United States v. Hardy , 479 F. App'x 178 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
June 15, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-6045
v. (D.C. No. 5:10-CR-00123-F-1)
(W.D. Okla.)
JAMES SIDNEY HARDY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Defendant-Appellant, James Sidney Hardy, appeals from the district court’s
denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and
affirm.
*
This order and judgment is not binding precedent, except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Background
On April 12, 2010, Mr. Hardy pleaded guilty to possession with intent to
distribute approximately one ounce of a mixture or substance containing a
detectable amount of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1).
See Order, United States v. Hardy, No. CR-10-123-F, ECF No. 51, at 1 (W.D.
Okla. Feb. 8, 2012) (hereinafter “Order”). He was sentenced to 96 months on
May 18, 2011, to run consecutively with any other sentence. Id.In the original presentence report, Mr. Hardy’s base offense level was 32
based upon 290 grams of crack cocaine. See Order at 1. His offense level was
lowered by three for acceptance of responsibility. Id. His guideline range was
140 to 175 months based upon a total offense level of 29 and a criminal history
category V. Id. After the disclosure of the initial presentence report, the district
court noted that the Fair Sentencing Act of 2010 (“FSA”) had been enacted, and
entered an order abating sentencing proceedings. ECF No. 33 (W.D. Okla. Aug.
9, 2010). A revised report was issued on December 29, 2010, 2 Aplt. App. 1,
applying the November 1, 2010 advisory guidelines that implemented the FSA,
but the guideline range remained at 140 to 175 months. See Order at 2. The FSA
was not applied retroactively.
Mr. Hardy filed a motion for reduction of sentence, pursuant to 18 U.S.C.
§ 3582(c)(2). ECF No. 47 (W.D. Okla. Nov. 28, 2011). The court denied the
motion on February 8, 2012, because Mr. Hardy’s guideline range had not been
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subsequently lowered by the FSA and the 18-to-1 ratio in the FSA was not
retroactive. See Order at 2. The court referred to Mr. Hardy’s conduct as “dope
dealing” and stated that it would not reduce Mr. Hardy’s sentence (even if it
could) because the 96-month sentence was significantly below the guideline range
and constituted “minimal punishment for selling this poison into the community.”
See Order at 3. This appeal followed.
Discussion
We review de novo the scope of a district court’s authority under
§ 3582(c)(2). See United States v. Williams, 575 F.3d 1075, 1076 (10th Cir.
2009). Mr. Hardy argues that, despite the fact that his guidelines range did not
change with the application of the new guidelines, Aplt. Br. 3, his sentence should
have been lowered. He claims that it was not lowered due to judicial bias. Id.Though the judge’s remarks were not necessary to the resolution of the
motion, they did not originate from an extrajudicial source and certainly do not
reveal “such a high degree of . . . antagonism as to make fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). Most important,
the district court could not modify Mr. Hardy’s sentence based on § 3582(c)(2)
because his sentencing range was not “lowered” by the Sentencing
Commission—it stayed the same. See 18 U.S.C. § 3582(c)(2). Mr. Hardy further
argues that he should have been sentenced below the five-year mandatory
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minimum and that the FSA should be applied retroactively to his case. Aplt. Br.
4. Though the government suggests several reasons why Mr. Hardy is not eligible
for such treatment, Aplee. Br. 9-10, this circuit has held that the FSA does not
apply retroactively. See United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.
2010); see, also, United States v. Sidney, 648 F.3d 904, 906 (8th Cir. 2011);
United States v. Fisher, 635 F.3d 336, 338-40 (7th Cir. 2011); United States v.
Carradine, 621 F.3d 575, 580 (6th Cir. 2010).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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