United States v. Bloomgren , 532 F. App'x 828 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
July 26, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 12-8018
v. (D. of Wyo.)
DAVID BLOOMGREN, (D.C. No. 2:99-CR-00135-ABJ-1)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
David Bloomgren, a federal prisoner proceeding pro se, appeals the district
court’s denial of his motion to modify his sentence pursuant to 18 U.S.C.
§ 3582(c). Exercising jurisdiction under 28 U.S.C. § 1291, we 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This order and judgment is not binding precedent except under the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.
I. Background
Bloomgren was convicted of federal narcotics and firearms charges and was
sentenced to 360 months’ imprisonment. The sentencing court enhanced his
offense level under United States Sentencing Guideline (USSG) § 4B1.1(a) after
finding Bloomgren was a career offender, based on several prior violent and drug-
related felony convictions.
Bloomgren unsuccessfully appealed his conviction and sentence. See
United States v. Bloomgren, 42 F. App’x 147 (10th Cir. 2002). He then filed a
motion to vacate his sentence under 28 U.S.C. § 2255, but was again
unsuccessful. See United States v. Bloomgren, 160 F. App’x 764 (10th Cir.
2005).
On May 10, 2011, six years after his § 2255 petition was denied,
Bloomgren filed a motion to amend his sentence pursuant to 18 U.S.C. § 3582(c),
arguing his sentence was improperly calculated under Sentencing Guideline
Amendment 591. The district court denied his motion one week later.
Bloomgren then waited almost an entire year before filing his notice of appeal on
March 5, 2012. As justification for this late filing, Bloomgren claimed he was
not notified of the district court’s decision until he contacted the court on
February 27, 2012. 1
1
We note that this potentially renders Bloomgren’s appeal untimely. In
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II. Discussion
We review the denial of a reduction in sentence under § 3582(c) for an
abuse of discretion. United States v. Dorrough, 84 F.3d 1309, 1311 (10th Cir.
1996). But we review the district court’s interpretation of the USSG and other
legal issues de novo. United States v. Smartt, 129 F.3d 539, 540 (10th Cir. 1997).
We construe Bloomgren’s filings liberally as he is proceeding pro se. Andrews v.
Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007).
Federal courts may not modify a term of imprisonment once it has been
imposed except in very limited circumstances. Dillon v. United States, 130 S. Ct.
2683, 2687 (2010). There are three main exceptions: (1) when the Bureau of
1
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criminal cases, the notice of appeal must be filed within 14 days after the entry of
judgment. Fed. R. App. P. 4(b)(1). This rule also applies to appeals from denials
of § 3582(c) motions. See United States v. Espinosa-Talamantes, 319 F.3d 1245,
1246 (10th Cir. 2003). A district court may grant an extension of time to file the
notice of appeal, but may not grant more than 30 additional days. Fed. R. App. P.
4(b)(4); Espinosa-Talamantes, 319 F.3d at 1246–47. Even if the district court
had granted Bloomgren 30 additional days to file his notice of appeal, he would
have had only until June 30, 2011 to file it.
But this is not a jurisdictional requirement, but rather a claim-processing
rule that, “unlike a jurisdictional rule, may be forfeited if not properly raised by
the government.” United States v. Garduño, 506 F.3d 1287, 1290–91 (10th Cir.
2007). The government, in its answer brief, notes Bloomgren’s untimely filing,
but states that it will not raise this issue as it prefers to address his arguments on
the merits. And though we may raise the issue of Bloomgren’s untimely filing
sua sponte, we should refrain from doing so “when judicial resources and
administration are not implicated and the delay has not been inordinate.” United
States v. Mitchell, 518 F.3d 740, 750 (10th Cir. 2008). We find neither of these
factors is implicated, and thus will address the merits of Bloomgren’s appeal.
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Prisons moves for a reduction based on a finding that special circumstances
warrant it, (2) when expressly permitted by statute or Federal Rule of Criminal
Procedure 35, or (3) when a defendant was sentenced based on a sentencing range
that is subsequently lowered. 18 U.S.C. § 3582(c). Even in such cases, courts
may not lower the defendant’s sentence except to the extent doing so is consistent
with the factors listed in 18 U.S.C. § 3553(a) and the Sentence Commission’s
policy statement, found at USSG § 1B1.10. 18 U.S.C. § 3582(c)(2). If none of
the exceptions in § 3582(c) applies, the district court lacks jurisdiction to consider
a defendant’s request for a sentence reduction. Smartt, 129 F.3d at 541.
Bloomgren bases his argument on Amendment 591 to the USSG, effective
November 1, 2000. See U.S. Sentencing Guidelines Manual, App. C, Amend.
591. This amendment revised two sections: USSG § 1B1.2, to clarify that a
sentencing court must apply the offense guideline referenced in the Statutory
Index for the statute of conviction, without regard to uncharged relevant conduct;
and USSG § 2D1.2, which clarified that the enhanced penalties of that
section—for delivering drugs in certain locations, such as near a school, or to
certain vulnerable individuals—apply only when a defendant is convicted of an
offense specifically referenced in that section.
As the district court explained, this amendment does not apply to
Bloomgren for two reasons. First, Bloomgren’s sentence was not enhanced under
USSG § 2D1.2. Bloomgren argues the offenses he was convicted of are not listed
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in this section, which is true, but this is irrelevant. His sentence was enhanced
under USSG § 2D1.1(b)(1), not § 2D1.2, and Amendment 591 did not affect this
provision.
Second, the sentencing court properly applied a career criminal
enhancement to Bloomgren under § 4B1.1(a). Bloomgren argues Amendment 591
is applicable because § 1B1.2 directs the court to determine the offense guideline
section based on the offense of conviction and does not mention the career
criminal enhancements in § 4B1.1. But according to § 1B1.1(a), determining the
offense guideline section under § 1B1.2 is only the first step in calculating a
defendant’s guideline range. See USSG § 1B1.1(a)(1). The sixth step,
§ 1B1.1(a)(6), directs the sentencing court to apply the career offender provisions,
including § 4B1.1.
Amendment 591 had no affect on the career offender guidelines in § 4B1.1.
See United States v. McAllister, 314 F. App’x 110, 112 (10th Cir. 2008). Thus it
did not lower Bloomgren’s sentencing range. 18 U.S.C. § 3582(c)(2). Because
none of the other § 3582(c) exceptions apply, we have no authority to consider
Bloomgren’s request for a sentence reduction. Smartt, 129 F.3d at 541.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of
Bloomgren’s motion to modify his sentence. Bloomgren’s motion to proceed in
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forma pauperis on appeal is also DENIED.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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