United States v. Sallis , 354 F. App'x 379 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 4, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-7036
v.
(D.C. No. 6:06-CR-00007-RAW-2)
(E.D. Okla.)
RANDON TAMAR SALLIS,
a/k/a Mr. “T,”
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR and EBEL, Circuit Judges.
Randon Tamar Sallis was convicted on eleven criminal counts and
sentenced to 360 months imprisonment. We affirmed. United States v. Sallis,
533 F.3d 1218, 1220-22 (10th Cir. 2008). 1 He subsequently moved the district
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
1
Mr. Sallis was convicted of conspiracy to distribute methamphetamine,
cocaine, and marijuana; possession of methamphetamine with intent to distribute;
two counts of possession of marijuana with intent to distribute; possession of
cocaine with intent to distribute; falsifying a government form in the acquisition
court, pro se, for a reduction in his sentence under 18 U.S.C. § 3582(c)(2), 2
arguing that he was entitled to one pursuant to Amendment 706 to the Sentencing
Guidelines. Although we disagree with the district court’s analysis, we affirm its
conclusion denying a reduction in Mr. Sallis’ sentence.
Amendment 706 generally permits a two-level reduction in the base-offense
level set out in U.S.S.G. § 2D1.1(c) for crack cocaine offenses. See U.S.S.G.
App. C, Amend. 706 (2007). The government opposed Mr. Sallis’ motion for a
reduction, contending “[t]he current guideline range without the inclusion of any
cocaine base is the same as it has always been, and therefore a reduction in
sentence would not be appropriate.” Resp. Br. at 2. The Probation Office filed
an addendum to the Presentence Report in support of the government’s position,
directing the court to U.S.S.G. § 2D1.1 Application Note 10(D)(ii)(II), which
of a firearm; receiving a firearm while charged by way of information; possession
of Xanax with intent to distribute; and three counts of possession of ecstacy with
intent to distribute; and three counts of criminal forfeiture. Sallis, 533 F.3d at
220-22.
2
Section 3582(c)(2) provides:
The court may not modify a term of imprisonment once it has been
imposed except that . . . 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 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.
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states that “the two (2) level reduction shall not apply in a case in which the two
(2) level reduction results in a combined offense level that is less than the
combined offense level that would apply if the offense involved only the other
controlled substances (i.e., the controlled substances other than crack cocaine.).”
Rec. vol. I, at 317 (“Addendum”).
The district court, without addressing the government’s response or the
probation office’s addendum, granted a two-level reduction to Mr. Sallis but
denied his motion to reduce his sentence, reasoning:
The sentence originally imposed in this case falls within the amended
advisory guideline range. At the time of the original sentencing the
Court found that the sentence was reasonable for this defendant and
the crimes for which he had been convicted. The Court also noted
for the record that this is the same sentence the Court would have
imposed if given the broadest possible discretion, and the same
sentence the Court would impose notwithstanding any judicial fact-
finding occurring by adoption of the Presentence Report or during
the sentencing hearing.
Dist. Ct. Mar. 31 2009 Order Regarding Motion to Reduce Sentence Pursuant to
18 U.S.C. § 3582(c)(2) at 1.
Mr. Sallis appeals, contending the district court erred when it “declined to
impose the lower end of the new applicable range” Aplt. Br. at 2. We review de
novo the district court’s legal conclusions pertaining to calculation of the
recommended guidelines range. See United States v. Todd, 515 F.3d 1128, 1135
(10th Cir. 2008). We note, however, that a court may not modify a term of
imprisonment without specific authority. 18 U.S.C. § 3582(c)(2).
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Pursuant to 28 U.S.C. § 994(o), the United States Sentencing Commission
possesses the authority to amend the sentencing guidelines and to provide that any
amendment has retroactive effect. Under 18 U.S.C. § 3582, a defendant may seek
the benefit of such an amendment through a motion to modify his sentence.
Under the guidelines, a court “may reduce the defendant’s term of imprisonment,”
pursuant to 18 U.S.C. § 3582(c), “when the guideline range applicable to that
defendant has subsequently been lowered as a result of an amendment to the
Guidelines manual listed in subsection (c) below.” U.S.S.G. § 1B1.10(a)(1).
Amendment 706 is listed in subsection (c) and provides that a defendant is
generally entitled to a two-level reduction in his base-offense level, subject to
some exceptions. Application Note 10(D)(ii)(II)(ii) to § 2D1.1 articulates the
following exception:
The 2-level reduction . . . shall not apply in a case in which:
....
(II) the 2-level reduction results in a combined offense level that is
less than the combined offense level that would apply under
subdivision (B) of this note if the offense involved only the other
controlled substance(s) (i.e., the controlled substance(s) other than
cocaine base).
In other words, Mr. Sallis is not entitled to the reduction if it would result in a
lower offense level than the offense level recalculated under the drug equivalency
table for the non-crack cocaine substances for which he was convicted, i.e.,
without the crack cocaine included.
The original guideline computation for the marijuana equivalent of the
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various drugs involved in Mr. Sallis’ case (including the crack-cocaine) was
16,794.56993 kilograms, resulting in the base-offense level of 36. As the
probation office’s Addendum notes, “the total marijuana equivalent of all other
[non-crack] drugs involved in this case would be 16,606.569 kilograms of
marijuana, which still results in a base offense level of 36.” Rec. vol. 1, at 317;
see also U.S.S.G. § 2D1.1. Thus, removing the small amount of crack cocaine
that was included in his original sentence results in no alteration in Mr. Sallis’s
original guideline range. The district court was precluded from granting the two-
level reduction because doing so resulted in a combined offense level lower than
the combined offense level calculated without the crack cocaine, contrary to
§ 2D1.1 app. n. 10(D)ii(II). Giving Mr. Sallis the two-level reduction under these
circumstances would give him a benefit that Amendment 706 does not authorize.
Although the district court’s grant of a two-level reduction in Mr. Sallis’
offense level was error, that error was harmless because the court declined
thereafter to reduce Mr. Sallis’ sentence. See United States v. Todd, 515 F.3d
1128, 1139 (10th Cir. 2008) (“We may affirm a sentence resulting from an
incorrect Guidelines calculation only if we are able to say that the error was
harmless.”). Accordingly, we AFFIRM.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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