United States v. Keith Thompson, Jr. ( 2013 )


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  •                      RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 13a0127p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    Plaintiff-Appellee, -
    UNITED STATES OF AMERICA,
    -
    -
    -
    No. 12-4118
    v.
    ,
    >
    -
    Defendant-Appellant. -
    KEITH THOMPSON, JR.,
    N
    Appeal from the United States District Court
    for the Northern District of Ohio at Cleveland.
    No. 1:05-cr-00598-1—Donald C. Nugent, District Judge.
    Decided and Filed: May 6, 2013
    Before: BATCHELDER, Chief Judge; GUY and BOGGS, Circuit Judges.
    _________________
    COUNSEL
    ON BRIEF: Melissa M. Salinas, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
    Toledo, Ohio, for Appellant. Linda H. Barr, UNITED STATES ATTORNEY’S
    OFFICE, Akron, Ohio, for Appellee.
    _________________
    OPINION
    _________________
    RALPH B. GUY, JR. Circuit Judge. In January 2012, Thompson filed a motion
    for sentence reduction pursuant to 
    18 U.S.C. § 3582
    (c)(2) based on Amendments
    706 and 750 of the United States Sentencing Guidelines. The district court denied the
    motion and Thompson appealed. On appeal, we remanded the case to “allow the district
    court to consider whether our recent decision in United States v. Jackson, 
    678 F.3d 442
    (6th Cir. 2012), ha[d] any impact on Thompson’s case.” The district court concluded it
    did not. We agree and affirm.
    1
    No. 12-4118            United States v. Thompson                                          Page 2
    I.
    On April 11, 2006, pursuant to a non-binding plea agreement, Thompson pleaded
    guilty to three counts of possessing crack cocaine with the intent to distribute in
    violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(C). In exchange, the government
    dismissed the two remaining counts against Thompson and agreed that it would not
    oppose Thompson’s request for a “downward departure or variance [that] would result
    in a sentence of not less than 120 months.” The district court sentenced Thompson to
    120 months of imprisonment with three years of supervised release.
    The sentencing transcript reflects the following: Thompson would have had a
    base offense level of 24 under U.S.S.G. § 2D1.1 (the “crack cocaine guidelines”).
    However, because he was deemed a career offender, Thompson’s actual base offense
    level was 32 under U.S.S.G. § 4B1.1 (the “career offender guidelines”). The judge
    granted a downward departure to 29 to reflect Thompson’s acceptance of responsibility.
    The court found that the guidelines sentencing range was 151-188 months because
    Thompson’s criminal history category was VI. After considering the factors contained
    in 
    18 U.S.C. § 3553
    (a), the judge ultimately sentenced Thompson to 120 months of
    imprisonment.        Such sentence was the same sentence contemplated by the plea
    agreement.
    On remand, the district court read Jackson to mean that a defendant may be
    eligible for a sentence reduction, pursuant to § 3582(c)(2), “when the crack cocaine
    guidelines were ‘a relevant part of the analytic framework’ used when determining the
    original sentence, and/or when the sentence was based, even in part, on the crack cocaine
    sentencing guidelines.” The district court determined that the crack cocaine guidelines
    were not relevant to Thompson’s sentence calculation. Rather, Thompson’s sentence
    was based on his status as a career offender so there was no basis to grant his
    § 3582(c)(2) motion.1 The court also noted that it considered Thompson “to be a risk
    1
    The district court noted:
    Neither the career offender guidelines, which were used to calculate
    Mr. [Thompson’s] base offense level and applicable sentencing
    range, nor any suggested or agreed sentence within the plea
    No. 12-4118          United States v. Thompson                                          Page 3
    to the community and would not exercise its discretion to lower his sentence even if a
    reduction were allowable under the new sentencing guidelines.”
    Thompson argues on appeal that he was eligible for a reduced sentence under
    § 3582(c)(2) because the crack cocaine guidelines informed both the sentencing range
    contemplated by the plea agreement and the ultimate sentence that the district court
    imposed. Thompson also argues that, assuming he is eligible for a sentence reduction,
    the district court erred in failing to examine the 
    18 U.S.C. § 3553
    (a) factors as required
    by 
    18 U.S.C. § 3582
    (c)(2).
    II.
    “Generally speaking, once a court has imposed a sentence, it does not have the
    authority to change or modify that sentence unless such authority is expressly granted
    by statute.” United States v. Curry, 
    606 F.3d 323
    , 326 (6th Cir. 2010) (citations
    omitted). One such statutory exception is found in 
    18 U.S.C. § 3582
    (c)(2), which allows
    the court to reduce a prison sentence 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
    . . . 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.
    
    Id.
    As the Supreme Court has noted, this section provides a two-step inquiry. Dillon
    v. United States, 
    130 S. Ct. 2683
    , 2691 (2010). The court must first determine that the
    defendant is eligible for a reduction in his sentence. 
    Id.
     To be eligible, two conditions
    must be fulfilled:
    agreement was affected by subsection (c) or by the guideline
    amendments set forth in the Fair Sentencing Act. Therefore, neither
    Mr. [Thompson’s] applicable guideline range, nor his actual sentence
    was affected by the changes to the crack cocaine guidelines and he is
    not eligible for reduction under the Fair Sentencing Act.
    No. 12-4118           United States v. Thompson                                     Page 4
    (1) the defendant was sentenced to a term of imprisonment based on a
    sentencing range that has been lowered by the Commission pursuant to
    
    28 U.S.C. § 994
    (o); and [2] the reduction is consistent with the
    Commission's applicable policy statements. 
    18 U.S.C. § 3582
    (c)(2). The
    applicable policy statements provide, in part, that “[a] reduction in the
    defendant's term of imprisonment is not consistent with this policy
    statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if
    . . . [a]n amendment . . . does not have the effect of lowering the
    defendant's applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
    United States v. Williams, __ F. App’x __, No. 12-3353, 
    2013 WL 331579
    , at *2 - 3 (6th
    Cir. Jan. 30, 2013) (second alteration in original). The court may then “consider whether
    the authorized reduction is warranted, either in whole or in part, according to the factors
    set forth in § 3553(a).” Dillon, 
    130 S. Ct. at 2691
    .
    If a district court “concludes that it lacks the authority to reduce a defendant's
    sentence under the statute, the district court's determination that the defendant is
    ineligible for a sentence reduction is a question of law that is reviewed de novo.” Curry,
    
    606 F.3d at 327
    . “[T]he district court's decision to modify a sentence under § 3582(c)(2)
    is discretionary and, as such, is reviewed by this Court for abuse of discretion.” Id.
    (citation omitted).
    Thompson argues that two recent decisions—Freeman v. United States, 
    131 S. Ct. 2685
     (2011), and United States v. Jackson, 
    678 F.3d 442
     (6th Cir. 2012)—compel
    this court to hold that his sentence is eligible for reduction because his sentence was
    “based on” the crack cocaine guidelines. These cases are inapposite.
    At issue in Freeman was whether the defendant’s sentence, which was entered
    pursuant to a binding Rule 11(c)(1)(C) plea agreement, satisfied § 3582(c)(2)’s
    requirement that the sentence be “based on” the guidelines range. Because Freeman was
    a plurality decision, we recognize that Justice Sotomayor’s concurrence constitutes the
    applicable holding, as it is the narrowest grounds for the decision. United States v.
    Smith, 
    658 F.3d 608
    , 611 (6th Cir. 2011). That concurrence held that, “when a [Rule
    11(c)(1)](C) agreement expressly uses a Guidelines sentencing range to establish the
    term of imprisonment, and that range is subsequently lowered by the Commission, the
    No. 12-4118           United States v. Thompson                                               Page 5
    defendant is eligible for sentence reduction under § 3582(c)(2).” Freeman, 
    131 S. Ct. at 2698
     (Sotomayor, J., concurring).
    Freeman was concerned with whether the sentencing range contemplated by a
    binding plea agreement was “based on” the guidelines. However, “in the normal
    course[,] the district judge's calculation of the Guidelines range applicable to the charged
    offenses will serve as the basis for the term of imprisonment imposed.” 
    Id. at 2695
    .
    Certainly, the district court based Thompson’s sentence on some part of the guidelines;
    the issue (which Freeman does not address) is whether such sentence was based on the
    crack cocaine guidelines and whether Amendment 750 would have the effect of
    lowering his applicable guideline range. See 
    18 U.S.C. § 3582
    (c)(2) and U.S.S.G.
    § 1B1.10(a)(2)(B). Freeman is of little relevance.
    Thompson also relies on United States v. Jackson for his argument that he is
    eligible for a sentence reduction under § 3582(c)(2). Like Thompson, the Jackson
    defendant pleaded guilty to intending to distribute crack cocaine. And, also like
    Thompson, Jackson qualified as a career offender, which meant his sentencing range was
    based on the career offender guidelines.              Jackson is distinguishable because, at
    sentencing, the district court granted Jackson a downward variance specifically because
    of the “‘untenable’ disparity in the crack versus powder cocaine sentences.” 
    678 F.3d at 444
    . There is no evidence that either the crack cocaine guidelines or the crack/powder
    disparity, generally, played a role in Thompson’s sentencing.2 As a result, Jackson does
    not control. See also United States v. Tillman, No. 12-1557, 
    2013 WL 150112
    , at *2
    (6th Cir. Jan. 15, 2013) (unpublished decision); United States v. Williams, No. 12-3353,
    
    2013 WL 331579
    , at *4 (6th Cir. Jan. 30, 2013) (unpublished decision) (both
    distinguishing Jackson on similar grounds).
    Thompson also argues that the 120-month sentence contemplated by the plea
    agreement and imposed by the district court was established by splitting the difference
    between the crack cocaine guidelines in § 2D1.1 and the career offender guidelines in
    2
    We also note that Jackson never filed a motion pursuant to § 3582(c)(2) and, as a result, the
    Jackson court did not inquire into that section’s various eligibility requirements.
    No. 12-4118           United States v. Thompson                                                 Page 6
    § 4B1.1. Specifically, Thompson argues that, “while the basis for the 120-month
    sentence was not stated explicitly, the relevant calculations indicate that the sentence
    imposed was a compromise between the career offender and crack guidelines.”
    We are unable to draw the inference that Thompson suggests. As Justice
    Sotomayor stated in her Freeman concurrence, “[t]o ask whether a particular term of
    imprisonment is ‘based on’ a Guidelines sentencing range is to ask whether that range
    serves as the basis or foundation for the term of imprisonment.” 
    131 S. Ct. at 2695
    . The
    court will consider “what the district court actually said and did at the original
    sentencing” to determine the basis for sentencing. United States v. Hameed, 
    614 F.3d 259
    , 264 (6th Cir. 2010) (internal quotation marks and citation omitted).
    There is nothing in Thompson’s sentencing transcript that indicates that the crack
    cocaine guidelines were used to establish the 120-month term. Rather, the district
    court’s downward variance was done pursuant to the factors listed in 
    18 U.S.C. § 3553
    (a), none of which related to the crack/powder disparity. The fact that the district
    court acknowledged that the sentence contemplated by the plea agreement was
    “sufficient and not greater than necessary to comport with the statutory purposes of
    punishment, deterrence and safety to the community” is insufficient, standing alone, to
    infer that the court’s sentence was “based on” the crack cocaine guidelines. 
    Id.
    As the district court held, because Thompson was sentenced pursuant to U.S.S.G.
    § 4B1.1 (as a career offender), “neither Mr. [Thompson’s] applicable guideline range,
    nor his actual sentence was affected by the changes to the crack cocaine guidelines and
    he is not eligible for reduction under the Fair Sentencing Act.” We agree.3 Because the
    amendment in question has no effect on the ultimate sentencing range imposed on
    Thompson under the career offender guidelines, the district court did not err in declining
    to grant his § 3582(c)(2) motion. See United States v. Perdue, 
    572 F.3d 288
    , 293 (6th
    Cir. 2009). Furthermore, the district court’s original calculation of Thompson’s
    3
    United States v. Tillman is in accord with this determination. 
    2013 WL 150112
    , at *2 (holding
    that “[a] defendant whose sentence is based upon the career offender sentencing guideline cannot benefit
    from Amendment 750 because that amendment did not lower the career offender sentencing guidelines
    range”).
    No. 12-4118       United States v. Thompson                                    Page 7
    sentencing range under the crack cocaine guidelines does not change the outcome.
    Thompson’s status as a career offender essentially trumped the range established under
    the crack cocaine guidelines. As a result, Thompson’s sentence was not “based on” the
    crack cocaine guidelines. See Hameed, 
    614 F.3d at
    262 (citing United States v. Gillis,
    
    592 F.3d 696
    , 699 (6th Cir. 2009)).
    AFFIRMED.