United States v. Pierre Andre Cover , 491 F. App'x 87 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11865
Non-Argument Calendar
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D.C. Docket No. 1:97-cr-00923-UU-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
PIERRE ANDRE COVER,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 2, 2012)
Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Pierre Andre Cover, proceeding pro se, appeals the district court’s denial of
his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), which was
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based on Amendment 599 to the Sentencing Guidelines.
Cover previously filed a motion in 2001 seeking this same relief, but the
district court denied that motion. At that time, the district court determined that
Cover was eligible for a sentence reduction under § 3582(c)(2) because
Amendment 599 was retroactively applicable and had the actual effect of lowering
his guideline range from 211–248 months of imprisonment to 138–157 months of
imprisonment.1 But, after considering the 18 U.S.C. § 3553(a) factors, the district
court declined to exercise its discretion to reduce Cover’s sentence. The court
specifically emphasized that Cover had not assisted the government in identifying
other participants in the underlying offense. The court found that Cover “never
evinced true remorse.”
In the course of later appeals, different panels of this Court affirmed the
substance of this ruling, holding that it was not an abuse of discretion for the
district court to deny relief. And, in rejecting Cover’s latest motion for a sentence
reduction, the district court concluded that there was no reason for it to reconsider
1
Amendment 599 clarified the applicability of weapon enhancements for defendants
sentenced under 18 U.S.C. § 924(c). See U.S.S.G. Supp. to App. C at 68–69 (2000).
Specifically, the amendment “rejected the interpretation of the sentencing guidelines [that was]
previously followed by this circuit,” United States v. Le, 256 F.3d 1229, 1239 (11th Cir. 2001),
and which led to a six-level enhancement in Cover’s offense level, see United States v. Cover,
199 F.3d 1270, 1277–78 (11th Cir. 2000).
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its prior analysis. On appeal, Cover urges us to set aside this decision.
Specifically, he argues that the Supreme Court’s intervening decisions in Dillon v.
United States, 560 U.S. ___, 130 S. Ct. 2683 (2010), and Freeman v. United
States, 564 U.S. ___, 131 S. Ct. 2685 (2011), have undermined the district court’s
2001 ruling. Cover also asserts that the district court’s reliance on the fact that he
had chosen not to identify other participants in his offense was improper because it
infringed upon his Fifth Amendment privilege against self-incrimination.
We review a district court’s decision whether to reduce a sentence pursuant
to § 3582(c)(2) for abuse of discretion. See United States v. Webb, 565 F.3d 789,
792 (11th Cir. 2009). However, we review de novo the legal conclusions the
district court makes in ruling on such a motion. Id.Section 3582(c)(2) provides that a district court may reduce a defendant’s
term of imprisonment if a defendant was sentenced based on a sentencing range
that was subsequently lowered by an amendment to the guidelines. 18 U.S.C.
§ 3582(c)(2). Any reduction, however, must be consistent with the policy
statement issued by the Sentencing Commission regarding this kind of relief,
U.S.S.G. § 1B1.10 (2011). 18 U.S.C. § 3582(c)(2). Under these provisions, a
district court undertakes a two-step process for ruling on a motion for a sentence
reduction. See Dillon, 130 S. Ct. at 2691. First, the district court must determine
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the guideline range that would have applied to the defendant had the amendment
to the guidelines been in effect at the time of the defendant’s sentencing. See id.Second, if the amendment has the effect of lowering the defendant’s guideline
range, then the court must decide whether to exercise its discretion to reduce the
defendant’s sentence by considering the § 3553(a) factors. See id. at 2691–92.
As set out above, the district court held at step one that Cover was eligible
for a sentence reduction because Amendment 599 was retroactively applicable and
had the effect of lowering his guideline range. But, at step two, the district court
concluded that a sentence reduction was not warranted in light of the § 3553(a)
factors. With this background in mind, we turn to the arguments that Cover raises
in this appeal.
First, Cover asserts that the Supreme Court’s decisions in Dillon and
Freeman require reconsideration of the district court’s 2001 ruling. We are not
persuaded by this argument. The specific question that the Supreme Court
considered in Dillon was whether its decision in United States v. Booker, 543 U.S.
220, 125 S. Ct. 738 (2005), rendered the Sentencing Commission’s policy
statement on sentence reductions under § 3582(c)(2) advisory. See Dillon, 130 S.
Ct. at 2687. The Supreme Court held that it did not. See id. This holding simply
does not indicate that the district court in this case abused its discretion in
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considering the § 3553(a) factors at step two of the inquiry. If anything, Dillon
affirms the framework that the district court applied, including the principle that,
at step two, it is “in [the] discretion” of the district court to determine whether a
reduction is ultimately warranted. Id. at 2692.
Neither does Freeman change the picture. The question presented in that
case was whether a defendant who, pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), enters into a plea agreement that recommends a particular
sentence is eligible for a sentence reduction under § 3582(c)(2). See Freeman, 131
S. Ct. at 2689 (plurality opinion). In her controlling concurrence,2 Justice
Sotomayor concluded that such a defendant is eligible for relief, but only if the
sentencing recommendation in the 11(c)(1)(C) plea agreement itself was expressly
made on the basis of a guideline range. See id. at 2695 (Sotomayor, J., concurring
in the judgment). This holding has no bearing here. Cover pleaded guilty without
entering into a plea agreement, let alone one pursuant to Rule 11(c)(1)(C). See
United States v. Cover, 199 F.3d 1270, 1273 (11th Cir. 2000). Also, the district
court held at step one that Cover was eligible for a reduction. It simply decided
2
See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 993 (1977) (“When a
fragmented Court decides a case and no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds.” (quotation marks omitted)).
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not to exercise its discretion to grant relief at step two.
Finally, Cover asserts that, by relying on the fact that he had chosen not to
identify other participants in the underlying offense to deny his request for a
sentence reduction, the district court impermissibly infringed upon his Fifth
Amendment privilege against self-incrimination. The weight of our precedent
requires us to reject this argument.
We have previously dismissed a Fifth Amendment challenge to the
provision of the Sentencing Guidelines that authorizes a reduction in a defendant’s
offense level based on the defendant’s acceptance of responsibility, U.S.S.G. §
3E1.1 (2011). See United States v. Carroll, 6 F.3d 735, 739–40 (11th Cir. 1993);
United States v. Henry, 883 F.2d 1010, 1010–12 (11th Cir. 1989). Specifically,
we held that “conditioning sentence reductions on a defendant’s acceptance of
responsibility does not violate the Fifth Amendment,” even though this may mean
that a defendant who chooses to remain silent may face a longer sentence. Carroll,
6 F.3d at 739. The reason for this, we said, is that the acceptance of responsibility
provision “is not a punishment.” Id. at 740. Instead, “it provides only for [a]
sentence reduction” and thus is best understood as a “benefit,” one that reflects a
“tradition of leniency” toward defendants who show remorse. Henry, 883 F.2d at1011 n.6, 1012. This being the case, we concluded that the denial of a reduction
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in the offense level of a defendant who chooses to remain silent does not amount
to a penalty for the exercise of that right. See id. at 1011–12; see also Carroll, 6
F.3d at 739–40.
This reasoning applies with equal—if not, greater—force to sentence
reductions pursuant to § 3582(c)(2). The Supreme Court has observed that
sentence reductions under this statutory provision “are not constitutionally
compelled.” Dillon, 130 S. Ct. at 2692. “Rather, § 3582(c)(2) represents a
congressional act of lenity.” Id. The statute offers “prisoners the benefit of later
enacted adjustments to the judgments reflected in the Guidelines,” one that would
otherwise be simply unavailable because of the rule of finality. Id. Given that a
sentence reduction under § 3582(c)(2) is thus a benefit, its denial—under our
precedent—cannot be said to amount to a penalty. See Carroll, 6 F.3d at 739–40;
see also Henry, 883 F.2d at 1011 (declining to “equate the possibility of leniency
with impermissible punishment”). From this, it follows that a district court’s
decision to deny a sentence reduction under § 3582(c)(2) in light of a defendant’s
decision to remain silent does not infringe upon the exercise of that Fifth
Amendment right.
For these reasons, we affirm the judgment of the district court.
AFFIRMED.
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