United States v. Wesson ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30177
Plaintiff-Appellee, D.C. No.
v.  2:01-cr-06001-
WILLIE DEE WESSON, WFN-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Submitted October 19, 2009*
Seattle, Washington
Filed October 19, 2009
Before: William A. Fletcher, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
14565
UNITED STATES v. WESSON 14567
COUNSEL
Tracey A. Staab, Federal Defenders of Eastern Washington
and Idaho, Spokane, Washington, for the defendant-appellant.
James A. McDevitt, United States Attorney, and Robert A.
Ellis, Assistant United States Attorney, Spokane, Washington,
for the plaintiff-appellee.
OPINION
TALLMAN, Circuit Judge:
Willie Dee Wesson, who pleaded guilty to distribution of
crack cocaine, appeals the district court’s denial of his motion
14568 UNITED STATES v. WESSON
for a sentence reduction. Wesson contends that he is eligible
for such a reduction under Amendment 706 to the United
States Sentencing Guidelines (“U.S.S.G.” or “Sentencing
Guidelines”), which reduced by two points the base offense
level assigned in U.S.S.G. § 2D1.1 to each threshold quantity
of crack cocaine. We have jurisdiction under 28 U.S.C.
§ 1291. Because Wesson was sentenced as a career offender,
and is thus not eligible for a reduction of his prison sentence
under Amendment 706, we affirm.
I
Wesson was indicted in 2001 for three counts of knowing
and intentional distribution of a substance containing cocaine
base and one count of possession with intent to distribute over
five grams of cocaine base, all in violation of 21 U.S.C.
§ 841(a)(1). He ultimately pleaded guilty to a single count of
distribution. The remaining counts were dismissed on motion
of the United States.
Applying the 2000 version of the Sentencing Guidelines,
the presentence investigation report (“PSR”) calculated a total
offense level of 31. First, the PSR began with a base offense
level of 28 under U.S.S.G. § 2D1.1 based on the quantity of
drugs—23.8 grams of cocaine—involved in the offenses.
However, because Wesson had at least two prior felony con-
victions for drug offenses, the district court then found that
Wesson was a career offender under U.S.S.G. § 4B1.1. Wes-
son was assigned a new base offense level of 34 based on the
maximum statutory term for the instant offense, as instructed
by § 4B1.1. A three-point downward departure was applied
for acceptance of responsibility. Based on the final offense
level of 31 and a criminal history category of VI, the PSR
author recommended that Wesson be imprisoned for a term of
188 to 235 months. The district court subsequently granted
Wesson’s motion for an additional two-level downward
departure based on diminished capacity pursuant to U.S.S.G.
§ 5K2.13.
UNITED STATES v. WESSON 14569
Based, therefore, on a final offense level of 29, the district
court sentenced Wesson on May 3, 2002, to 168 months
imprisonment. Wesson moved on March 3, 2008, for a further
two-point reduction in his offense level, arguing that Amend-
ment 706 applied retroactively to his sentence. On May 14,
2008, the district court denied the motion. The court
explained Wesson’s sentence as follows:
The Court relied on the career offender provision of
the Guidelines which set the base offense level for
Mr. Wesson. The Court then departed based on Mr.
Wesson’s diminished capacity. While the Court did
consider the severity of the crime, including the type
of drug and the amount involved, the Court’s sen-
tence reflects Mr. Wesson’s qualification as a career
offender. The Court also considered the 18 U.S.C.
§ 3553(a) factors, considering, among other things,
Mr. Wesson’s personal history and characteristics,
the crime committed, public safety and other
§ 3553(a) factors.
(emphasis added). The district court concluded “that Amend-
ment 706 does not apply to Mr. Wesson.” Wesson timely
appealed.
II
Wesson contends that the district court erred in concluding
that he is ineligible for a sentence reduction under Amend-
ment 706. We review de novo whether a district court has
jurisdiction to resentence a defendant under 18 U.S.C. § 3582.
United States v. Aguirre, 214 F.3d 1122, 1124 (9th Cir. 2000).
“As a general matter, courts may not alter a term of impris-
onment once it has been imposed.” United States v. Hicks,
472 F.3d 1167, 1169 (9th Cir. 2007). However, 18 U.S.C.
§ 3582(c)(2) creates an exception to this rule by allowing
modification of a term of imprisonment if: (1) the sentence is
14570 UNITED STATES v. WESSON
“based on a sentencing range that has subsequently been low-
ered by the Sentencing Commission” and (2) “such a reduc-
tion is consistent with applicable policy statements issued by
the Sentencing Commission.”
[1] The Sentencing Commission promulgated Amendment
706 in response to the 100-to-1 disparity in sentencing
between offenses involving powder cocaine and crack
cocaine. See generally Kimbrough v. United States, 128 S. Ct.
558, 566-69 (2007) (describing the evolving treatment of
crack and powder cocaine under the Sentencing Guidelines).
Amendment 706, which became effective on November 1,
2007, reduces this disparity by adjusting downward by two
points the base offense levels assigned to various quantities of
crack cocaine in the Drug Quantity Table in U.S.S.G.
§ 2D1.1. As Amendment 713 applies Amendment 706 retro-
actively, a court may now modify a term of imprisonment
where the underlying offense involves crack cocaine so long
as the two requirements of 18 U.S.C. § 3582(c)(2) are satis-
fied. United States v. Leniear, 574 F.3d 668, 673 (9th Cir.
2009). Wesson’s motion for resentencing fails to satisfy either
statutory requirement.
[2] The sentence imposed on a defendant convicted of a
drug offense is, in the absence of at least two prior felony
convictions involving drugs or violence, determined under
U.S.S.G. § 2D1.1(c), which correlates the length of the prison
term with the quantity of drugs. It is this correlation that is
altered by Amendment 706. However, where a defendant
qualifies as a career offender,1 U.S.S.G. § 4B1.1 establishes
an alternate sentencing scheme based on the statutory maxi-
1
A defendant qualifies as a career offender if: “(1) the defendant was at
least eighteen years old at the time the defendant committed the instant
offense of conviction; (2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.” U.S.S.G. § 4B1.1.
UNITED STATES v. WESSON 14571
mum sentence for the offense. Moreover, § 4B1.1 requires
that a district court apply this alternate sentencing scheme
where the offense level it specifies exceeds the offense level
that would otherwise apply. See id. (“[I]f the offense level for
a career offender from the table in . . . subsection [4B1.1] is
greater than the offense level otherwise applicable, the
offense level from the table in . . . subsection [4B1.1] shall
apply.” (emphasis added)).
[3] Therefore, with respect to the first prong of 18 U.S.C.
§ 3582(c)(2), a drug offense sentence that is “based on” a sen-
tencing range calculated under U.S.S.G. § 4B1.1 because the
defendant was a career offender cannot have been “based on”
a sentencing range calculated under the § 2D1.1 drug amount
table. The two sentencing schemes are mutually exclusive.
We thus join our sister circuits in holding that a career
offender sentenced pursuant to § 4B1.1 is not eligible for a
sentence reduction under Amendment 706. See United States
v. Perdue, 572 F.3d 288, 291-93 (6th Cir. 2009); United
States v. Martinez, 572 F.3d 82, 84-85 (2d Cir. 2009) (per
curiam); United States v. Mateo, 560 F.3d 152, 154-56 (3d
Cir. 2009); United States v. Forman, 553 F.3d 585, 589-90
(7th Cir. 2009) (per curiam); United States v. Caraballo, 552
F.3d 6, 9-12 (1st Cir. 2008); United States v. Sharkey, 543
F.3d 1236, 1238-39 (10th Cir. 2008); United States v. Tingle,
524 F.3d 839, 839-40 (8th Cir. 2008) (per curiam).
Wesson, however, contends that he is eligible for a sen-
tence reduction under Amendment 706 because his sentence
is not based entirely on his career offender status. It is true
that the district court considered factors other than his career
offender status, “including the type of drug and the amount
involved,” in sentencing Wesson. Nonetheless, Wesson’s
argument fails.
[4] First, the district court was required by 18 U.S.C.
§ 3553(a) to consider factors such as “the nature and circum-
stances of the offense” and “the history and characteristics of
14572 UNITED STATES v. WESSON
the defendant.” Not to do so would have constituted reversible
error. See Gall v. United States, 128 S. Ct. 586, 597 n.6
(2007) (“Section 3553(a) lists seven factors that a sentencing
court must consider.” (emphasis added)). Wesson’s argument
proves too much as it would effectively render any defendant
convicted of a crack cocaine offense eligible for Amendment
706 relief regardless of whether his sentence is “based on”
U.S.S.G. § 2D1.1.
[5] Second, that the district court took into account factors
other than Wesson’s career offender status is irrelevant. Cf.
United States v. Jackson, 577 F.3d 1032, 1034-35 (9th Cir.
2009) (rejecting the argument that Amendment 706 was appli-
cable because the district court granted a departure below the
mandatory minimum sentence). The only question that mat-
ters in determining the applicability of Amendment 706 is
whether Wesson’s sentence is “based on” § 2D1.1. It is not.
The district court was required to apply the § 4B1.1 base
offense level of 34 because it exceeded Wesson’s base
offense level of 28 under § 2D1.1(c)(6). The district court
used the § 4B1.1 base offense level, not the § 2D1.1 base
offense level, as the starting point for applying downward
departures for acceptance of responsibility and for diminished
capacity. Thus, the district court’s calculation of Wesson’s
base offense level under § 2D1.1 was not otherwise relied on
by the court once it determined that the § 4B1.1 base offense
level controlled.
Had the district court concluded that Wesson’s career
offender status overstated the seriousness of his criminal his-
tory and adopted a sentencing range calculation premised on
his § 2D1.1 base offense level,2 our conclusion might be dif-
ferent. See, e.g., United States v. McGee, 553 F.3d 225, 227
(2d Cir. 2009) (finding Amendment 706 applicable where
2
This would have resulted in a final offense level of 23 (base offense
level of 28 minus three points for acceptance of responsibility and minus
two points for diminished capacity).
UNITED STATES v. WESSON 14573
“the district court explicitly stated that it was departing from
the career offender sentencing range ‘to the level that the
defendant would have been in absent the career offender sta-
tus calculation and consideration’ ”); United States v.
Poindexter, 550 F. Supp. 2d 578, 580-81 (E.D. Pa. 2008)
(finding Amendment 706 applicable where the sentencing
judge “determined that the career offender designation ‘over-
represents the total offense level in this case’ ” and “reduced
Poindexter’s offense level to that which he would have faced
absent the career offender designation”). But the district court
here did no such thing, and we leave resolution of that sce-
nario for another day.
[6] Furthermore, modification of Wesson’s sentence would
not, as also required by 18 U.S.C. § 3582(c)(2), be “consistent
with applicable policy statements issued by the Sentencing
Commission.” The Sentencing Commission has issued such a
policy statement in the form of U.S.S.G. § 1B1.10. Specifi-
cally, a sentence reduction is not consistent with § 1B1.10 if
“[a]n amendment . . . does not have the effect of lowering the
defendant’s applicable guideline range.” Because Wesson was
designated a career offender, his sentence was based not on
§ 2D1.1 but on § 4B1.1, and thus Amendment 706 has no
effect on his applicable guideline range.
III
The district court did not err in concluding that it lacked
jurisdiction under 18 U.S.C. § 3582(c)(2) to modify Wesson’s
sentence pursuant to Amendment 706.
AFFIRMED.