United States v. Rollins

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-1226
v. (D.C. No. 1:06-CR-00240-REB-1)
(D. Colo.)
SHAWN LA’VELLE ROLLINS, a/k/a
Sean Lavelle Rollins, a/k/a “Inch,” a/k/a
“Critical,” a/k/a “Smurf,” a/k/a “G Rock,”
a/k/a Michael Williams, a/k/a Shawn
Lavelle Rollios,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
Defendant Shawn La’Velle Rollins appeals a decision of the United States District
Court for the District of Colorado denying his motion under 18 U.S.C. § 3582(c)(2) for a
sentence reduction. Because the Sentencing Guidelines amendment on which he relies is
not retroactive, we affirm.
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
In 2007 Defendant agreed to plead guilty to six counts of bank robbery. See
18 U.S.C. § 2113(a). As part of the plea bargain the parties agreed that Defendant
qualified as a career offender under USSG § 4B1.1(a),1 that his offense level was 29, that
his career-offender status gave him a criminal-history category of VI, and that his
resulting guideline sentencing range was 151 to 188 months in prison. The district court
imposed a sentence of 188 months.
In March 2017 Defendant filed a motion under § 3582(c)(2) for a sentence
modification. He relied on Amendment 798 to the Sentencing Guidelines, which (among
other things) eliminated the residual clause from the crime-of-violence definition used to
determine whether a defendant is a career offender. He argued that Amendment 798
should apply retroactively to his case because of Teague v. Lane, 489 U.S. 288 (1989),
and that under the present crime-of-violence definition, two of his prior convictions (for
escape under Colorado law) could not be crimes of violence. The upshot, he maintained,
was that he was no longer a career offender and thus merited a sentence reduction. In
response, the government argued that “[u]ntil the [Sentencing] Commission makes
Amendment 798 retroactive . . . , [Defendant] is not eligible for a sentencing reduction
based on his present claim.” R. at 61. The district court denied Defendant’s motion,
stating that it was doing so “[f]or the reasons set forth in the government’s response.” Id.
at 67. Defendant appealed.
1
The record and briefing do not specify which version of the Guidelines Manual gov-
erned Defendant’s sentencing. Because the district court sentenced Defendant in January
2008, we assume that it used the 2007 edition.
2
We review de novo the scope of a district court’s authority to reduce a sentence
under § 3582(c)(2). See United States v. Chavez-Meza, 854 F.3d 655, 657 (10th Cir.
2017). We review a district court’s decision to deny a § 3582(c)(2) motion for an abuse
of discretion. See id.
Ordinarily, once a district court imposes a prison term, it may not modify that
term. But there are a few exceptions. The one invoked by Defendant states:
[I]n 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 . . . , upon motion of the defendant . . . the court
may reduce the term of imprisonment . . . if such a reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.
18 U.S.C. § 3582(c)(2).
The government argues that reducing Defendant’s sentence would be inconsistent
with the Sentencing Commission’s “applicable policy statements.” The governing policy
statement here is USSG § 1B1.10. Regarding retroactivity, it states 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 . . . none of the amendments
listed in [§ 1B1.10(d)] is applicable to the defendant . . . .” Id. § 1B1.10(a)(2).
Amendment 798 is not on the § 1B1.10(d) list. See USSG § 1B1.10(d). Reducing
Defendant’s sentence based on Amendment 798 would thus be inconsistent with
applicable policy statements.
Defendant argues that the Sentencing Commission “failed in its duty and/or
overstepped the bounds of its authority” by not making Amendment 798 retroactive.
3
Aplt. Br. at 3. He contends that Teague dictates that Amendment 798 be retroactive. Not
so. Teague addresses the retroactivity of new constitutional rules of criminal procedure.
See, e.g., Teague, 489 U.S. at 310 (“Unless they fall within an exception to the general
rule, new constitutional rules of criminal procedure will not be applicable to those cases
which have become final before the new rules are announced.” (emphasis added));
United States v. Chang Hong, 671 F.3d 1147, 1159 (10th Cir. 2011) (“The Teague
framework exists to promote the finality of convictions by shielding them from collateral
attacks mounted on new procedural rules of constitutional law.”) (emphasis added)).
Sentencing Guideline amendments are not new constitutional rules. Defendant points to
no case law suggesting that Teague applies to guidelines amendments. This is
unsurprising, given the Supreme Court’s post-Teague statement that it is “aware of no
constitutional requirement of retroactivity that entitles defendants sentenced to a term of
imprisonment to the benefit of subsequent Guidelines amendments.” Dillon v. United
States, 560 U.S. 817, 828 (2010); cf. United States v. Verdin-Garcia, 824 F.3d 1218,
1221 (10th Cir. 2016) (“[S]entence-modification proceedings [under § 3582(c)(2)] are
not constitutionally compelled but rather represent a congressional act of lenity intended
to give prisoners the benefit of later enacted adjustments.” (internal quotation marks
omitted)), cert. denied, 137 S. Ct. 2263 (2017). Teague does not require the retroactivity
of Amendment 798, so Defendant cannot claim the benefit of that amendment.2
2
Defendant has moved to proceed in forma pauperis on appeal. To do so, Defendant
must show “a financial inability to pay the required filing fees and the existence of a rea-
soned, nonfrivolous argument on the law and facts in support of the issues raised on ap-
4
We AFFIRM the district court’s denial of Defendant’s § 3582(c)(2) motion and
DENY Defendant’s motion to proceed in forma pauperis.
Entered for the Court
Harris L Hartz
Circuit Judge
peal.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (brackets and internal quota-
tion marks omitted). Because Defendant’s Amendment 798 argument is frivolous, we
deny his motion to proceed in forma pauperis.
5