USA v. Mills

• Decision Date: 05 August 2010
• Docket Number: Nos. 08-11760, 08-11797.,s. 08-11760, 08-11797.
• Citation: 613 F.3d 1070
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrea MILLS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Joshua L. Brown, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

613 F.3d 1070

UNITED STATES of America, Plaintiff-Appellee,

v.Andrea MILLS, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Joshua L. Brown, Defendant-Appellant.

Nos. 08-11760, 08-11797.

United States Court of Appeals,Eleventh Circuit.

Aug. 5, 2010.

Craig L. Crawford, Rosemary T. Cakmis, Fed. Pub. Defenders, Orlando, FL, Donna Lee Elm, Fed. Pub. Def., Tampa, FL, for Defendants-Appellants.

David Paul Rhodes, Linda Julin McNamara, Susan Hollis Rothstein-Youakim, Tampa, FL, Peggy Morris, U.S. Attorney's Office, Orlando, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, EDMONDSON and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

In separate appeals, which we have consolidated because they raise the same issue, Andrea Mills and Joshua Brown (collectively “Defendants”) appeal the denial of their motions for reduction of sentence under 18 U.S.C. § 3582(c)(2). ¹ Finding that in both cases, Defendants' statutory mandatory minimum sentences left the district courts without jurisdiction to hear their sentence reduction motions, we affirm the district courts' judgments.

We begin with a brief recitation of Mills's and Brown's respective circumstances.

I.

A.

Mills and a codefendant were caught in a sting operation selling cocaine base (“crack cocaine”) to a confidential source and indicted for conspiracy to possess with intent to distribute 50 or more grams of crack cocaine and possession with intent to distribute crack cocaine. See 21 U.S.C. §§ 841(b)(1)(A)(iii), 846. Mills pled guilty. The district court's probation office prepared a Presentence Investigation Report (“PSI”) attributing Mills with a total of 82.6 grams of crack cocaine, which, under the version of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) then in effect, gave Mills a base offense level of 32. U.S.S.G. § 2D1.1(c)(4) (2006). ² Mills's base offense level was then reduced by two levels because she received a mitigating role adjustment for her participation in the conspiracy. U.S.S.G. § 2D1.1(a)(3) (2006). ³ Three levels were then deducted for Mills's role-in-the-offense adjustment, U.S.S.G. § 3B1.2(a) & (b) (2006), ⁴ and three further levels were deducted for her acceptance of responsibility, U.S.S.G. § 3E1.1(a) & (b) (2006), resulting in a total offense level of 24.

Mills's prior criminal activity resulted in a criminal history category of III. Based on her total offense level and criminal history category, the PSI recommended a sentencing range of 63 to 78 months' imprisonment. Because Mills was subject to a mandatory minimum sentence of 10 years for her violation of § 841(b)(1)(A)(iii), however, her effective (or “applicable”) Guidelines sentencing range became a fixed term of imprisonment, 120 months. See U.S.S.G. § 5G1.1(b) (2006) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”).

At sentencing, the Government moved for, and the district court granted, a departure below the statutory minimum due to Mills's substantial assistance to the Government. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1 (2006). The court departed downward by two levels to a total offense level of 22. Mills's new sentencing range became 51 to 63 months' imprisonment, and the district court sentenced her to 51 months, followed by five years of supervised release.

B.

Brown, like Mills, was caught in a sting operation in which he and a codefendant sold crack cocaine to a confidential informant. ⁵ They were indicted for one count of conspiracy to possess with intent to distribute 50 or more grams of crack cocaine, 21 U.S.C. § 846, and one count of knowingly and intentionally aiding and abetting the possession with intent to distribute and distribution of 50 grams or more of crack cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. Brown pled guilty to the second count, and the Government dismissed the first count.

Brown's PSI attributed him with 120.2 grams of crack, resulting in a base offense level of 32 under the crack cocaine Guideline then in effect, U.S.S.G. § 2D1.1(c)(4) (2006). Like Mills, Brown received a mitigating role reduction for his participation in the conspiracy, though unlike Mills, he received only a two-level reduction as a minor participant. Id. § 3B1.2(b). This reduced Brown's base offense level by two levels. Id. § 2D1.1(a)(3). Two levels were then deducted for Brown's minor role reduction, and three further levels were deducted for Brown's acceptance of responsibility, id. § 3E1.1(a) & (b), resulting in a total offense level of 25.

Brown's prior criminal activity yielded a criminal history category of III. At sentencing, the district court found that category III substantially overrepresented the seriousness of Brown's criminal history or the likelihood that he would commit other crimes, and departed downward to a criminal history category of II. Id. § 4A1.3(b)(1). Based on Brown's total offense level and criminal history category, the PSI recommended a sentencing range of 70 to 87 months' imprisonment. Like Mills, however, Brown's effective (or “applicable”) Guidelines sentencing range became set at 120 months because he too faced a statutory mandatory minimum sentence under § 841(b)(1)(A)(iii).

At sentencing, the district court rewarded Brown for his substantial assistance to the Government by departing 6 levels downward from the statutory mandatory minimum. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1 (2006). Brown thus received a total of 13 levels' downward departure from his originally calculated base offense level. With a new offense level of 19, and a criminal history category of II, Brown's Guidelines sentencing range became 33 to 41 months' imprisonment. The district court sentenced Brown at the bottom of the range, to 33 months, followed by three years of supervised release.

C.

The district court entered judgment in Mills's case on May 7, 2007. On January 31, 2008, the court ordered Mills and the Government to address the possible retroactive application of an amendment to the crack cocaine Guideline. See infra part II. Mills, through counsel, contended that she was eligible for a reduction in her sentence due to the retroactive application of this amendment. The Government opposed the reduction, arguing that the amendment did not apply to Mills and, accordingly, the district court lacked authority to reduce Mills's sentence. The district court agreed with the Government, ruling on March 24, 2008, that it lacked jurisdiction to modify Mills's sentence. The court labeled this result “nonsensical,” however, because although “the Sentencing Commission sought to provide additional relief to offenders such as Mills who played a relatively minor role in a conspiracy involving a relatively large quantity of drugs” by “reduc[ing] the large disparity in sentencing between crack offenders and cocaine offenders,” the combined effects of the amendment and 18 U.S.C. § 3582(c)(2) left the court without jurisdiction to adjust Mills's sentence. The court suggested that this “arbitrary” result “deserv[ed] attention by the Sentencing Commission.”

The district court entered judgment in Brown's case on May 9, 2007. On February 13, 2008, the court ordered Brown and the Government to address the possible retroactive application of the crack cocaine amendment. Brown contended he was eligible for a sentence reduction, while the Government made much the same argument it did in Mills's case. The district court agreed with the Government, ruling on March 26, 2008, that the relevant amendments did not lower the sentencing range on which Brown's sentence was based, and therefore, that the court lacked authority under § 3582(c)(2) to reduce Brown's sentence.

Defendants timely appealed the district courts' denials of their motions for sentence reduction. We have jurisdiction under 28 U.S.C. § 1291.

II.

We review de novo the district court's legal conclusions about its jurisdiction under the Sentencing Guidelines. United States v. Davis, 587 F.3d 1300, 1303 (11th Cir.2009) (per curiam) (citing United States v. Jones, 548 F.3d 1366, 1368 (11th Cir.2008)). Our review of the district court's decision not to reduce a sentence under 18 U.S.C. § 3582(c)(2) is for abuse of discretion. Id. (citing Jones, 548 F.3d at 1368 n. 1).

Effective November 1, 2007, the United States Sentencing Commission implemented Amendment 706 to the Guidelines, which lowered by two levels the base offense levels in U.S.S.G. § 2D1.1 applicable to crack cocaine offenses. Amendment 713, which became effective March 3, 2008, made Amendment 706 retroactive to defendants with crack cocaine convictions who were sentenced under U.S.S.G. § 2D1.1. See U.S.S.G.App. C, amends. 706, 713 (Supp. Mar. 3, 2008). ⁶ The Sentencing Commission adopted these amendments to attempt to mitigate the hundred-fold sentencing disparity between defendants convicted of crack cocaine offenses and those convicted of powder cocaine offenses. See id. amend. 706 (“Reason for Amendment”).

Ordinarily, a district court may not modify a previously imposed sentence “except in specific circumstances delineated in 18 U.S.C. § 3582(c).” United States v. Williams, 549 F.3d 1337, 1339 (11th Cir.2008) (per curiam). Section 3582(c) provides, in relevant part, that

[t]he court may not modify a term of imprisonment once it has been imposed except that

....

(2) 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 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 [18 U.S.C. §] 3553(a) to the extent that the

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