawful possession of a firearm, see 18 U.S.C.A. §§ 922(g)(1) (West Supp. 1998), 924(a)(2) (West Supp. 1998). The district court, with some minor modifications, adopted the findings of the pre-sentence report concerning drug amounts. Under the then-applicable Drug Quantity Table, at least five kilograms but less than fifteen kilograms of cocaine base yielded a base offense level of 40. See U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(c)(2) (1992).¹ Under U.S.S.G. § 2D1.1(b)(1), Legree received a two-point enhancement for firearms possession, and another two-point enhancement under U.S.S.G. § 3B1.1(c) for his leadership of the drug distribution conspiracy. Though the Guidelines calculation produced a total offense level of 44, the court of necessity applied level 43, the maximum set forth in the Sentencing Table. See U.S.S.G. Applic. Note 2., Ch.5, Pt.A. Legree's criminal history was category III and the district court sentenced him to life imprisonment as mandated by the Guidelines. See U.S.S.G. Ch.5, Pt.A (Sentencing Table).

At the sentencing hearing, Legree's counsel objected to some of the drug quantity estimates before turning to Legree's personal history. Counsel requested that the court reduce Legree's sentence "to less than life," but the court explained that the Sentencing Guidelines mandated a life sentence. J.A. 100. Though clearly concerned, the court then sentenced Legree to life imprisonment and described the punishment as "a terrible thing for a man 29 years old." J.A. 100-01. Legree's sentence was affirmed on appeal. See United States v. Johnson, No. 93-5845(L), 1995 WL 81672 (4th Cir. Feb. 17, 1995) (per curiam) (unpublished).

On November 1, 1994, the United States Sentencing Commission adopted Amendment 505 to the Sentencing Guidelines, reducing the maximum base offense level dictated by the Drug Quantity table from level 42 to level 38. Had Amendment 505 been in place when Legree was sentenced, his total offense level would have been calculated at 42, thus giving the district court discretion to impose a sentence from 360 months to life imprisonment. Under U.S.S.G.§ 1B1.10 (1998), the Commission provided that Amendment 505 would be retroactive, making defendants such as Legree eligible for sentence reduction.

Pursuant to 18 U.S.C.A. § 3582(c)(2) (West Supp. 1999), Legree filed a motion for sentence reduction on April 24, 1996. In September of the following year, Legree petitioned this court for a writ of mandamus, alleging delay in the district court. While we were considering the matter, the district court ruled on Legree's motion and declined to reduce Legree's sentence. We thereafter denied the mandamus petition on grounds of mootness. See In re Legree , No. 97-718, 1997 WL 777030 (4th Cir. Dec. 18, 1997) (per curiam) (unpublished). After the district court denied Legree's motion to reconsider, this appeal followed.

II.

Legree made his motion for reduction of sentence under 18 U.S.C.A. § 3582(c)(2), which permits a district court to reduce a sentence "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." Section 3582(c)(2) is discretionary and instructs the court to "consider[ ] the factors set forth in section 3553(a) to the extent that they are applicable."

As an initial matter, the government argues that 18 U.S.C.A. § 3742 (West 1985 & Supp. 1999) does not authorize an appeal of the district court's discretionary decision regarding reduction of Legree's sentence. See United States v. Lowe, 136 F.3d 1231, 1233 (9th Cir.), cert. denied, 119 S. Ct. 425 (1998); see also United States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990). Section 3742(a)(1) permits an appeal by a defendant if his sentence "was imposed in violation of law." We believe that the government's characterization of the petition for review misconstrues the true nature of Legree's position. At base, Legree asserts that the district court ignored constraints found in the Guidelines and case law when it denied the motion for sentence reduction. He asks that we remand and instruct the district court to conduct a two-prong analysis and articulate on the record the precise reasons for its disposition of the motion, a procedure he argues the law requires. Because Legree alleges his motion was decided "in violation of law," we conclude there is jurisdiction under 18 U.S.C.A. § 3742(a)(1). See United States v. Turner , 59 F.3d 481, 483-84 (4th Cir. 1995) (recognizing that the application of a retroactive amendment is discretionary, but undertaking review when district court denied § 3582(c) motion based on an erroneous legal interpretation of amendment's effect on the weight calculation for quantities of liquid LSD).

A.

Legree first argues that the district court erred by neglecting to undertake a two-prong analysis on the record when considering the motion for reduction of sentence. We review this question of law de novo. See United States v. Bacon, 94 F.3d 158, 161 (4th Cir. 1996); Turner, 59 F.3d at 484. According to Legree, the district court was required to (1) state on the record the sentence it would have imposed had Amendment 505 been in place when Legree was originally sentenced, and (2) address on the record the factors enumerated in 18 U.S.C.A. § 3553(a) (West 1985 & Supp. 1999).

Legree infers the necessity of a two-prong analysis from U.S.S.G. § 1B1.10(b) and 18 U.S.C.A. § 3553(a). Section 1B1.10(b), in pertinent part, provides:

In determining whether, and to what extent, a reduction in the term of imprisonment is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the term of imprisonment that it would have imposed had the amendment(s) to the guidelines . . . been in effect at the time the defendant was sentenced. .. .

U.S.S.G. § 1B1.10(b). And the familiar § 3553(a) lists factors a court imposing a prison sentence must consider.² After describing Legree's motion, recounting the history of Amendment 505, and observing that a court is not required to reduce a sentence under the Amendment, the district judge denied the motion.

At oral argument, counsel for Legree conceded that section 1B1.10(b) of the Sentencing Guidelines does not specifically require application of the proffered two-part analysis by the court on the record, and instead appealed to case law outside this circuit. While we recognize that other circuits have adopted this procedure, see, e.g., United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998), cert. denied, 119 S. Ct. 888 (1999); United States v. Wyatt, 115 F.3d 606, 609 (8th Cir. 1997), we respectfully disagree with the necessity and utility of this method. In analogous situations, we have held that "[a] court need not engage in ritualistic incantation in order to establish its consideration of a legal issue. It is sufficient if . . . the district court rules on issues that have been fully presented for determination. Consideration is implicit in the court's ultimate ruling." United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (dealing with district court's alleged failure to consider policy statements of Sentencing Guidelines when revoking supervised release); see also United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998) (holding that in non-departure cases there is a presumption, absent a "contrary indication," that a district court considered the factors enumerated in 18 U.S.C.A. § 3553(a)). We believe that the presumption found in Davis and Johnson applies equally to motions made pursuant to § 3582(c)(2). To hold otherwise would transform this aspect of sentencing into a"hyper-technical exercise devoid of common sense," a result not intended by the adoption of the Guidelines. Johnson, 138 F.3d at 119.

Legree attempts to distinguish Davis and Johnson by arguing that issues in those...