United States v. Gregory Parrish

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 31, 2008
No. 08-11575 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-06004-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY PARRISH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 31, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Gregory Parrish appeals pro se his sentence of imprisonment for 100 months
after the district court reduced sua sponte Parrish’s original sentence of
imprisonment for 120 months for his drug and robbery crimes. 18 U.S.C. §
3582(c)(2); United States Sentencing Guidelines § 2D1.1(c) (Nov. 2007). Parrish
argues for the first time on appeal that the district court abused its discretion by
treating the amended guideline range as mandatory. We affirm.
I. BACKGROUND
Parrish was convicted in 2001 for conspiracy to possess with intent to
distribute at least five grams of crack cocaine, 21 U.S.C. §§ 846, 841(a)(1);
possession with intent to distribute crack cocaine, id. § 841(a)(1); attempted
robbery, 18 U.S.C. § 2112; and possession of a firearm in furtherance of a drug
trafficking offense, id. § 924(c). The district court sentenced Parrish to concurrent
terms of 120 months of imprisonment for his drug and robbery crimes. The court
also sentenced Parrish to a mandatory term of 60 months of imprisonment for his
firearm crime to run consecutive to the 120-month sentences.
In March 2008, the district court ordered sua sponte the government to
explain why Parrish was not entitled to a reduction of his sentence. See 18 U.S.C.
§ 3582(c)(2). The government conceded that Parrish was entitled to a two-level
reduction of his base offense level that provided a sentencing range between 100
and 125 months of imprisonment. See U.S.S.G. App. C, Amend. 713 (Supp. May
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1, 2008); id. App. C, Amend. 706 (Nov. 2007). The district court sentenced
Parrish sua sponte at the low end of the guideline range to 100 months of
imprisonment for his drug and robbery crimes to run consecutive to the 60 months
of imprisonment imposed for Parrish’s firearm crime. The court stated that it
considered a sentence at the low end of the guidelines to be “reasonable and
sufficient.”
After the district court filed its sentencing order, the court received a letter
from Parrish. In the letter, Parrish asked the court to consider the disparity
between the treatment of crack and powder cocaine offenses under the Sentencing
Guidelines; to treat the guidelines as advisory; and to “reflect on the history and
seriousness of [his] character . . . while applying 3553 factors.” The district court
reviewed Parrish’s letter and issued an amended order. The district court imposed
the same sentence and repeated its opinion that a sentence at the low end of the
guidelines range was “reasonable and sufficient.”
Parrish filed a notice of appeal in which he challenged his sentence on two
grounds. First, Parrish argued that the trial court abused its discretion by
sentencing him within the amended guidelines range. Second, Parrish alleged that
the district court did not consider the disparity between the sentencing ranges for
offenses involving crack and powder cocaine when it determined his sentence.
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III. STANDARD OF REVIEW
Objections or arguments that are not raised in the district court are reviewed
for plain error. United States v. Evans, 478 F.3d 1332, 1338 (11th Cir.), cert.
denied, 128 S. Ct. 257 (2007). To satisfy that standard, a defendant must establish
an error, that is plain, and that affects substantial rights. Id. We then may exercise
our discretion to recognize the error, but only if it “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id. (alteration in original).
III. DISCUSSION
A district court may sua sponte reduce a sentence when the guideline
imprisonment range is lowered and the court concludes, after considering the
factors in section 3553(a), that a “reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). This
decision requires that the “district court . . . make two distinct determinations.”
United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). The district court
must substitute the amended guideline range and then decide whether to reduce the
defendant’s sentence. Id.The district court did not plainly err in reducing Parrish’s sentence. The
court applied the new guideline range of 100 to 125 months and, after considering
the factors in 3553 and the evidence submitted by Parrish, concluded that a
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sentence at the low end of the guidelines was “reasonable and sufficient.” This
statement rebuts Parrish’s argument that the district court treated the guideline
range as mandatory. But see U.S.S.G. § 1B1.10(b)(2) (“the court shall not reduce
the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term
that is less than the minimum of the amended guideline range”).
Parrish’s remaining arguments also fail. Parrish contends that the district
court should have granted his motion for a six-level reduction, but Parrish did not
make that request. To the extent that Parrish attempts to claim in his reply brief
that the court did not consider the disparity in sentencing between crack and
powder cocaine, he abandoned the issue by not raising it in his initial brief. See
United States v. Britt, 437 F.3d 1103, 1104 (11th Cir. 2006).
Parrish’s amended sentence is AFFIRMED.
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