United States v. Kirtman

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 4, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-5026
(D.C. No. 4:97-CR-00053-JHP-2)
DERRICK EUGENE KIRTMAN, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, MURPHY and PHILLIPS, Circuit Judges.
_________________________________
Derrick Kirtman, appearing pro se, appeals the district court’s application of
the First Step Act of 2018 and Sentencing Guideline Amendment 782 to reduce his
sentence by 91 months, arguing that the district court should have reduced his
sentence further. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Kirtman also seeks to appeal a district court denying a motion he filed
challenging his 1997 conviction and 1998 sentence. We conclude the motion was an
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
unauthorized second or successive 28 U.S.C. § 2255 petition, construe his notice of
appeal as a request for a certificate of appealability (COA), deny that request, dismiss
his appeal of the order, and direct the district court to vacate the order because it
lacked subject matter jurisdiction to resolve the motion.
I. Background
In 1997, a jury convicted Kirtman of conspiracy to possess with intent to
distribute cocaine base (crack cocaine) and conspiracy to distribute cocaine base. We
described Kirtman’s leadership of a violent criminal enterprise in our affirmance of
his conviction and need not recount his transgressions here. See United States v.
Kirtman, No. 98-5039, 1999 WL 49126, at *1 (10th Cir. Feb. 4, 1999). But they
included “savagely beat[ing] a distributor who was suspected of having stolen money
and drugs, permanently disfiguring him.” Id.
Kirtman’s presentence investigation report (PSR) recommended that his base
offense level be set at 38 because the conspiracy involved distribution of at least 1.5
kilograms of crack cocaine and that his offense level be increased by eight levels for
using firearms and leading a large criminal organization that included minors. The
district court adopted the PSR, applied Kirtman’s total offense level of 46 and
criminal history category of I to the Sentencing Guidelines then in force, and
sentenced him to life imprisonment.
Over the years, Kirtman filed a series of motions under 18 U.S.C. § 3582(c)(2)
seeking to reduce his sentence based on retroactive amendments to the Sentencing
Guidelines. He based his first motion on Amendment 706, which reduced the base
2
offense level for most crack cocaine offenses by two levels. See U.S. Sentencing
Guidelines Manual (USSG) app. C vol. III at 226, 230 (U.S. Sentencing Comm’n
2018). The district court denied this motion because “[e]ven with the two-level
reduction to [his] base offense level under Amendment 706,” Kirtman still had “a
total offense level of 44, which require[d] life imprisonment.” United States v.
Kirtman (Kirtman 2009), 310 F. App’x 278, 280 (10th Cir. 2009). We affirmed. Id.
Kirtman based his second motion on Amendment 750, which reduced the base
offense level for most crack offenses by two more levels. See USSG app. C vol. III
at 391. The district court granted this motion, reducing his sentence to 456 months.
Kirtman later filed two motions seeking a further reduction in his sentence
under Amendment 782, which reduced the base offense level for most crack offenses
by another two levels. See USSG app. C supp. at 60–61. The district court exercised
its discretion to deny the motions because Kirtman’s “leadership role in a long term
and extensive illicit drug distribution operation” and “acts of extreme violence” made
him “an ongoing danger to the community.” R. at 61; see also id. at 79. We
dismissed Kirtman’s appeal from the district court’s first denial as frivolous, United
States v. Kirtman, 650 F. App’x 954, 956 (10th Cir. 2016), and Kirtman did not
appeal the district court’s second denial.
Then Congress passed the First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194. This law authorized courts to retroactively apply the Fair Sentencing Act
of 2010 “to offenders who committed offenses prior to the [Fair Sentencing Act’s]
effective date of August 3, 2010.” United States v. Mannie, 971 F.3d 1145, 1147
3
(10th Cir. 2020). The Fair Sentencing Act had, “among other things, increased the
quantity of crack cocaine required to trigger certain statutory penalties.” Id. Kirtman
asked the district court to apply these laws and “exercise its sentencing discretion by
resentencing [him] to a low-end guideline sentence.” R. at 110.
The district court granted Kirtman’s motion in part. It applied section 404(b)
of the First Step Act and lowered Kirtman’s “statutory penalty from ten years to life,
to five to forty years.” Id. at 116. It also found it “reasonable at this time to grant” a
reduction under Amendment 782 “based upon Congress’s decision to lower the
statutory maximum penalty in this case, [Kirtman’s] behavior while incarcerated over
the past twenty-one years, and the substantial guideline range produced even with the
guideline reduction under Amendment 782.” Id. It therefore lowered Kirtman’s base
offense level to 32, lowered his total offense level to 40, and concluded that his
resulting guidelines sentencing range was 292 to 365 months. But it found that the
“aggravating factors in this case” warranted “a sentence at the high end of this range”
and reduced Kirtman’s sentence by 91 months to 365 months. Id. Kirtman appeals.
Over the years, Kirtman also lodged many unsuccessful collateral attacks on
his conviction and sentence. See United States v. Kirtman, 33 F. App’x 401, 403
(10th Cir. 2002) (denying COA from denial of § 2255 petition); Kirtman v. United
States, No. 06-5034, Order (10th Cir. Apr. 3, 2006) (denying authorization to file
successive § 2255 petition); Kirtman 2009, 310 F. App’x at 281 (directing district
court to dismiss § 2255 claims); In re Kirtman, No. 09-5036, Order (10th Cir.
Apr. 13, 2009) (denying authorization to file successive § 2255 petition); In re
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Kirtman, No. 10-5137, Order (10th Cir. Dec. 10, 2010) (dismissing successive § 2255
action); In re Kirtman, No. 11-5019, Order (10th Cir. Mar. 16, 2011) (denying
authorization to file successive § 2255 petition).
Kirtman continued this tradition in October 2018 by filing a “motion for relief
pursuant to Rule 60(d)(3) for fraud upon the court,” R. at 95 (boldface and
capitalization omitted), asserting that his conviction resulted from a conspiracy
among police officers and that he did not participate in the beating of the distributor,
id. at 95–97. The district court denied this motion. Kirtman seeks to appeal.
II. Discussion
A. Kirtman’s Sentence-Reduction Motion
Kirtman makes several arguments for reversal. We construe these arguments
as applying to both the district court’s application of the First Step Act to reduce his
statutory penalty and its application of Amendment 782 to reduce his guidelines
range and sentence via § 3582(c)(2).1 We review both actions for an abuse of
discretion. See Mannie, 971 F.3d at 1155; United States v. Green, 886 F.3d 1300,
1307 (10th Cir. 2018).
We first address Kirtman’s argument that the district court erred by failing to
conduct a plenary resentencing2 or hold a hearing. “[P]lenary resentencing is not
1
Because Kirtman appears pro se, we construe his filings liberally but do not
serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005).
2
Kirtman sought plenary resentencing in part for the district court to revisit its
use of judge-found facts to increase his guidelines range in light of Apprendi v. New
5
appropriate under the First Step Act.” United States v. Brown, 974 F.3d 1137, 1144
(10th Cir. 2020). Section 3582(c)(2) likewise “authorize[s] only a limited adjustment
to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v.
United States, 560 U.S. 817, 826 (2010). And a movant under the First Step Act “is
not entitled to a hearing.” Mannie, 971 F.3d at 1157. As a result, “we review the
court’s decision to proceed without a hearing only for an abuse of discretion.” Id.
There is also “no requirement that district courts hold a hearing in a § 3582(c)(2)
sentence-reduction proceeding.” United States v. Chavez-Meza, 854 F.3d 655, 657
(10th Cir. 2017), aff’d, 138 S. Ct. 1959 (2018). We have thoroughly reviewed the
record and conclude that the district court did not abuse its discretion by proceeding
without a hearing.
We next reject Kirtman’s argument that the district court erred by relying on
facts from the PSR to justify a sentence at the high end of the reduced guidelines
range.3 See Mannie, 971 F.3d at 1157–58 (affirming district court’s reliance in part
Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). But
because Kirtman’s sentence fell within the statutory range, the district court’s use of
judge-found facts did not run afoul of the rules announced in Apprendi and Alleyne.
See United States v. Zar, 790 F.3d 1036, 1055 (10th Cir. 2015) (“[T]he judicial fact
finding the defendants complain of occurred in the context of determining their
applicable sentencing ranges under the advisory sentencing Guidelines. The
Apprendi/Alleyne rule does not apply in this context.”).
3
Kirtman asserts that “the district court refused and continues to refuse to resolve
the factual disputes that were raised in [his] objection to his . . . PSR.” Aplt. Opening Br.
at 5. But at Kirtman’s sentencing, the district court heard testimony on Kirtman’s
objections to the PSR, “overrule[d] the objections,” and “adopt[ed] the presentence
report.” Supp. R. vol. 3 at 30.
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on “historical facts from [the defendant’s] initial sentencing” in declining to reduce
the defendant’s sentence under the First Step Act); United States v. Piper, 839 F.3d
1261, 1268 (10th Cir. 2016) (“[A] district court may look to its previous findings” in
a § 3582(c)(2) proceeding and “cannot make findings inconsistent with that of the
original sentencing court.” (internal quotation marks omitted)). And we reject
Kirtman’s related argument that the district court erred by enhancing his sentence
based on these facts because they were not alleged in the indictment. See United
States v. Glover, 413 F.3d 1206, 1208–10 (10th Cir. 2005) (finding “no merit” in the
argument that “the term of [the defendant’s] sentence should not have been increased
based on facts that were not alleged in the indictment”).
We likewise reject Kirtman’s argument that the district court erred by failing
to consider the factors contained in 18 U.S.C. § 3553(a) when setting his sentence
within the reduced range. The district court’s order stated that it “considered”
Kirtman’s motion and took “into account the policy statement set forth at USSG
§1B1.11 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that
they are applicable.” R. at 116. It then recited “Congress’s decision to lower the
statutory maximum penalty in this case, [Kirtman’s] behavior while incarcerated over
the past twenty-one years, and the substantial guideline range produced even with the
guideline reduction under Amendment 782, for which [Kirtman] is eligible.” Id.
And it concluded that the “aggravating factors in this case” warranted “a sentence at
the high end of [the] range.” Id. The district court satisfied its obligation to consider
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the § 3553(a) factors.4 See Chavez-Meza v. United States, 138 S. Ct. 1959, 1965
(2018) (“[I]t may be sufficient . . . that the judge simply relied upon the record, while
making clear that he or she has considered the parties’ arguments and taken account
of the § 3553(a) factors, among others.”). And it did not abuse its discretion by
selecting a sentence at the high end of the range.
We finally address Kirtman’s contention that the district court erred by failing
to appoint counsel in connection with his First Step Act motion. But Kirtman had
counsel in connection with his first Amendment 782 motion—which the district court
denied at the time but effectively granted in the order under review—and the court
granted all the relief it could grant under section 404(b) of the First Step Act. Having
thoroughly examined the record, we conclude the district court did not abuse its
discretion in failing to appoint counsel to assist Kirtman on his successful
sentence-reduction motion.
We affirm the district court’s reduction of Kirtman’s sentence by 91 months.
B. Kirtman’s Fraud-on-the-Court Motion
Kirtman filed his fraud-on-the-court motion “pursuant to Federal Rule of Civil
Procedure 60(d)(3).” R. at 95. The motion rehashed Kirtman’s allegations from a
prior § 2255 petition that officers carried out a “conspiracy” “to secure [his]
4
“Section 3582(c)(2) requires the court to consider the factors in 18 U.S.C.
§ 3553(a).” Piper, 839 F.3d at 1267 (emphasis and internal quotation marks
omitted). But the Ҥ 3553(a) factors . . . are . . . not required[] considerations when
ruling on a [First Step Act] motion.” Mannie, 971 F.3d at 1158 n.18.
8
conviction.” Id. at 96. It also alleged his sentence resulted from “fraudulent factual
findings” in his PSR that the district court “was deceived into accepting.” Id. at 95.
Where a motion “invok[es] the district court’s inherent power to set aside a
judgment obtained through fraud on the court . . . under [Rule] 60(d)(3)” and “asserts
or reasserts claims of error in the prisoner’s conviction,” we treat it as a § 2255
petition. United States v. Baker, 718 F.3d 1204, 1206 (10th Cir. 2013). We therefore
treat Kirtman’s fraud-on-the-court motion as a § 2255 petition. In reaching this
conclusion, we give no weight to Kirtman’s suggestion that his “motion is not to be
construed as a §2255 motion,” R. at 95, because “‘[t]he bar against successive § 2255
petitions’ may not be avoided ‘by simply styling a petition under a different name,’”
Kirtman 2009, 310 F. App’x at 281 (quoting United States v. Torres, 282 F.3d 1241,
1246 (10th Cir. 2002)).
Because Kirtman had filed other § 2255 petitions, § 2255(h) required him to
obtain authorization from this court before filing in the district court. Kirtman 2009,
310 F. App’x at 281. This he did not do. The district court therefore did “‘not even
have jurisdiction to deny the relief sought in the pleading.’” Id. (quoting United
States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)).
Kirtman also had to obtain a COA from this court before proceeding with his
appeal. 28 U.S.C. § 2253(c)(1)(B); see also United States v. Springer, 875 F.3d 968,
972 (10th Cir. 2017). This he did not do either. We nonetheless treat his notice of
appeal as a request for a COA. See Springer, 875 F.3d at 980. We grant a COA if
“jurists of reason could disagree with the district court’s resolution of [the
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petitioner’s] constitutional claims or . . . jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Buck v. Davis, 137 S. Ct.
759, 773 (2017) (internal quotation marks omitted).
The district court lacked subject matter jurisdiction to address Kirtman’s
motion, creating a “plain procedural bar,” Springer, 875 F.3d at 983 (internal
quotation marks omitted). “Under these circumstances, reasonable jurists could not
debate whether [Kirtman] could prevail on appeal when the district court lacked
jurisdiction to issue a final order.” Id. We deny Kirtman’s request for a COA.
III. Conclusion
We affirm the district court’s order reducing Kirtman’s sentence by 91 months.
We deny Kirtman’s request for a COA with respect to the district court’s order
denying his fraud-on-the-court motion, dismiss his appeal from that order, and direct
the district court to vacate the order. We grant Kirtman’s motion to proceed in forma
pauperis on appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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