United States v. DeShawn Sims , 386 F. App'x 546 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0431n.06
No. 09-1783 FILED
Jul 15, 2010
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DESHAWN SIMS, EASTERN DISTRICT OF MICHIGAN
Defendant-Appellant. OPINION
/
BEFORE: BOGGS and CLAY, Circuit Judges; and WISEMAN, District Judge.*
CLAY, Circuit Judge. Defendant, DeShawn Sims, appeals from his reduced sentence
entered by the district court pursuant to 18 U.S.C. § 3582(c) on May 22, 2009. Upon Defendant’s
motion, the district court reduced his previously imposed sentence of 210 months for possession and
distribution of cocaine and cocaine base to 168 months’ incarceration. He argues that the district
court had the authority under United States v. Booker, 543 U.S. 220 (2005) to conduct a full
sentencing hearing and to consider as advisory the amended guidelines range for cocaine base
offenses. See U.S.S.G. Supp.App. C, Amdts. 706 and 713 (reducing applicable offense levels for
*
The Honorable Thomas A. W iseman, Jr., United States District Judge for the Middle District of Tennessee,
sitting by designation.
No. 09-1783
certain cocaine base offenses). For the reasons set forth in this opinion, we AFFIRM the district
court’s judgment.
BACKGROUND
Defendant was convicted following a jury trial in March 2000 of one count of distribution
of a controlled substance and one count of possession with intent to distribute a controlled substance,
in violation of 21 U.S.C. § 841, and two counts of aiding and abetting in the possession with intent
to distribute a controlled substance, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. He was
sentenced to 262 months’ incarceration. Following habeas proceedings pursuant to 28 U.S.C. §
2255, Defendant was resentenced to 210 months’ incarceration.
After the Sentencing Commission promulgated amendments 706 (lowering the guidelines
ranges for certain cocaine base offenses by lowering the offense level by two) and 713 (making
amendment 706 retroactive), Defendant filed a motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c) in March 2008. He requested to be sentenced at the low end of the amended guidelines
range, which the district court did in sentencing Defendant to 168 months’ incarceration. This timely
appeal followed.
DISCUSSION
I. Standard of Review
Because this appeal presents a question of law, our standard of review ordinarily would be
de novo. United States v. Carter, 500 F.3d 486, 488 (6th Cir. 2007). However, because Defendant
did not raise his Booker challenge during the § 3582 proceeding, the government argues that
Defendant has waived this issue by not presenting it to the trial court. See United States v. Hayes,
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No. 09-1783
218 F.3d 615, 619 (6th Cir. 2000). We retain jurisdiction to consider whether a plain error has
occurred, id. at 619-20, and may review this challenge for plain error.
II. Analysis
Once a sentence has become final, a district court is without power to impose a new sentence,
except in a few limited circumstances such as those described in 18 U.S.C. § 3582(c). That section
provides that a district court may modify a sentence
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 pursuant to 28 U.S.C. 994(o) . . . 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). The Sentencing Commission issued a policy statement, § 1B1.10, to guide
district courts in reducing sentences, pursuant to several amendments including amendment 706.
That section states, in relevant part, that “the court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that is less than the
minimum of the amended guideline range determined under subdivision (1) of this subsection.”
U.S.S.G. § 1B1.10(b)(2)(A). This policy statement effectively makes the amended guidelines range
the mandatory lower boundary of the sentencing reduction permitted pursuant to § 3582(c).
Defendant asks this Court to find the policy statement in § 1B1.10(b)(2)(A) unconstitutional
in light of the interpretation of the Sixth Amendment in Booker, which made the sentencing
guidelines advisory for original sentences. See Booker, 543 U.S. at 259. However, clear precedent
from this Circuit and from the Supreme Court forecloses this argument. Dillon v. United States, ---
U.S. ---, 2010 WL 2400109 at *7 (2010) (“Accordingly, [Defendant’s] Sixth Amendment rights were
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No. 09-1783
not violated by the District Court’s adherence to the instruction in § 1B1.10 to consider a reduction
only within the amended Guidelines range.”); United States v. Washington, 584 F.3d 693, 701 (6th
Cir. 2009) (“We hold that pursuant to 18 U.S.C. § 3582(c)(2), a district court is not authorized to
reduce a defendant’s sentence below the amended Guidelines range.”).
Defendant was sentenced to 168 months’ incarceration, which is the bottom of the guidelines
range that he is subject to under the cocaine base amendments. His Sixth Amendment rights were
not implicated in the § 3582(c) proceeding, and the district court did not have the authority to reduce
his sentence below the amended guidelines range. Therefore, Defendant’s appeal is without merit
regardless of our standard of review.
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s order reducing Defendant’s
sentence to 168 months’ incarceration.
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