United States v. Hicks ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30193
Plaintiff-Appellee, D.C. No.
v.  CR-93-00002-4-
AARON HICKS, a-HRH
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, Chief District Judge, Presiding
Argued and Submitted
December 5, 2006—Seattle, Washington
Filed January 11, 2007
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and William W Schwarzer,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
321
324 UNITED STATES v. HICKS
COUNSEL
Robert K. Stewart, Davis Wright Tremaine LLP, Anchorage,
Alaska, Lissa W. Shook, Davis Wright Tremaine LLP, Seat-
tle, Washington, for the defendant-appellant.
Deborah M. Smith, Assistant United States Attorney, Anchor-
age, Alaska, for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
In this appeal, we consider whether United States v.
Booker’s requirement that the district courts treat the United
States Sentencing Guidelines as advisory applies to the resen-
tencing of defendants pursuant to 18 U.S.C. § 3582(c). See
United States v. Booker, 543 U.S. 220, 245-46 (2005). We
hold that it does. Because the district court considered the
Guidelines mandatory when resentencing appellant Aaron
Hicks, we vacate his sentence and remand to the district court
for further proceedings.
I. FACTS
Aaron Hicks was convicted and sentenced in 1993 for con-
spiring to distribute crack cocaine and for maintaining a place
for drug trafficking, in violation of 21 U.S.C. §§ 841, 843,
846, and 856, and 18 U.S.C. §§ 371 and 1028. Hicks was also
convicted of using and carrying a firearm during and in rela-
tion to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c). The Presentence Report (“PSR”) calculated a base
offense level of 38. It was increased two points for his role in
the conspiracy and two additional points for his possession of
a firearm in the course of drug trafficking.1 Combining the
1
The latter enhancement would ultimately prove to be the catalyst for
this appeal.
UNITED STATES v. HICKS 325
adjusted offense level of 42 with Hicks’s Category I criminal
history score yielded a Guideline range of 360 months to life.
The PSR also recommended a consecutive 60-month sentence
for the firearm violation. The district court adopted the PSR’s
recommendations and sentenced Hicks, who was 22 at the
time, to 420 months in prison.
At sentencing, the court noted its distaste for the length of
the sentence imposed:
Mr. Hicks, it’s — I really take no pleasure in impos-
ing a sentence of this magnitude. I’m required by
law to do — which I’m required by law to do, but
I want to say that, you know, your father, Aaron
Beard, who is very substantially responsible for, I
believe, your participation and conduct in this matter
is — has been acquitted in this case. Comparing the
penalty imposed upon you and the fact that he’s been
acquitted is a matter which I have no control over,
but which I must say I do regret.
Tr. of Sentencing Hr’g, July 7, 2003, at 8.
Effective November 1, 2000, the Sentencing Commission
adopted Amendment 599, an explicitly retroactive amend-
ment that modified the Guidelines applicable to § 924(c)
offenses.2 U.S. Sentencing Guidelines Manual § 2K2.4 [here-
inafter USSG], cmt. n.2 (2000); USSG § 1B1.10(a) & (c). The
amended application note states:
If a sentence under this guideline is imposed in con-
junction with a sentence for an underlying offense,
do not apply any specific offense characteristic for
possession, brandishing, use, or discharge of an
explosive or firearm when determining the sentence
2
This adoption was made pursuant to 28 U.S.C. § 994(o), as required by
18 U.S.C. § 3582(c)(2).
326 UNITED STATES v. HICKS
for the underlying offense. A sentence under this
guideline accounts for any explosive or weapon
enhancement for the underlying offense of convic-
tion, including any such enhancement that would
apply based on conduct for which the defendant is
accountable under § 1B1.3 . . . .
USSG § 2K2.4, cmt. n.2 (2000). Amendment 599 eliminated
Hicks’s two-level enhancement for firearm possession
because the firearm originally used to enhance his sentence
had also been a part of the offense that constituted his
§ 924(c) conviction. Without this enhancement, Hicks’s
offense level would have been 40, resulting in a Guidelines
range of 292 to 365 months. USSG ch. 5, pt. A.
Following the adoption of Amendment 599, but before
Hicks moved to reduce his sentence, the Supreme Court
issued its opinion in United States v. Booker, 543 U.S. 220
(2005). On December 7, 2005, Hicks moved to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that his
possession of a firearm led to both a two-level weapon
enhancement and a mandatory consecutive sentence under
§ 924(c). Hicks expressly reserved the right to brief the
impact of Booker on any ensuing sentencing calculation,
should the court choose to grant his motion.
The government filed a partial non-opposition to Hicks’s
motion, agreeing that the two-level reduction was appropriate
but opposing his Booker request. In the government’s opinion,
Booker had no effect on a § 3582(c)(2) sentence reduction
proceeding. Hicks filed a brief in response, arguing that
Booker gave the court discretion to impose a sentence below
the applicable Guideline range, and that the court should
resentence Hicks to a 150-month term. At the court’s behest,
the government filed a sur-reply in which it argued that a fur-
ther reduction in Hicks’s sentence would be inconsistent with
applicable policy statements in the Guidelines.
UNITED STATES v. HICKS 327
After considering the briefing from both sides, the district
court reduced Hicks’s sentence to 292 months but rejected
defendant’s Booker argument, asserting that a further reduc-
tion was inconsistent with the policy statements and beyond
the court’s authority. Hicks appeals this determination.
II. DISCUSSION
This case presents the court with two related questions.3
First, it requires us to decide whether § 3582(c)(2) proceed-
ings fall within the scope of Booker. Second, if they fall
within Booker’s ambit, it raises the question of whether policy
statements by the Sentencing Commission nonetheless pre-
clude the application of Booker to § 3582(c)(2). Because
Booker abolished the mandatory application of the Sentencing
Guidelines in all contexts, and because reliance on its holding
is not inconsistent with any applicable policy statement, we
reverse the district court and hold that Booker applies to
§ 3582(c)(2) proceedings.
A. Applicability of Booker to § 3582(c)(2)
[1] As a general matter, courts may not alter a term of
imprisonment once it has been imposed. See 18 U.S.C.
§ 3582(c); United States v. Hovsepian, 307 F.3d 922, 927 (9th
Cir. 2002) (“District courts do not have inherent authority to
resentence defendants at any time.”) (quoting United States v.
Stump, 914 F.2d 170, 172 (9th Cir. 1990)). However,
§ 3582(c)(2) creates an exception
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 Sentenc-
ing Commission pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the
3
Both questions are issues of first impression, not only in the Ninth Cir-
cuit, but in any federal court of appeals.
328 UNITED STATES v. HICKS
Bureau of Prisons, or on its own motion, the court
may reduce the term of imprisonment, after consid-
ering 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.4
18 U.S.C. § 3582(c)(2). Under this section, a district court can
re-sentence a defendant, like Hicks, whose sentencing range
has been lowered by the Sentencing Commission pursuant to
28 U.S.C. § 994(o). This allows the district court to re-
calculate the defendant’s sentencing range using the newly
reduced Guideline, and then determine an appropriate sen-
tence in accordance with the § 3553(a) factors. See id. The
open question is whether the district court’s new Guideline
calculation imposes a mandatory sentencing range or an advi-
sory one. We believe the clear language of Booker makes the
range advisory.
[2] Booker explicitly stated that, “as by now should be
clear, [a] mandatory system is no longer an open choice.”
Booker, 543 U.S. at 263; see also id. at 264 (noting that dis-
trict courts are “not bound to apply the Guidelines”).
Although the Court acknowledged that Congress had intended
to create a mandatory Guidelines system, Booker stressed that
this was not an option: “[W]e repeat, given today’s constitu-
tional holding, [a mandatory Guideline regime] is not a choice
that remains open. . . . [W]e have concluded that today’s hold-
ing is fundamentally inconsistent with the judge-based sen-
tencing system that Congress enacted into law.” Id. at 265.
The Court never qualified this statement, and never suggested,
explicitly or implicitly, that the mandatory Guideline regime
survived in any context.
4
Other exceptions are created by 18 U.S.C. §§ 3582(c)(1)(A)(i),
(c)(1)(A)(ii), and (c)(1)(B). Fed. R. Crim. P. 35 also provides an exception
to the general rule.
UNITED STATES v. HICKS 329
[3] In fact, the Court emphasized that the Guidelines could
not be construed as mandatory in one context and advisory in
another. When the government suggested, in Booker, that the
Guidelines be considered advisory in certain, constitutionally-
compelled cases, but mandatory in others, the Court quickly
dismissed this notion, stating, “we do not see how it is possi-
ble to leave the Guidelines as binding in other cases. . . . [W]e
believe that Congress would not have authorized a mandatory
system in some cases and a nonmandatory system in others,
given the administrative complexities that such a system
would create.” Id. at 266. In short, Booker expressly rejected
the idea that the Guidelines might be advisory in certain con-
texts but not in others, and Congress has done nothing to
undermine this conclusion. Because a “mandatory system is
no longer an open choice,” id. at 263, district courts are neces-
sarily endowed with the discretion to depart from the Guide-
lines when issuing new sentences under § 3582(c)(2).
The government offers two arguments in opposition, but
neither is persuasive. First, the government asserts that only
the Sentencing Commission can grant authority for re-
sentencing under § 3582(c)(2). The government notes that
§ 3582(c)(2) allows for re-sentencing only when “a sentenc-
ing range . . . has subsequently been lowered by the Sentenc-
ing Commission pursuant to 28 U.S.C. § 944(o).” 18 U.S.C.
§ 3582(c)(2). The government also cites United States v.
Price, 438 F.3d 1005, 1007 (10th Cir. 2006), for the proposi-
tion that “Booker does not provide a basis for a sentence
reduction under § 3582(c)(2).”5
This position completely misapprehends appellant’s argu-
ment. Hicks is not arguing that he deserves a § 3582(c)(2) re-
sentencing because of Booker. His entitlement is based on 18
5
Price itself cites similar cases from the Third, Fourth, Fifth, Seventh,
and Eleventh Circuits that stand for this proposition. Id. at 1007 n.2. The
Second Circuit has reached a similar conclusion. See United States v.
Mitchell, 122 Fed. Appx. 539, 541 (2d Cir. 2005).
330 UNITED STATES v. HICKS
U.S.C. § 3582(c)(2), as the government concedes. Hicks
argues that when the district court reconsiders his sentence
pursuant to § 3582(c)(2) — a proceeding that occurred only
because the Sentencing Commission lowered the applicable
sentencing range — the district court should have discretion
to impose a non-Guidelines sentence.
Price, and the other cases cited by the government, address
a wholly distinct issue: whether Booker itself provides the
requisite authority to reopen sentencing proceedings under
§ 3582(c). As discussed above, every court to consider this
argument has rejected it because § 3582(c)(2) allows re-
sentencing only when the Commission lowers an applicable
Guideline. Booker did not lower any sentencing ranges; it
simply rendered the Guidelines advisory. Here, Hicks was
already eligible for a § 3582(c)(2) re-sentencing because the
Sentencing Commission had lowered the applicable Guide-
lines range. Therefore, the government’s reliance on these
cases and the quoted statutory language is misplaced.
Next, the government argues that Booker is inapplicable
because a § 3582(c)(2) proceeding is not a “full re-
sentencing,” but merely a modification of the defendant’s sen-
tence. See 18 U.S.C. § 3582(c) (“The court may not modify a
term of imprisonment once it has been imposed except that
. . .”) (emphasis added). The government also cites United
States v. Stockdale, 129 F.3d 1066 (9th Cir. 1997), for this
proposition. In Stockdale, the court considered whether the
safety valve statute, 18 U.S.C. § 3553(f) applied to
§ 3582(c)(2) proceedings. In determining that it did not, the
court explained, “[t]he safety valve statute applies during sen-
tencing, not in subsequent reduction proceedings.”6 Hicks
counters by citing United States v. Ono, 72 F.3d 101, 102 (9th
Cir. 1995), which stated, “the purpose of a § 3582 motion is
resentencing.”
6
The court also noted that the “inferences from grammar” undergirding
its decision “might be a bit thin.” Stockdale, 129 F.3d at 1069.
UNITED STATES v. HICKS 331
While § 3582(c)(2) proceedings do not constitute full
resentencings, their purpose is to give defendants a new sen-
tence. This resentencing, while limited in certain respects, still
results in the judge calculating a new Guideline range, consid-
ering the § 3553(a) factors, and issuing a new sentence based
on the Guidelines. The dichotomy drawn by the government,
where full re-sentencings are performed under an advisory
system while “reduction proceedings,” or “modifications,”
rely on a mandatory Guideline system, is false. As discussed
above, Booker excised the statutes that made the Guidelines
mandatory and rejected the argument that the Guidelines
might remain mandatory in some cases but not in others.
Booker, 543 U.S. at 263-66. Mandatory Guidelines no longer
exist, in this context or any other.
B. Consistency with Applicable Policy Statements
[4] Section 3582(c)(2) permits the court to reduce a defen-
dant’s sentence after considering the § 3553(a) factors “if
such a reduction is consistent with applicable policy state-
ments issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). The government argues that applying the Guide-
lines in an advisory fashion is inconsistent with the policy
statements set forth in USSG § 1B1.10(b), § 1B1.10 app. n.2,
and § 1B1.10 cmt. background. However, none of these pol-
icy statements is applicable to the question of whether, after
Booker, a court can go below the Guidelines’ minimum when
modifying a sentence under § 3582(c)(2). Further, even if
they are read to address this question, they do not prohibit the
application of the Guidelines in an advisory fashion. Finally,
under Booker, to the extent that the policy statements would
have the effect of making the Guidelines mandatory (even in
the restricted context of § 3582(c)(2)), they must be void.
Section 1B1.10(b) of the Guidelines states:
In determining whether, and to what extent, a reduc-
tion in the term of imprisonment is warranted for a
332 UNITED STATES v. HICKS
defendant eligible for consideration under 18 U.S.C.
§ 3582(c)(2), the court should consider the term of
imprisonment that it would have imposed had the
amendment(s) to the guidelines listed in subsection
(c) been in effect at the time the defendant was sen-
tenced. . . .
USSG § 1B1.10(b). Application note 2 adds:
In determining the amended guideline range under
subsection (b), the court shall substitute only the
amendments listed in subsection (c) for the corre-
sponding guideline provisions that were applied
when the defendant was sentenced. All other guide-
line application decisions remain unaffected.
USSG § 1B1.10 app. n.2. Finally, the “Background” portion
of § 1B1.10 states, in part:
The authorization of such a discretionary reduction
does not otherwise affect the lawfulness of a previ-
ously imposed sentence, does not authorize a reduc-
tion in any other component of the sentence, and
does not entitle a defendant to a reduced term of
imprisonment as a matter of right.
USSG § 1B1.10 cmt. background.
[5] The government argues that a departure from the
Guideline ranges would contravene these policy statements
primarily because it would produce an outcome which would
not have been permissible in 1993, even utilizing the amended
Guidelines, and because such a departure would impermiss-
ibly change application decisions which were not affected by
the Guidelines amendments. However, as USSG § 1B1.10(b)
states only that the court “should consider the term of impris-
onment that it would have imposed had the amendment[ ] . . .
been in effect” in 1993, and not that it may only impose that
UNITED STATES v. HICKS 333
sentence, departing from the 1993 sentence would not conflict
with the language of the policy statement. Similarly, just
because Hicks is not entitled to a sentence reduction as a mat-
ter of right does not mean that he may not be entitled to one
as a matter of discretion.
Even if the government is correct in its assertion that all
Hicks is entitled to is a removal of the two-level enhance-
ment, the newly calculated range could still be applied in an
advisory, rather than mandatory fashion. The policy state-
ments are silent on the manner in which the modified ranges
should be used. As they were enacted pre-Booker, they
assume a mandatory Guidelines regime, but this assumption
does not provide a statutory reason to treat them as mandatory
when the rest of the Guidelines are now advisory.
[6] Finally, as discussed above, Booker makes clear that the
Guidelines are no longer mandatory in any context — its
effect is not restricted to the “de novo resentencing” which the
government seeks to distinguish. Booker was not a mere statu-
tory change which can be set aside to allow us to pretend it
is 1993 for the purpose of modifying Hicks’ sentence; rather,
it provides a constitutional standard which courts may not
ignore by treating Guidelines ranges as mandatory in any con-
text. Thus, to the extent that the policy statements are incon-
sistent with Booker by requiring that the Guidelines be treated
as mandatory, the policy statements must give way.
SENTENCE VACATED AND REMANDED.