United States v. Darnell Black , 737 F.3d 280 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6228
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARNELL BLACK, a/k/a Chuck,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cr-00313-BO-1)
Argued: October 30, 2013 Decided: December 6, 2013
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge King and Judge Duncan joined. Judge
King wrote a separate concurring opinion.
ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
NIEMEYER, Circuit Judge:
Darnell Black was sentenced in January 2007 to the
statutory minimum of 120 months’ imprisonment for conspiracy to
traffic in more than 50 grams of crack cocaine. See 21 U.S.C.
§ 841(b)(1). The Fair Sentencing Act, which was enacted in
2010, more than three years after Black was sentenced, reduced
the statutory minimum sentence applicable to his circumstances
from 120 months’ imprisonment to 60 months’ imprisonment. Black
filed a motion under 18 U.S.C. § 3582(c)(2) to modify his
sentence, contending that the reduced minimum sentences in the
Fair Sentencing Act should apply to him. The district court
denied his motion, relying on our decision in United States v.
Bullard, 645 F.3d 237 (4th Cir. 2011), in which we held that the
Fair Sentencing Act does not apply retroactively.
For the reasons given herein, we affirm. We conclude that
the statutory minimum sentences in the Fair Sentencing Act do
not apply to a defendant sentenced before the Act’s effective
date. Moreover, we reject Black’s argument that a § 3582(c)(2)
proceeding conducted after the effective date of the Fair
Sentencing Act provides a vehicle by which to apply the reduced
minimum sentences in the Fair Sentencing Act to him.
2
I
Black pleaded guilty on September 14, 2006, to conspiracy
to distribute and possess with intent to distribute more than 50
grams of crack cocaine, in violation of 21 U.S.C. §§ 846,
841(a)(1). In the presentence report prepared for Black’s
sentencing, the probation officer recommended that Black be held
accountable for 84.2 grams of crack cocaine and 26.8 grams of
powder cocaine, yielding, after other adjustments not relevant
here, a Sentencing Guidelines range of 97 to 121 months’
imprisonment. Because the underlying drug trafficking offense
involved more than 50 grams of crack cocaine, however, Black was
subject to a statutory minimum sentence of 120 months’
imprisonment, id. § 841(b)(1)(A) (2006), and therefore his
sentencing range became 120 to 121 months’ imprisonment. On
January 23, 2007, the district court sentenced Black to 120
months’ imprisonment, the statutory minimum.
More than three years later, Congress enacted the Fair
Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.
2372, in response to extensive criticism about the disparity in
sentences between crack cocaine offenses and powder cocaine
offenses. See Dorsey v. United States, 132 S. Ct. 2321, 2328-29
(2012). Among other things, the FSA reduced the statutory
minimum sentences for crack cocaine offenses by increasing the
quantity of crack cocaine necessary to trigger the minimums --
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raising the amount from 15 grams to 28 grams for the 5-year
minimum sentence, and from 50 grams to 280 grams for the 10-year
minimum sentence. See FSA § (2)(a). The Act left the statutory
minimum sentences for powder cocaine in place. The effect of
the changes was to reduce the sentencing disparity between crack
cocaine offenses and powder cocaine offenses by lowering the
crack-to-powder ratio from 100-to-1 to 18-to-1. The FSA also
directed the Sentencing Commission to conform the Sentencing
Guidelines to the new statutory minimums “as soon practicable.”
Id. § 8. The Sentencing Commission thereafter promulgated
amendments to the Guidelines, reducing the recommended
sentencing ranges to levels consistent with the FSA, to be
applied retroactively. See U.S.S.G. App. C Amends. 750, 759
(2011). Comments to the Guidelines, however, explain that
retroactive amendments do not alter statutory minimum terms of
imprisonment. See U.S.S.G. § 1B1.10, cmt. n.1(A).
On October 18, 2012, Black filed a motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2), which allows for a
sentence reduction “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.” Black claimed that because the FSA had lowered the
statutory minimum for the amount of crack cocaine for which he
was accountable from 120 months’ imprisonment to 60 months’
4
imprisonment and the Sentencing Commission had, as required by
the FSA, reduced its recommended sentencing ranges for crack
cocaine to the same extent, his sentence should be reduced
accordingly.
The district court denied Black’s motion, relying on our
decision in Bullard to state that “[t]he Fourth Circuit, like
most others, has held that the FSA mandatory minimums do not
apply retroactively.” The court therefore concluded that while
“application of the retroactive FSA guidelines to this matter
results in a new guideline range of fifty-one to sixty-three
months . . . [the] defendant still faces a pre-FSA mandatory
minimum of 120 months’ imprisonment.”
Black filed this appeal, arguing primarily that even though
the Supreme Court’s decision in Dorsey may not have directly
overruled Bullard, it nonetheless provides the rationale for
applying the FSA to his § 3582(c)(2) proceeding and thereby for
modifying his 120-month sentence, which had been imposed in 2007
before the effective date of the Act.
II
Black contends that the Supreme Court’s decision in Dorsey,
while not holding that the FSA applies to a § 3582(c)(2)
proceeding, implies such a result through its reasoning. He
recognizes Dorsey’s narrow holding that persons sentenced after
5
the effective date of the FSA for an offense committed before
the effective date should be sentenced pursuant to the FSA. To
apply that holding, he reasons that a § 3582(c)(2) proceeding is
a sentencing proceeding, and therefore, because his § 3582(c)(2)
proceeding took place after the FSA’s effective date, he should
be sentenced under the FSA, which establishes a reduced
statutory minimum sentence of 60 months’ imprisonment for the
amount of drugs involved in his crime.
To reach this conclusion, he relies on the reasons the
Dorsey Court gave for concluding that a defendant who commits a
crime before the effective date of the FSA but was sentenced
after the effective date should have the benefit of the FSA. He
argues that just as Dorsey’s holding did no violence to the
basic principles governing the retroactivity of legislation, a
holding applying the FSA to § 3582(c)(2) proceedings would
similarly do no such violence. This is because, he explains, a
sentencing court generally applies the Sentencing Guidelines in
effect on the date of sentencing, 18 U.S.C. § 3553(a)(4)(A)(ii),
and the FSA was enacted against that statutory background. He
contends that his construction is confirmed by the FSA’s
directive to the Sentencing Commission to conform its Guidelines
to the FSA “as soon as practicable” and by the Sentencing
Commission’s response in promulgating reduced Guidelines ranges,
to be applied retroactively. Moreover, he argues, as a policy
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consideration, the Supreme Court in Dorsey recognized that the
FSA was enacted to eliminate disparities and application of the
FSA through § 3582(c)(2) would eliminate disparities. As he
states:
It follows from the reasoning of Dorsey that Congress
intended that the Fair Sentencing Act’s more lenient
mandatory minimums also apply in § 3582(c)(2)
proceedings based on the retroactive FSA guideline
amendments.
While Black’s logical development is neat, it overlooks and
therefore fails to address legal realities. First, there is no
language in the FSA explicitly providing or even suggesting that
it be applied retroactively. Second, Dorsey resolved a tension
between 1 U.S.C. § 109 and 18 U.S.C. § 3553(a)(4) with reasoning
that would not apply to a sentence-modification proceeding under
§ 3582(c)(2). Third, without precedential support from Dorsey,
Black is bound by our decision in Bullard, which held that the
FSA is not retroactive. And fourth, a § 3582(c)(2) proceeding
is not a sentencing proceeding as addressed in Dorsey, and,
moreover, the language of § 3582(c)(2) itself limits its
applicability to the situation where the defendant was sentenced
based on a sentencing range that subsequently was reduced by the
Sentencing Commission. We address the second, third, and fourth
points in further detail.
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A
In construing the FSA, the Dorsey Court was faced with the
task of resolving the tension between the principles inherent in
two statutes that seemed to pull in opposite directions.
Section 109 of Title 1, which is a statute of general
applicability, provides, as the Dorsey Court described it, that
“a new criminal statute that repeals an older criminal statute
shall not change the penalties incurred under that older statute
unless the repealing Act shall so expressly provide.” Dorsey,
132 S. Ct. at 2330 (internal quotation marks and alterations
omitted). Section 3553(a)(4)(A)(ii) of Title 18, on the other
hand, provides, again as the Dorsey Court described it, that
“regardless of when the offender’s conduct occurs, the
applicable Guidelines are the ones in effect on the date the
defendant is sentenced.” Id. at 2331 (internal quotation marks
omitted). The Court observed that the language of these
statutes “argues in opposite directions.” Id. at 2230. In
resolving the tension, the Court concluded that Congress, in
enacting the FSA, clearly understood and accepted the existing
principles of § 3553(a), as it specifically instructed the
Sentencing Commission to promulgate new Guidelines “as soon as
practicable.” Thus, the Court reasoned that Congress intended
that the FSA apply to all those who had not yet been sentenced
even though their crimes may have been committed before the Act.
8
Id. at 2331. Moreover, it observed that this conclusion
eliminated an undesirable disparity, noting that two different
defendants accountable for the same quantity of crack cocaine
and sentenced on the same day after the effective date of the
FSA -- one for a crime committed before the Act’s effective date
and one for a crime committed after -- should be subject to the
same law at sentencing. Id. at 2333. In essence, the Court
held that the FSA should be applied prospectively to all
sentences imposed after the Act’s effective date of August 3,
2010. Id. at 2335.
While the Court’s interpretation of the FSA eliminated
disparities among all defendants sentenced after the effective
date, it recognized that its construction would leave in place
disparities between defendants sentenced before the effective
date of the FSA and defendants sentenced after. Dorsey, 132 S.
Ct. at 2335. The Court reasoned that some disparity is
inevitable when Congress changes the penalty for a crime. Id.
In this case, Black was sentenced in 2007, before the 2010
effective date of the FSA, and therefore cannot rely on Dorsey’s
reasoning. Any efforts by Black to broaden Dorsey’s holding by
arguing that the FSA applies generally to reduce the sentences
of all persons having received statutory minimum sentences at
any time before the effective date of the FSA are not supported
9
by any statute or case law. Indeed, our decision in Bullard
precludes such efforts.
B
In Bullard, we held “that the FSA does not apply
retroactively.” Bullard, 645 F.3d at 249. The defendant there
committed a crime before the effective date of the FSA and was
also sentenced before the effective date, just as is the case
here, and we limited our holding to those circumstances.
Indeed, we specifically noted, “We do not address the issue of
whether the FSA could be found to apply to defendants whose
offenses were committed before August 3, 2010, but who have not
yet been sentenced, as that question is not presented here.”
Id. at 248 n.5 (emphasis added). Likewise, the Dorsey Court
expressly noted that it was not extending its relief to
individuals sentenced before the FSA’s effective date:
We also recognize that application of the new minimums
to pre-Act offenders sentenced after August 3 will
create a new set of disparities. But those
disparities, reflecting a line-drawing effort, will
exist whenever Congress enacts a new law changing
sentences (unless Congress intends re-opening
sentencing proceedings concluded prior to a new law's
effective date). We have explained how in federal
sentencing the ordinary practice is to apply new
penalties to defendants not yet sentenced, while
withholding that change from defendants already
sentenced. [C]ompare 18 U.S.C. § 3553(a)(4)(A)(ii)
with § 3582(c).
* * *
10
We consequently conclude that this particular new
disparity (between those pre-Act offenders already
sentenced and those not yet sentenced as of August 3)
cannot make a critical difference.
Dorsey, 132 S. Ct at 2335 (citation omitted).
Since Dorsey was decided, we have twice concluded that it
did not overrule our decision in Bullard. In United States v.
Mouzone, 687 F.3d 207, 222 (4th Cir. 2012), we held, citing both
Dorsey and Bullard, that the FSA “applies retroactively only to
‘offenders whose crimes preceded August 3, 2010, but who are
sentenced after that date.’” (Emphasis added). Likewise, in
United States v. Allen, 716 F.3d 98, 107 (4th Cir. 2013), we
stated that “our holding in Bullard -- that the Fair Sentencing
Act does not have retroactive effect -- is limited [by Dorsey]
to the extent that the Fair Sentencing Act does apply to all
sentences handed down after its enactment.”
C
Black attempts to distinguish our Bullard line of
precedents by noting that those cases involved direct appeals of
the defendants’ initial sentences, whereas his case involves a
motion under 18 U.S.C. § 3582(c)(2). He argues that his
§ 3582(c)(2) motion initiated a new sentencing proceeding to
which the FSA would apply under Dorsey, because the “new”
sentencing proceeding took place after the effective date of the
FSA.
11
In making this argument, he acknowledges that his
§ 3582(c)(2) proceeding, which allows for limited modifications,
was not a “plenary resentencing.” But he argues:
A sentence “modification” under § 3582(c) bears many
of the hallmarks of an initial sentencing: the
district court must calculate the advisory guideline
range in light of the amended guideline provisions, it
must consider the statutory sentencing factors set out
at 18 U.S.C. § 3553(a), and it must exercise
discretion to determine what sentence to impose in
light of these factors. See U.S.S.G. § 1B1.10,
§ 3582(c)(2). Especially in cases where a defendant
received a substantial assistance departure initially,
the district court enjoys substantial latitude in the
manner and means of calculating what reduction, if
any, to grant the defendant.
This argument overlooks the fact that Black is serving a
statutory minimum sentence that was imposed on him in 2007,
before the 2010 effective date of the FSA, and that the
reasoning of Dorsey, applying the FSA to sentences imposed after
its effective date, referred to initial sentencings, as the
Court alluded to the relationship between the criminal act and
the sentence, not to subsequent proceedings to modify the
sentence. See, e.g., Dorsey, 132 S. Ct. at 2331-32, (referring
to the imposition of penalties for a crime when discussing the
tension between 1 U.S.C. § 109 and 18 U.S.C. §
3553(a)(4)(A)(ii)); see also id. at 2335 (referring to the
disparity left by its decision as “between those pre-Act
offenders already sentenced and those not yet sentenced as of
August 3” (emphasis added)). Black’s § 3582(c)(2) motion is an
12
effort to modify a preexisting sentence, imposed in 2007, and
Black fails to explain how his 2007 sentence could be changed
without a retroactive application of the FSA.
Moreover, Black’s ability to obtain modification under
§ 3582(c)(2) of an earlier entered sentence would have been
available only if his 2007 sentence were “based on a sentencing
range that ha[d] subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C.
§ 3582(c)(2) (emphasis added). That gate of opportunity was
thus open only under conditions that Black did not satisfy --
his sentence was not based on “a sentencing range” that the
Sentencing Commission subsequently lowered. He was originally
sentenced to a statutory minimum sentence fixed by Congress in
21 U.S.C. § 841(b)(1), and the Sentencing Commission did not
change, nor purport to change, that statutory minimum sentence.
Indeed, it had no authority to change any statutory minimum
fixed by congressional enactment.
This is explicitly recognized by the Sentencing
Commission’s policy statement applicable to § 3582(c)(2)
proceedings. See 18 U.S.C. § 3582(c)(2) (providing that any
reduction under § 3582(c)(2) must be “consistent with applicable
policy statements issued by the Sentencing Commission”).
U.S.S.G. § 1B1.10, the applicable policy statement, specifies
that a defendant is not eligible for § 3582(c)(2) relief where
13
his Guideline range has not been lowered “because of the
operation of another guideline or statutory provision (e.g., a
statutory mandatory minimum term of imprisonment).” U.S.S.G.
§ 1B1.10 cmt. n.1(A) (emphasis added). “Together, § 3582(c)(2)
and the Policy Statement make clear that a defendant whose
offense of conviction involved crack is eligible for a reduced
sentence only if [the amendment] lowers the defendant’s
applicable guideline range.” United States v. Munn, 595 F.3d
183, 187 (4th Cir. 2010).
The Sentencing Commission also made this point clear when
issuing Guideline Amendment 759, which made the primary
Guideline Amendment implementing the FSA (Amendment 750)
retroactive. The Commission stated that “[t]he Fair Sentencing
Act of 2010 did not contain a provision making the statutory
changes retroactive. . . . [T]he inclusion of Amendment 750
(Parts A and C) in § 1B1.10(c) only allows the guideline changes
to be considered for retroactive application; it does not make
any of the statutory changes in the Fair Sentencing Act of 2010
retroactive.” U.S.S.G. App. C Amend. 750 (2011) (emphasis
added).
In this case, Black’s 120-month sentence was the minimum
required by statute at the time he was sentenced. Since the
Sentencing Commission did not, nor could not, reduce this
statutorily mandated minimum, Black was “ineligible for a
14
reduction under § 3582(c)(2).” Munn, 595 F.3d at 187; see also
United States v. Hood, 556 F.3d 226, 235-36 (4th Cir. 2009).
III
In sum, we conclude, as we did in Bullard, that the reduced
statutory minimum sentences enacted in the FSA on August 3,
2010, do not apply retroactively to defendants who both
committed crimes and were sentenced for those crimes before
August 3, 2010. See Bullard, 645 F.3d at 249. We also conclude
that a proceeding commenced by the filing of a motion under §
3582(c)(2) is not a sentencing proceeding to which the holding
of Dorsey applies. See United States v. Blewett, __ F.3d __,
No. 12-5226(L), 2013 WL 6231727, *8-10 (6th Cir. Dec. 3, 2013)
(en banc) (“[A] mandatory minimum subsequently lowered by
Congress is not, as § 3582(c)(2) requires, a ‘sentencing range .
. . subsequently . . . lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o)’” (omissions in original));
United States v. Kelly, 716 F.3d 180, 182 (5th Cir. 2013) (“We
thus join our sister circuits in declining to treat a §
3582(c)(2) modification hearing as the equivalent of an original
sentencing hearing under Dorsey”); United States v. Hammond, 712
F.3d 333, 336 (6th Cir. 2013) (same); United States v.
Augustine, 712 F.3d 1290, 1295 (9th Cir. 2013) (same); United
States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012) (same).
15
Finally, we conclude, as we stated in Munn, that a defendant who
has been convicted of a crack cocaine offense and given a
statutory minimum sentence is “ineligible for a reduction under
§ 3582(c)(2).” Munn, 595 F.3d at 187; see also Hood, 556 F.3d
at 235-36.
In reaching these conclusions, we recognize that a
discrepancy remains between those sentenced to statutory minimum
sentences under 21 U.S.C. § 841(b) before August 3, 2010, the
effective date of the FSA, and those sentenced after. But such
a discrepancy, “reflecting a line-drawing effort, will exist
whenever Congress enacts a new law changing sentences,” Dorsey,
132 S. Ct. at 2335, and any unfairness resulting from such a
discrepancy is “beyond the province of this court to resolve,”
Augustine, 712 F.3d at 1295.
Accordingly, the judgment of the district court is
AFFIRMED.
16
KING, Circuit Judge, concurring:
Bound by our decision in Bullard, I join in Judge
Niemeyer’s opinion for the Court. I write separately to express
my regret that controlling precedent compels such an unfair
result. Prior to the FSA, Congress’s insistence on unduly harsh
mandatory minimum sentences for nonviolent crack-cocaine
offenders — even after such sentences were widely acknowledged
to be racially discriminatory — was a grim misfire in the war on
drugs. Remnants of the injustice thus occasioned will persist
as the result of our opinion today.
Fortunately, the Supreme Court’s decision in Dorsey does
not foreclose the hope that Bullard could one day be abrogated.
As Judge Niemeyer’s opinion makes clear, Dorsey stopped short of
deciding whether a defendant sentenced under the old regime may
avail himself of an FSA-reduced mandatory minimum. The Dorsey
decision therefore left open the possibility that the Court will
confront that retroactivity issue in a subsequent case. The
Court could yet be persuaded — as am I — by Black’s contention
that the reasoning underlying Dorsey applies with equal force to
defendants such as him. Others have made known their similar
views. See United States v. Blewett, ___ F.3d ___, No. 12-
5226(L), 2013 WL 6231727, at *36-38 (6th Cir. Dec. 3, 2013) (en
banc) (Rogers, J., dissenting).
17
Otherwise, I join the call for congressional and executive
action following through on the noble promise of the FSA: to
“restore fairness to Federal cocaine sentencing.” See Pub. L.
111-220, 124 Stat. 2372, 2372. There is nothing fair about the
ongoing plight of thousands of crack-cocaine offenders who yet
languish in our prison system, serving sentences based largely
on race-based misperceptions, rather than on the gravity of
their criminal conduct.
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