United States v. Deshaun Raffles Murphy ( 2009 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 09-1164
    ___________
    United States of America,               *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                                * District Court for the
    * District of Minnesota.
    Deshaun Raffles Murphy,                 *
    *
    Appellant.                 *
    ___________
    Submitted: June 8, 2009
    Filed: August 3, 2009
    ___________
    Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.
    ___________
    COLLOTON, Circuit Judge.
    In 1996, Deshaun Murphy was convicted in federal court of several drug
    trafficking offenses involving crack cocaine. At sentencing, the district court found
    that Murphy was responsible for 800 grams of cocaine base, calculated a guideline
    range of 262 to 327 months’ imprisonment under the then-mandatory sentencing
    guidelines, and sentenced Murphy to 300 months’ imprisonment.1
    1
    The court also sentenced Murphy to a consecutive term of 60 months’
    imprisonment for aiding and abetting the use or carrying of a firearm during and in
    relation to a drug trafficking crime, in violation of 
    18 U.S.C. §§ 2
     and 924(c). That
    aspect of the original sentence is not at issue in this appeal.
    In January 2008, Murphy moved for a reduction in his sentence pursuant to 
    18 U.S.C. § 3582
    (c) and Amendment 706 to the sentencing guidelines, which was
    declared retroactive by the Sentencing Commission. Amendment 706, as modified
    by Amendment 711, changed the drug quantity table set forth at USSG § 2D1.1 to
    reduce the base offense levels for offenses involving crack cocaine by two levels. In
    light of the “new landscape” of sentencing after United States v. Booker, 
    543 U.S. 220
    (2005), and Kimbrough v. United States, 
    128 S. Ct. 558
     (2007), Murphy urged the
    court to consider imposing a sentence at “the low end of the new Guideline range of
    210 months.” He also asked the court to reconsider his base offense level because the
    jury did not make a finding of drug quantity.
    On December 8, 2008, the district court2 granted Murphy’s motion in part. The
    court calculated an amended guideline range of 210 to 262 months’ imprisonment, and
    resentenced Murphy to 240 months’ imprisonment. The court declined to decide
    whether it should treat the amended guideline range as advisory, and stated that it
    would impose the same sentence whether or not it had authority to vary from the
    amended guideline range. The court also rejected Murphy’s argument that the court
    should recalculate the base offense level. On December 19, Murphy moved for
    reconsideration, arguing that he should not have been subject to any mandatory
    minimum sentence. The district court denied the motion on December 23. Acting pro
    se, Murphy filed a notice of appeal, which was docketed by the clerk of the district
    court on January 13, 2009.
    On appeal, Murphy argues that the district court erred in failing to conduct a
    full resentencing or to consider a sentence below the amended guideline range. He
    contends that the court has authority to do so based on the Supreme Court’s holding
    in Booker that the sentencing guidelines are effectively advisory.
    2
    The Honorable David S. Doty, United States District Judge for the District of
    Minnesota.
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    The government’s brief in response questions whether this court lacks
    jurisdiction on the ground that Murphy’s notice of appeal was untimely. After
    briefing, however, Murphy filed a declaration in accordance with Federal Rule of
    Appellate Procedure 4(c)(1), which satisfies us that the appeal is timely. See Sulik v.
    Taney County, 
    316 F.3d 813
    , 814 (8th Cir. 2003).
    Turning to the merits, we review for plain error Murphy’s contention that the
    district court should have reduced his sentence below the amended guideline range,
    because Murphy did not raise this argument in his § 3582(c) motion or in his motion
    for reconsideration.3 Murphy’s argument that the district court should have conducted
    a full resentencing and varied below the amended guideline range is foreclosed by our
    decision in United States v. Starks, 
    551 F.3d 839
     (8th Cir. 2009), cert. denied, 
    129 S. Ct. 2746
     (2009).
    In Starks, we held that Booker did not invalidate the requirement of § 3582(c)
    that any sentence reduction be “consistent with applicable policy statements issued by
    the Sentencing Commission,” and that this limitation posed no constitutional concerns
    under the Sixth Amendment. 
    551 F.3d at 842-43
    . Therefore, the limitations in the
    applicable policy statement, USSG § 1B1.10, on a district court’s authority to reduce
    a sentence in a proceeding under § 3582(c) are “constitutional and enforceable.” 
    551 F.3d at 843
    . For a defendant like Murphy, who was initially sentenced within the
    guideline range, the policy statement provides that the district court may not reduce
    his sentence to “a term that is less than the minimum of the amended guideline range.”
    USSG § 1B1.10(b)(2)(A). Accordingly, the district court lacked authority to reduce
    3
    We need not determine whether Murphy’s notice of appeal properly challenges
    the district court’s first order denying the § 3582(c) motion, as well as the order
    denying his motion for reconsideration, see Fed. R. App. P. 3(c)(1)(B); Greer v. St.
    Louis Reg’l Med. Ctr., 
    258 F.3d 843
    , 846 (8th Cir. 2001), because we would review
    the claim for plain error in either case.
    -3-
    Murphy’s sentence to a term of less than 210 months’ imprisonment, the minimum of
    Murphy’s amended guideline range.
    Murphy contends that we should not follow Starks because it was wrongly
    decided and conflicts with United States v. Mihm, 
    134 F.3d 1353
     (8th Cir. 1998).
    Mihm held that the safety valve provision of 
    18 U.S.C. § 3553
    (f), which allows a
    district court to sentence below the statutory minimum in certain circumstances, could
    apply for the first time at a sentence reduction proceeding under § 3582(c)(2). 
    134 F.3d at 1355-56
    . The court explained that when reducing a sentence pursuant to
    § 3582(c)(2), “the district court must consider all relevant statutory sentencing
    factors,” including § 3553(f). Id. at 1355. Murphy argues that to comply with the
    analysis in Mihm, a district court presented with a § 3582(c) motion must conduct a
    new sentencing hearing at which it considers the factors in 
    18 U.S.C. § 3553
    (a) and
    follows the direction of § 3553(a) to impose a sentence that is “sufficient, but not
    greater than necessary” to comply with the statutory sentencing objectives.
    This precise argument was not raised in Starks, but there is no conflict between
    Starks and Mihm. Starks recognized that Congress limited the authority of a district
    court to reduce a sentence based on retroactive amendments to the sentencing
    guidelines. The governing statute incorporates the “applicable policy statements
    issued by the Sentencing Commission,” 
    18 U.S.C. § 3582
    (c), and those statements
    provide, with exceptions not relevant here, that a district court may not reduce a
    sentence below the amended guideline range derived from the amended guidelines.
    USSG § 1B1.10(b)(2)(A). Mihm held only that in determining the amended guideline
    range, the district court should consider the statutory limitation on the applicability of
    statutory minimum sentences set forth in § 3553(f). As the en banc court clarified in
    United States v. Hasan, 
    245 F.3d 682
     (8th Cir. 2001) (en banc), Mihm did not hold
    that a sentencing court is authorized to sentence below the amended guideline range
    based on the departure provisions of the guidelines or the factors set forth in
    § 3553(a). Id. at 685, 689-90. Rather, the court must comply with the specific
    -4-
    requirements of § 3582(c), including the direction that reductions be consistent with
    USSG § 1B1.10. See United States v. Fanfan, 
    558 F.3d 105
    , 109 (1st Cir. 2009)
    (distinguishing Mihm and agreeing with Starks).
    Therefore, as in Starks, the district court lacked authority to reduce Murphy’s
    sentence below his amended guideline range, and Murphy’s claim of error is without
    merit. Moreover, given the district court’s statement that it would impose the same
    sentence even if it had authority to treat the amended guideline range as advisory,
    Murphy cannot show that the error he posits affected his substantial rights.
    The judgment of the district court is affirmed.
    _____________________________
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