United States v. Wallace

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 11, 2018
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 18-4010
v. (D.C. No. 2: 14-CR-00218-CW-1)
(D. Utah)
PRESTON SCOTT WALLACE, a/k/a/ S-
NUTT,
Defendant – Appellant.
ORDER AND JUDGMENT *
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
In 2014, Preston Scott Wallace was indicted with various firearm and drug
*
Oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.
This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not encouraged, but not prohibited.
Fed. R. App. 32.1. Citation is appropriate as it relates to law of the case, issue preclusion
and claim preclusion. Unpublished decisions may also be cited for their persuasive
value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by
an appropriate parenthetical notation B (unpublished). Id.
offenses. He entered into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement with the
government, agreeing to plead guilty to one count of possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1). The agreement called for a stipulated
sentence of 84 months imprisonment. The district judge conditionally accepted
Wallace’s guilty plea subject to preparation of the presentence report (PSR) for a
determination of whether the stipulated sentence was reasonable.
The PSR applied the 2014 edition of the United States Sentencing
Guidelines Manual. 1 Because the offense involved less than 50 grams of cocaine (79
milligrams), the base offense level was 12. See USSG § 2D1.1(c)(14). Two levels were
added because he possessed a dangerous weapon (firearm) during the offense. See USSG
§ 2D1.1(b)(1). Moreover, his criminal history included Utah state convictions for second
degree manslaughter and second degree assault by a prisoner. The PSR concluded these
convictions constituted “crime[s] of violence” under the career offender sentencing
guideline. See USSG §§ 4B1.1. That guideline increases a sentence if, among other
things, the defendant has “at least two prior felony convictions of either a “crime of
violence” or “a controlled substance offense.” 2 Id. A “crime of violence” is any federal
or state offense “punishable by imprisonment for a term exceeding one year” that (1) “has
1
All references to the guidelines in this decision refer to the 2014 edition unless
otherwise noted.
2
The career offender guideline also requires: (1) the defendant be at least 18 years
old at the time he committed the offense of conviction and (2) the offense of conviction
be either a felony crime of violence or controlled substance offense. See USSG §
4B1.1(a).
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as an element the use, attempted use, or threatened use of physical force against the
person of another” (the force or elements clause), (2) “is burglary of a dwelling, arson, or
extortion, [or] involves use of explosives” (the enumerated-offense clause), or (3)
“otherwise involves conduct that presents a serious potential risk of physical injury to
another” (the residual clause). USSG § 4B1.2(a)(1), (2). The commentary to § 4B1.2
defines crime of violence to include “murder, manslaughter, kidnapping, [and]
aggravated assault.” USSG § 4B1.2, comment. (n.1). Application of the career offender
guideline resulted in an advisory guideline range of 151-188 months imprisonment. Had
that guideline not applied, the advisory guideline range would have been 27-33 months.
The judge accepted the PSR’s calculations and concluded the stipulated sentence (84
months) to be reasonable. He entered judgment accordingly.
In June 2016, Wallace filed a 28 U.S.C. § 2255 motion arguing, inter alia, that the
career offender guideline did not apply because his prior convictions were no longer
crimes of violence in light of Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551, 2563
(2015) (holding the residual clause of the Armed Career Criminal Act (ACCA) was
unconstitutionally vague), and United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir.
2015) (holding the residual clause of the career offender guideline (USSG § 4B1.2(a)(2))
is unconstitutionally vague), abrogated by Beckles v. United States, ––– U.S. ––––, 137
S. Ct. 886 (2017). A year later, in June 2017, the government “agree[d] that the § 2255
motion should be granted.” (Supp. R. Vol. 1 at 28.) It also informed the judge that the
parties had jointly agreed Wallace should be resentenced to 48 months in prison. The
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judge granted the § 2255 motion and entered an amended judgment of 48 months.
Wallace’s current pro se motion 3 sought a reduction of sentence under 18 U.S.C. §
3582(c)(2). That statute authorizes a court to reduce the sentence of a defendant if his
term of imprisonment was “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” He relied on
Amendment 782, a retroactive amendment to the guidelines which lowered the base
offense levels for most drug crimes by two levels. See USSG Supp. to App. C,
Amendments 782, 788 (2016). The judge denied the motion, concluding he was not
eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).
Because Wallace was sentenced under a Rule 11(c)(1)(C) agreement, the judge
looked to Justice Sotomayor’s concurring opinion in Freeman v. United States, 564 U.S.
522 (2011), to determine whether his sentence was “based on” a guideline range. See
United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) (“Justice Sotomayor’s
concurrence is the narrowest grounds of decision [in Freeman] and represents the Court’s
holding.”), abrogated by Hughes v. United States, --- U.S. ---, 138 S. Ct. 1765 (2018).
The judge decided Wallace’s sentence was not “based on” a guideline range because the
plea agreement simply provided for a specific number of months imprisonment and did
not expressly reference the guidelines or a guideline range to establish the stipulated
3
Because Wallace appears pro se, we have liberally construed his pleadings,
stopping short, however, of serving as his advocate. See United States v. Pinson, 584
F.3d 972, 975 (10th Cir. 2009).
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term. See Freeman, 564 U.S. at 539 (Sotomayor, J., concurring in judgment) (holding a
term of imprisonment resulting from a Rule 11(c)(1)(C) plea agreement is “based on” the
guidelines for purposes of § 3582(c)(2) when, inter alia, the agreement “provide[s] for a
specific term of imprisonment . . . but also make[s] clear that the basis for the specified
term is a Guidelines sentencing range” and “that sentencing range is evident from the
agreement itself”). Wallace appeals; our review is de novo. See United States v. Chavez-
Meza, 854 F.3d 655, 657 (10th Cir. 2017).
He relies on the Supreme Court’s recent decision in Hughes. In that case, the
Court “resolve[d] the uncertainty that resulted from [its] divided decision in Freeman”
and held a sentence imposed pursuant to a Rule 11(c)(1)(C) agreement is, “in the usual
case,” “based on” the defendant’s sentencing guideline range. 138 S. Ct. at 1776. That is
because the sentencing court must accept the Rule 11(c)(1)(C) agreement and its
stipulated sentence and cannot do so without first evaluating the recommended sentence
in light of the defendant’s guideline range. Id. In such circumstances, the sentence is
“based on” the guideline range for purposes of § 3582(c)(2) because “that range was part
of the framework the district court relied on in imposing the sentence or accepting the
agreement.” Id. at 1775.
Because the judge relied on his guideline range in determining whether to accept
the Rule 11(c)(1)(C) agreement and stipulated sentence, Wallace was not rendered
ineligible for a sentence reduction as a result of that agreement. But that does not end the
matter; the judge was ultimately correct for a different reason. Wallace is not eligible for
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relief under § 3582(c)(2) because his sentencing range was not subsequently lowered by
Amendment 782. See United States v. Snyder, 793 F.3d 1241, 1243 (10th Cir. 2015)
(“We can . . . affirm a lower court’s ruling on any grounds adequately supported by the
record, even grounds not relied upon by the district court.” (quotation marks omitted)).
As stated above, § 3582(c)(2) permits a sentencing court to reduce the sentence of
a defendant only if he “has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing Commission”
and “such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” The applicable § 3582(c)(2) policy statement provides that a
sentence reduction is “not authorized under 18 U.S.C. § 3582(c)(2)” if the “amendment . .
. does not have the effect of lowering the defendant’s applicable guideline range.” USSG
§ 1B1.10(a)(2)(B). Amendment 782 had no effect on Wallace’s guideline range.
Prior to Amendment 782, the guidelines called for a base offense level of 12 if the
offense involved less than 25 grams of cocaine. Amendment 782 increased that amount
to 50 grams. Because Wallace’s offense involved 79 milligrams of cocaine, his base
offense level was 12 and the resulting guideline range was 27-33 months both before and
after Amendment 782. Not only that, his guideline range was calculated pursuant to the
2014 guidelines, which already incorporated Amendment 782. See United States v.
Servin, --- F. App’x ---, No. 17-5101, 2018 WL 2296185, at *1 (May 21, 2018)
(unpublished) (district court lacked jurisdiction to modify Servin’s sentence based on
Amendment 782 because he was sentenced under the 2015 guidelines, which
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incorporated that Amendment); United States v. Bishop, 639 F. App’x 518, 520 (10th Cir.
2016) (unpublished) (because Amendment 782 had no effect on Bishop’s guideline
range, he could not obtain a sentence reduction under § 3582(c)(2)); United States v.
Muldrow, 612 F. App’x 508, 512 (10th Cir. 2015) (unpublished) (same).
Wallace balks, claiming he did not receive the benefit of Amendment 782 because
he was deemed a career offender, which increased his guideline range from 27-33 months
to 151-188 months imprisonment. But that argument ignores his amended sentence (48
months), to which he stipulated and which appears to have resulted from negotiations
between the parties with consideration of what his guideline range would be if his § 2255
motion challenging the career offender guideline was granted. In any event, considering
his initial sentence to have been based on the career offender guideline, he remains
ineligible for a sentence reduction under § 3582(c)(2) because Amendment 782 had no
effect on the career offender guideline and therefore did not lower the resulting guideline
range. See United States v. Sharkey, 543 F.3d 1236, 1239 (10th Cir. 2008).
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Wallace is ineligible for a sentence reduction. Rather than deny his motion,
however, the district court should have dismissed it for lack of jurisdiction. See United
States v. White, 765 F.3d 1240, 1250 (10th Cir. 2014). We VACATE the district court’s
order denying Wallace’s § 2255 motion and REMAND with instructions to dismiss for
lack of jurisdiction. Wallace’s request to proceed on appeal without prepayment of
fees(in forma pauperis or ifp) is MOOT because we have reached the merits of this
appeal.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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