United States v. Robinson ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7128
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERRON ROBINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:04-cr-00501-TSE-1)
Argued: September 23, 2010 Decided: February 4, 2011
Before GREGORY and AGEE, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Voorhees wrote the
majority opinion, in which Judge Agee joined. Judge Gregory
wrote a dissenting opinion.
ARGUED: Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Stephen Wiley Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Lawrence J. Leiser, Assistant
United States Attorney, Lore A. Unt, Special Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
VOORHEES, District Judge:
Appellant-Defendant Erron Robinson appeals the district
court’s denial of a motion for reduction of sentence pursuant to
18 U.S.C. § 3582(c)(2) based upon retroactive application of
Amendment 706 to the United States Sentencing Guidelines, which
altered the drug quantity table set forth in U.S.S.G. § 2D1.1 to
effectively lower the base offense level for offenses involving
crack cocaine by two levels. Robinson argues on appeal that the
district court’s failure to articulate his rationale in greater
detail amounts to an abuse of discretion. Defendant advocates
for remand to the district court for further explanation. For
the reasons stated herein, we affirm the district court.
I.
In June 2005, Robinson pled guilty to violations of 21
U.S.C. § 841(a)(1) (Count II) and 18 U.S.C. § 924(c) (Count
III). 1 On November 4, 2005, Robinson was sentenced to 132 months
on the drug offense plus 60 months on the gun offense,
Robinson was originally indicted with co-conspirator, Alex
1
Wilson, in a five-count Superseding Indictment on April 7, 2005.
Count One alleged a conspiracy to possess with intent to
distribute 50 grams or more of a substance containing a
detectable amount of cocaine base, commonly known as “crack”
cocaine. Robinson ultimately pled guilty and accepted
responsibility for possession with intent to distribute 5 or
more grams of crack cocaine.
3
consecutive to the sentence imposed on Count II, for a total
term of 192 months imprisonment.
In arriving at the original sentence, the sentencing judge
noted the advisory guideline range (168-210 months for the
substantive drug offense), but elected to impose a variant
sentence based upon the history and characteristics of the
defendant, the need for deterrence, and the need to avoid
unwarranted disparities in sentencing. 2 (J.A. 86-90) The defense
was unsuccessful in its attempt to have the Court adjust
Robinson’s criminal history category based upon his juvenile
record. However, Defense counsel made persuasive arguments
about the history and characteristics of the Defendant,
particularly, Robinson’s youth (age 19) and his prior criminal
history, which was comprised solely of juvenile adjudications.
(J.A. 75, 80-84, 91, 133-38) The variance resulted in a sentence
on the drug offense 36 months below the bottom of the advisory
guideline range. Judgment was entered on November 4, 2005.
In December 2008, Robinson sought a reduction of sentence
pursuant to Amendment 706 and 18 U.S.C. § 3582(c)(2). 3 On June 1,
2009, the district court denied the motion.
2
The 2004 Edition of the United States Sentencing
Guidelines was used in calculating Defendant’s advisory
guideline sentence.(¶70 PSR)
3 Amendment 706 to the United States Sentencing Guidelines
4
Robinson filed a timely appeal. Our jurisdiction arises
out of 18 U.S.C. § 3742. See United States v. Legree, 205 F.3d
724, 727 (4th Cir. 2000) (appeals of § 3582 (c)(2) rulings are
governed by 18 U.S.C. § 3742(a)(1)); United States v. Bowers,
615 F.3d 715, 722-23 (6th Cir. 2010).
II
We review the district court’s decision to deny relief
pursuant to 18 U.S.C. § 3582(c)(2) for an abuse of discretion.
United States v. Goines, 357 F.3d 469, 478 (4th Cir. 2004).
III.
We first consider generally the requisite level of
justification in explaining the denial of a Section 3582 motion.
Section 3582(c)(2), which supplies the statutory authority for
the relief sought here, establishes an exception to the general
rule of finality that governs criminal judgments of conviction.
See Dillon v. United States, 130 S. Ct. 2683, 2690 (2010); 18
U.S.C. § 3582(b). Accordingly, we emphasize that proceedings to
modify sentence under Section 3582 are limited in nature and,
“altered the drug quantity table set forth in U.S.S.G. § 2D1.1
to effectively lower the base offense level for offenses
involving crack cocaine by two levels.” United States v. Dunphy,
551 F.3d 247, 249 (4th Cir. 2009).
5
therefore, are not intended to be full resentencings. As the
Supreme Court recently explained in Dillon, “Section
3582(c)(2)'s text, together with its narrow scope, shows that
Congress intended to authorize only a limited adjustment to an
otherwise final sentence and not a plenary resentencing
proceeding.” Dillon, 130 S. Ct. at 2691. Like Section 3582,
U.S.S.G. § 1B1.10(a)(3) expressly identifies the same
limitation, namely, that proceedings under 18 U.S.C. §
3582(c)(2) and this policy statement do not constitute a full
resentencing of the defendant. U.S.S.G. § 1B1.10(a)(3). In
addition, as Dillon makes clear, Section 3582(c)(2) proceedings
“do not implicate the interests identified in Booker,” because
Booker involved application of the guidelines at an original
sentencing. Dillon, 130 S. Ct. at 2692; Bowers, 615 F.3d at 727.
As a result, our Section 3582(c)(2) analysis is limited to
this two-step inquiry: “A court must first determine that a
reduction is consistent with [§]1B1.10 before it may consider
whether the authorized reduction is warranted, either in whole
or in part, according to the factors set forth in §3553(a).” 4
Dillon, 130 S. Ct. at 2691.
4 Under 18 U.S.C. § 3553(a), “[t]he court, in determining
the particular sentence to be imposed, shall consider –
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed –
6
Prior to Dillon, we held in United States v. Legree, that
in deciding a Section 3582(c)(2) motion, Section 1B1.10(b) of
the Sentencing Guidelines does not require the district court to
engage in this prescribed two-pronged analysis on the record.
See United States v. Legree, 205 F.3d 724, 728-30 (4th Cir.
2000)(affirming denial of § 3582(c)(2) motion for sentence
reduction based upon U.S.S.G., Am. 505). We also held that due
process does not require appointment of counsel beyond direct
appeal or an evidentiary hearing as “[a] motion pursuant to
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available
(4) the kind of sentence and the sentencing range
established for –
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines . . .
(5) any pertinent policy statement –
(A) issued by the Sentencing Commission . . . subject
to any amendments made to
such policy statement by act of
Congress . . .
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a).
7
[§]3582(c) is not a do-over of an original sentencing proceeding
where a defendant is cloaked in rights mandated by statutory law
and the Constitution.” Legree, 205 F.3d at 728-29. We further
held that under certain circumstances, a presumption existed
that the sentencing judge considered all pertinent matters in
denying relief. Id. 5 We stated:
“A court need not engage in ritualistic
incantation in order to establish its consideration of
a legal issue. It is sufficient if … the district
court rules on issues that have been fully presented
for determination. Consideration is implicit in the
court’s ultimate ruling.”
Legree, 205 F.3d at 728-29 (quoting United States v. Davis, 53
F.3d 638, 642 (4th Cir. 1995)). More specifically, where the
motion and legal issues are adequately presented, and absent a
contrary indication, we are to presume that the district court
considered all pertinent matters in arriving at a decision. 6 Id.5
During oral argument, Defendant made much of the fact that
Legree relied in part on United States v. Davis, which dealt
with a supervised release violation. 53 F.3d 638, 642 (4th Cir.
1995). We were cognizant of the distinction between supervised
release proceedings and § 3582(c)(2) when we decided Legree but
found the situations analogous notwithstanding. Legree, 205 F.3d
at 728 (internal citations omitted). We are not persuaded
otherwise now. Moreover, in Legree, we also found analogous an
original sentencing decision where we held that a presumption
exists in non-departure cases that, absent “a contrary
indication,” a district court considered the factors enumerated
in 18 U.S.C.A. § 3553(a). Id. at 728-29 (citing United States v.
Johnson, 138 F.3d 115, 119 (4th Cir. 1998)).
6
The legal issues may be deemed adequately presented where
the district judge is fully aware and familiar with the record
8
Significantly, we held that this presumption was not overcome by
sympathetic statements made by the district court during the
original sentencing. Id. at 729.
Our decision in Legree remains good law as we discern
nothing from our reading of Dillon to cast doubt upon the
reasoning adopted in Legree. In sum, due to the “limited
nature” of the proceedings, Section 3582 determinations are not
subject to the same kind of scrutiny as imposition of an
original sentence. Dillon, 130 S. Ct. at 2691-93; United States
v. Dunphy, 551 F.3d 247, 252-53 (4th Cir. 2009) (Booker had no
direct effect on § 3582(c)(2)); Legree, 205 F.3d at 729.
IV.
We turn next to application of the relevant principles in
this case. Here, the judge exercising discretion under Section
3582(c)(2) presided over Robinson’s original sentencing and,
thus, entertained written and oral arguments made by both the
prosecution and defense concerning the § 3553(a) factors and an
appropriate sentence. The sentencing court had access to a
“Statement of Facts” consisting of the Government’s evidentiary
and the Defendant, where the sentencing judge also presided over
the jury trial, and where some of the same factual and legal
issues were presented at the time of original sentencing.
Legree, 205 F.3d at 729.
9
proffer as to the essential elements of the offenses being pled
to, sentencing memoranda from the Government and the defense,
the Presentence Report and Recommendation, and other responsive
materials. (J.A. 30-57) In deciding not to authorize a reduction
of sentence pursuant to § 3582(c)(2), the district court
likewise heard from the Defendant and the Government regarding
the relevant criteria. (J.A. 102-117) The district court was
fully aware and familiar with Robinson’s case. As such, we find
that the issues were adequately presented to the district court.
Because the issues were adequately presented and no contrary
indication exists, we conclude that the presumption adopted in
Legree applies here as well.
Even if the Legree presumption did not apply, the district
court sufficiently explained its analysis. In its Order denying
relief, the district court recited the relevant procedural
history, noting the significance of the fact that at the time of
his original sentencing, Robinson received a 36-month variance
in light of Booker and § 3553(a) factors. (J.A. 118)
The district correctly set forth the applicable law,
focusing on USSG §§ 1B1.10(a)(1) and (b)(2)(B). 7 Section
1B1.10(b)(2)(B) provides as a general rule:
7 Section 1B1.10(a)(1) makes clear that the district court
is faced with a discretionary decision to reduce defendant’s
sentence pursuant to 18 U.S.C. § 3582(c)(2).
10
“[I]f the original term of imprisonment constituted a
non-guideline sentence determined pursuant to 18
U.S.C. § 3553(a) and United States v. Booker, 543 U.S.
200 (2005), a further reduction generally would not be
appropriate.”
The district court then concisely explained his reasoning
for denying the defense motion:
“Such is the case here, as a review of the record, as
well as the factors set forth in 18 U.S.C. [§]3553(a),
confirms that an additional reduction in defendant’s
variant sentence is not warranted ....”
(J.A. 119) Finding this general rule determinative, the
district court explained that if the 2-level reduction was
allowed, “the variant sentence of 132 months imposed on the drug
charge ... was below even the amended guidelines range.” (J.A.
119 n.1) (emphasis in original). We conclude that the district
court more than satisfied Legree.
V.
For the same reasons, we likewise reject Defendant’s
argument that the district court “contravened a Guideline
requirement” in failing to explain expressly whether Defendant’s
early release might pose a danger to any person or to the
community as a whole.
11
Under USSG § 1 B1.10, in evaluating whether to authorize a
reduction of sentence pursuant to 18 U.S.C. § 3582 based upon a
retroactive amendment to the guidelines, a district court:
“shall consider the nature and seriousness of the
danger to any person or the community that may be
posed by a reduction in the defendant’s term of
imprisonment ....”
USSG 1B1.10, comment. (n.1(B)(ii) (public safety consideration))
(emphasis added).
Citing Gall v. United States, Robinson argues that the
district court committed a Gall-like procedural error when it
failed to provide a detailed analysis concerning the public
safety factor. See Gall v. United States, 128 S. Ct. 586 (2009).
Robinson claims that failure to discuss the public safety factor
is akin to a failure to apply the guidelines properly. Robinson
contends that because this factor is set apart from other §
3553(a) factors, at minimum, thorough discussion of this factor
is required. 8 Applying the rule of law announced by the Supreme
Court in Dillon, Gall, like Booker, involved application of the
8 It is worth noting that the district court explicitly
stated that he considered all of the Section 3553(a) factors,
which include public safety, or the need “to protect the public
from further crimes of the defendant.” See 18 U.S.C. §
3553(a)(2)(C), infra n. 4.
12
guidelines at an original sentencing and does not control. 9 See
Dillon, 130 S. Ct. at 2692. Likewise, Defendant’s reliance on
United States v. Carter is misplaced given that Carter involved
review of an original variance sentence as opposed to a
modification or reduction pursuant to § 3582(c)(2). United
States v. Carter, 564 F.3d 325 (4th Cir. 2009).
Rather, consideration of the public safety factor is
implicit in the district court’s ruling. See Legree, 205 F.3d
at 728-29. In this case, there is record evidence that Robinson
was a “central participant” in a violent drug conspiracy and
Robinson possessed firearms (at least a .38-caliber handgun) in
furtherance of his drug trafficking. (J.A. 31-32, 50-52) There
is also evidence that Robinson belonged to a gang called the
Fordson Road Crew, and that members of Robinson’s gang were
involved in a long-running feud with a rival gang. (J.A. 50-51)
Robinson, by his own admission, participated in one or more
shootings where he discharged his weapon and gunshot wounds were
sustained by members of the rival gang. (J.A. 31-32, 53) The
9
Because Gall does not govern § 3582 proceedings, the
district court’s alleged failure to provide sufficient
explanation does not amount to procedural or substantive error
triggering de novo review. United States v. Dunphy, 551 F.3d
247, 250 (4th Cir. 2009)(“The district court’s determination
that it lacked authority to reduce [defendant’s] sentence to a
term below the amended guideline range is a question of law that
we review de novo.)
13
Government’s sentencing memorandum indicates that Robinson,
along with other members of the Fordson Road Crew, chose to
“terrorize his neighborhood through drug dealing and gun
violence.” (J.A. 53) We would be hard-pressed to find that the
record itself did not contain sufficient support for the
district court’s discretionary ruling.
Finally, although only portions of the record are relied
upon by the parties, the district court had access to the entire
record at the time of his decision-making. In other words, the
court had before it a wealth of information within the record
and likely materials beyond those items specifically cited or
included within the Joint Appendix.
VI.
For all of these reasons, we affirm the district court’s
denial of Defendant Robinson’s Section 3582(c)(2) motion. In
doing so, we hold that the decision of the district court, and
the explanation of that decision on the record, is consistent
with our decision in Legree.
AFFIRMED
14
GREGORY, Circuit Judge, dissenting:
I respectfully dissent because I believe courts’ general
duty to explain their reasoning applies to this case, is
supported by case law and statute, and enhances appellate
review. The Supreme Court has reiterated courts’ responsibility
to explicate their decisions in the sentencing context: “a
district judge must give serious consideration to the extent of
any departure from the Guidelines and must explain his
conclusion that an unusually lenient or an unusually harsh
sentence is appropriate in a particular case with sufficient
justifications.” Gall v. United States, 552 U.S. 38, 46 (2007).
Gall linked courts’ responsibility to explain their logic with
the duty to “consider” certain sentencing factors. 552 U.S. at50 n.6, 52, 53.
Similarly, our Court has concluded that “[t]he sentencing
judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking authority.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(emphasis added) (citing Rita v. United States, 127 S. Ct. 2456,
2468 (2007). Otherwise, “a talismanic recitation of the
§ 3553(a) factors without application to the defendant being
sentenced does not demonstrate reasoned decisionmaking or
15
provide an adequate basis for appellate review.” Carter, 564
F.3d at 329 (citing United States v. Stephens, 549 F.3d 459,
466-7 (6th Cir. 2008)).
The applicable statute in this case also requires courts to
rule on sentence reductions “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.” 18 U.S.C.
§ 3582(c)(2) (emphasis added). The term ‘consider’ surely
means the same thing in § 3582(c)(2) as it did in Gall, Carter,
and 18 U.S.C. § 3553(a). Compare 18 U.S.C. § 3582(c)(2) (“the
court may reduce the term of imprisonment, after considering the
factors set forth in section 3553(a) . . .”) (emphasis added),
with 18 U.S.C. § 3553(a) (“The court, in determining the
particular sentence to be imposed, shall consider. . . .”).
Notably, both provisions were originally enacted on the same day
and in nearby sections of the same act. Compare 18 U.S.C.
§ 3582(c)(2) (added Oct. 12, 1984, P.L. 98-473, Title II, Ch II,
§ 212(a)(2), 98 Stat. 1998), with 18 U.S.C. § 3553(a) (added
Oct. 12, 1984, P.L. 98-473, Title II, Ch II, § 212(a)(2), 98
Stat. 1989). “Undoubtedly, there is a natural presumption that
identical words used in different parts of the same act are
intended to have the same meaning.” Atlantic Cleaners & Dyers,
16
Inc. v. United States, 286 U.S. 427, 433 (U.S. 1932) (citations
omitted). Here, by not providing an individualized explanation
for its decision, the district court did not show that it
meaningfully ‘considered’ the motion.
The rationale for requiring courts to explain their
sentencing decisions applies similarly to § 3582(c) and
§ 3553(a). As we stated in Carter, explaining sentencing
decisions “not only ‘allow[s] for meaningful appellate review’
but it also ‘promote[s] the perception of fair sentencing.’” 564
F.3d at 328 (citing Gall, 128 S. Ct. at 597). This is
especially true for sentence reductions made pursuant to the new
crack-cocaine ratio, which was enacted to correct structural
flaws in the law, rather than to inure to the benefit of any
single defendant. See, e.g., Kimbrough v. United States, 552
U.S. 85, 98 (2007) (“the severe sentences required by the
[prior] 100-to-1 ratio [we]re imposed ‘primarily upon black
offenders.’”) (citations omitted). Generally, “Amendment 706
retroactively reduce[s] the base offense level for most crack-
cocaine cases by two levels.” United States v. Fennell, 592
F.3d 506, 509 (4th Cir. 2010). In the occasional case when a
court chooses not to retroactively apply the new ratio, it would
be even more valuable for the court to explain why that
defendant was exceptional.
17
The majority, by contrast, relies on two cases for the
proposition that district courts need not explain their
reasoning with any particularity in sentencing modifications.
Neither is compelling. First, the majority cites United States
v. Legree, for the proposition that a “court need not engage in
ritualistic incantation in order to establish its consideration
of a legal issue.” 205 F.3d 724, 729 (4th Cir. 2000) (quoting
(United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995)). But
that broad holding is cabined by Gall, which requires a judge to
“explain his conclusion that an unusually lenient or an
unusually harsh sentence is appropriate in a particular case
with sufficient justifications.” 552 U.S. at 46. Moreover, our
Court in Carter explicitly rejected just these sorts of
‘ritualistic incantations.’ Carter repeatedly invoked Gall,
while omitting Legree, and concluded that “a talismanic
recitation of the § 3553(a) factors without application to the
defendant being sentenced does not demonstrate reasoned
decisionmaking or provide an adequate basis for appellate
review.” 564 F.3d at 329 (citing United States v. Stephens, 549
F.3d 459, 466-7 (6th Cir. 2008)).
Secondly, the majority relies heavily upon Dillon because
it espoused a “narrow view of [3582(c)(2)] proceedings.” Dillon
v. United States, 130 S. Ct. 2683, 2691 (2010). But nothing in
18
Dillon suggests we should abrogate district courts’ general
responsibility to provide some individualized legal reasoning.
Nor does the majority cite any authority for the proposition
that courts’ duty to explain varies with the “scope” of a
proceeding. To the contrary -- our sister circuits have
continued to require legal explanations in ‘narrower’
proceedings which adjudicated various types of motions. See
e.g., Kicklighter v. United States, 281 Fed. Appx. 926 (11th
Cir. 2008) (motion to vacate, set aside, or correct a sentence);
Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery
Ctr., Inc., 490 F.3d 718, 724 (9th Cir. 2007) (motion to stay);
United States v. Groll, 992 F.2d 755, 760 (7th Cir. 1993)
(motion to withdraw plea); Eizonas, Inc. v. Dollar Sav. & Trust
Co., 1993 U.S. App. LEXIS 31607 (6th Cir. 1993) (motion for
sanctions).
Without at least some specific reasoning for sentencing
reduction decisions, circuit courts will have to start guessing
why district courts reached certain outcomes. The majority does
just that here, speculating about various reasons “implicit in
the district court’s ruling.” Slip op. at 13-14. But “an
appellate court may not guess at the district court’s rationale,
searching the record for statements by the Government or defense
19
counsel or for any other clues that might explain a sentence.”
Carter, 564 F.3d at 329-30.
Ultimately, “[a] body of law is more rational and more
civilized when every rule it contains is referred articulately
and definitely to an end which it subserves and when the grounds
for desiring that end are stated, or are ready to be stated, in
words.” Justice Oliver Wendell Holmes, Address of 1897, quoted
in A Dictionary of Legal Quotations (Simon James, et al., eds.,
1987). Here, the district court should have stated specific
reasons for denying Appellant’s motion to reduce his sentence.
20