United States v. Lewis Alston

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5204
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEWIS ALSTON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:09-cr-00095-FL-1)
Argued: May 16, 2013 Decided: July 17, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Wilkinson and Senior Judge Hamilton joined.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
2
AGEE, Circuit Judge:
The United States District Court for the Eastern District
of North Carolina originally sentenced Lewis Alston (“Alston”)
to 150 months’ imprisonment, but that sentence was vacated on
appeal and remanded for resentencing. See United States v.
Alston (Alston I), 447 F. App’x 498, 500 (4th Cir. 2011). On
remand, the district court sentenced Alston to an above-
Guidelines sentence of 120 months’ imprisonment from which he
now appeals. For the reasons set forth below, we affirm the
judgment of the district court. 1
I
Alston pleaded guilty to possession of five grams or more
of crack cocaine in violation of 21 U.S.C. § 841 and to
maintaining a dwelling for the use of cocaine in violation of 21
U.S.C. § 856. The government filed a notice of its intent to
seek an enhanced penalty pursuant to 21 U.S.C. §§ 841(b)(1)(B)
and 851, contending that Alston had prior convictions for felony
drug offenses punishable by imprisonment for more than one year
and subjecting Alston to a statutory minimum of 10 years’
1
Alston raises no issue concerning his underlying
conviction on appeal.
3
imprisonment. At Alston’s original sentencing hearing, the
district court concluded that Alston’s total offense level was
27 and his criminal history category was V, based upon his prior
convictions for felony drug offenses punishable by imprisonment
for more than one year. 2 Based upon these calculations, the
district court determined that Alston’s advisory range of
imprisonment under the United States Sentencing Guidelines (the
“Guidelines”) was 120 to 150 months. 3
Once the district court determined Alston’s Guidelines
range, the government moved for an upward departure pursuant to
section 4A1.3 of the Guidelines, arguing that the range did not
properly account for Alston’s criminal history. The district
court denied the government’s upward departure motion and
sentenced Alston to 150 months’ imprisonment.
2
Under our then-existing precedent in United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005), the district court
treated all of Alston’s prior convictions for which the maximum
aggravated sentence for the worst offender under the applicable
statute was greater than one year as felony drug offenses. This
determination was made without regard to whether Alston himself
could have been sentenced to more than one year of imprisonment
for those convictions.
3
Alston was found accountable for 22.28 grams of crack
cocaine.
4
Alston appealed, and the government did not cross-appeal.
While Alston’s appeal was pending, this Court decided United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which
expressly overruled Harp. Simmons, 649 F.3d at 241 (concluding
that “Harp no longer remains good law.”). As Alston had been
sentenced in accordance with Harp, we “vacate[d Alston’s]
sentence, and remand[ed] for resentencing in accordance with
Simmons.” See Alston I, 447 F. App’x at 500.
On remand, the probation officer recalculated Alston’s
total offense level as 23 and his criminal history category as
IV, resulting in a Guidelines range of 70 to 87 months’
imprisonment. Alston requested a sentence of 70 months, the low
end of the Guidelines range. The government moved for an upward
departure pursuant to section 4A1.3 of the Guidelines, again
arguing that Alston’s suggested range of imprisonment did not
properly account for his criminal history. Alston objected to
the government’s upward departure motion, contending that the
district court had already ruled on the issue at his prior
sentencing hearing and that the government chose not to appeal
that ruling. The district court granted the government’s upward
departure motion over Alston’s objection and determined that “a
sentence within the range of 100 to 125 months is one that will
accomplish the purposes of the sentencing.” J.A. 89. After
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balancing the factors listed in § 3553(a), the district court
sentenced Alston to 120 months’ imprisonment and five years’
supervised release on Count One and two years’ supervised
release on Count Two, to run concurrently. The district court
stated that it would impose the same sentence “regardless of the
advice of the [G]uidelines.” J.A. 91.
At the conclusion of Alston’s sentencing hearing, he
requested that the court retroactively apply the Fair Sentencing
Act (“FSA”). Congress had enacted the FSA after Alston was
convicted but before his resentencing. The district court noted
that it did “not find the Fair Sentencing Act retroactive under
these circumstances” but that Alston’s sentence was “quite
obviously still within [the] range” dictated by the FSA. J.A.
92. The parties agreed that, under the FSA, Alston would have
faced a maximum of 20 years’ imprisonment, whereas prior to its
enactment, Alston would have been subject to a maximum of 40
years’ imprisonment.
Alston timely appealed. We have jurisdiction under 28
U.S.C. § 1291.
II
We review a district court’s interpretation of the mandate
rule de novo. United States v. Susi, 674 F.3d 278, 283 (4th Cir.
6
2012). We also review questions of law de novo. United States v.
Gomez, 690 F.3d 194, 197 (4th Cir. 2012). And we review a
district court’s sentencing decisions for an abuse of
discretion. United States v. King, 673 F.3d 274, 283 (4th Cir.
2012).
III
Alston raises three issues on appeal. 4 First, Alston
contends that the district court improperly ignored this Court’s
mandate in Alston I when it granted the government’s upward
departure motion on remand. Second, Alston argues that the
district court improperly declined to retroactively apply the
4
Alston makes a fourth argument that is not properly before
the Court. He argues that the district court erred in imposing a
five-year term of supervised release without specifically
discussing and departing from Guidelines section 5D1.2, which
suggested a supervised release term of three years. Alston
raises this argument for the first time in his reply brief and
did not raise it before the district court. His argument is
therefore waived. See Cavallo v. Star Enter., 100 F.3d 1150,
1152 n.2 (4th Cir. 1996) (holding that “an issue first argued in
a reply brief is not properly before a court of appeals”).
Moreover, Alston’s term of supervised release is within the
bounds of § 841(b)(1)(C), which provides for a minimum of three
years’ supervised release and “does not cap the period of
supervised release that a district court may impose.” United
States v. Pratt, 239 F.3d 640, 647 (4th Cir. 2001).
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FSA. Third, Alston argues that his sentence is substantively
unreasonable.
A
The “mandate rule” is a specific application of the law of
the case doctrine that prohibits a lower court from
reconsidering on remand issues laid to rest by a mandate of the
higher court. Susi, 674 F.3d at 283. The mandate rule
“forecloses litigation of issues decided by the district court
but foregone on appeal or otherwise waived.” United States v.
Bell, 5 F.3d 64, 66 (4th Cir. 1993). However, “to the extent
that the mandate of the appellate court instructs or permits
reconsideration of sentencing issues on remand, the district
court may consider the issue de novo, entertaining any relevant
evidence on that issue that it could have heard at the first
hearing.” Id. at 67 (quotation marks omitted).
Alston argues that because the district court had
considered and denied the government’s initial section 4A1.3
upward departure motion in his initial sentencing and the
government did not appeal that ruling, the government “could not
. . . ask the district court to resuscitate the departure issue
upon remand.” Opening Br. 14. The Fourth Circuit’s mandate,
Alston asserts, limited the district court to considering on
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remand only its application of § 851(b)(1)(B) in light of
Simmons.
Alston correctly points out that a district court on remand
“may not reconsider issues the mandate laid to rest.” Susi, 674
F.3d at 283. Still, when “an appellate court sets aside a
defendant’s ‘entire sentence and remand[s] for a de novo
resentencing’ pursuant to a general mandate, the district court
on resentencing is not bound by its prior consideration of the
case.” Id. at 284 (quoting Pepper v. United States, 131 S. Ct.
1229, 1250–51 (2011)). Rather,
[b]ecause a district court’s original sentencing
intent may be undermined by altering one portion of
the calculus, an appellate court when reversing one
part of a defendant’s sentence may vacate the entire
sentence . . . so that, on remand, the trial court can
reconfigure the sentencing plan . . . to satisfy the
sentencing factors in 18 U.S.C. § 3553(a).
Pepper, 131 S. Ct. at 1250–51 (quotation marks and citations
omitted).
In this case, our prior panel “vacate[d Alston’s] sentence”
in toto and remanded for a complete resentencing “in accordance
with Simmons,” Alston I, 447 F. App’x at 500, leaving open the
district court’s ability to “reconfigure the sentencing plan
. . . to satisfy the sentencing factors in 18 U.S.C. § 3553(a),”
Pepper, 131 S. Ct. at 1251. Nothing in our mandate altered the
district court’s duty to “make an individualized assessment [of
9
Alston] based on the facts presented.” Gall v. United States,
552 U.S. 38, 50 (2007). Indeed, as the district court expressed
on remand, it denied the government’s upward departure motion at
Alston’s original sentencing hearing only because Alston’s
original Guidelines sentence range of up to 150 months
“accomplished the purposes of the sentencing.” J.A. 83.
On remand, the district court faced a much altered
Guidelines range landscape, but no diminution in its duty to
apply the § 3553(a) factors to determine Alston’s appropriate
sentence. Prohibiting the district court from taking a holistic
approach to Alston’s resentencing would not only undermine the
district court’s original sentencing intent, it would prevent
the district court from making the very individualized
assessment of Alston required by § 3553(a). See Gall, 552 U.S.
at 50. Nothing in the Alston I mandate dealt with the district
court’s ability to consider a section 4A1.3 departure. Thus,
because we vacated Alston’s entire sentence and remanded for de
novo resentencing, the district court correctly determined that
the mandate rule did not preclude it from considering the
government’s renewed section 4A1.3 upward departure motion.
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B
Alston argues that his suggested term of imprisonment under
the Guidelines would have been different had the district court
retroactively applied the FSA, which would have changed the
district court’s Guidelines calculation and which, in turn,
could have affected the district court’s § 3553(a)
determination.
The FSA applies retroactively. Dorsey v. United States, 132
S. Ct. 2321, 2331 (2012). Thus, the district court erred when it
declined to retroactively apply the FSA to Alston on remand. The
government concedes this error, but argues that resentencing is
unwarranted because the error was harmless. See United States v.
Hargrove, 701 F.3d 156, 161–62 (4th Cir. 2012). We agree. 5
Alston argues that the district court “misunderstood the
nature of Mr. Alston’s offense” because, by declining to apply
the FSA, it believed that “Congress intended to punish
[Alston’s] offense much more severely than it actually did.”
Opening Br. 21. As we recently reaffirmed in United States v.
Hargrove, 701 F.3d 156 (4th Cir. 2012), however, we will not
5
The parties agree that Alston’s sentence of 120 months’
imprisonment is within the statutory range dictated by the FSA,
which establishes a statutory maximum sentence of 20 years’
imprisonment.
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vacate a sentence when resentencing would be “‘little more than
an empty formality, [and] the sentence the district court would
impose on remand is a foregone conclusion.’” 701 F.3d at 162 n.3
(quoting United States v. Revels, 455 F.3d 448, 452 (4th Cir.
2006)).
The district court made clear at Alston’s resentencing that
it would have imposed the same sentence “regardless of the
advice of the [G]uidelines,” J.A. 91, and specifically noted
that his sentence was “quite obviously still within [the] range”
dictated by the FSA. J.A. 92. The district court thus expressly
ruled that the lower statutory maximum of the FSA would have had
no effect on its § 3553(a) determination.
While the district court erred in concluding that the FSA
did not apply retroactively, that error was harmless as
demonstrated by the district court’s statements at sentencing.
C
Alston finally argues that his sentence is substantively
unreasonable because the district court increased his sentence
to ensure that Alston had the opportunity to receive drug
treatment, mental health treatment, and vocational training in
prison. Alston correctly notes that a district court cannot
“impose[] or lengthen[] a prison term in order to promote a
12
criminal defendant’s rehabilitation.” Tapia v. United States,
131 S. Ct. 2382, 2385 (2011). Yet a review of the sentencing
transcript reveals that the district court did not, in fact,
base the length of Alston’s sentence on his rehabilitative
needs.
After determining the appropriate sentence under § 3553(a),
the district court stated,
This is a sentence sufficient, but not greater than
necessary. This is a sentence that will promote
respect for the law; that will discourage this type of
conduct. But very importantly, it protects the public
from you and . . . provide[s] the needed treatment of
care in the most effective manner possible.
J.A. 89–90. In contrast, in Tapia, the district court expressly
stated that its sentence “ha[d] to be sufficient . . . to
provide needed correctional treatment” and openly imposed a
sentence to ensure that the defendant was “in long enough” to
participate in a certain drug rehabilitation program. 131 S. Ct.
at 2392–93.
The district court here did not choose the length of
Alston’s prison sentence to correspond with the length of a
rehabilitation program provided to prisoners. Rather, the
district court simply restated the factors listed in
§ 3553(a)(2) and reflected how each of those factors was met by
Alston’s 120-month sentence. Section 3553(a)(2) expressly
requires district courts to consider
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the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2) (emphasis added).
Clearly, Tapia does not prevent a district court from
considering the § 3553(a)(2)(D) factor in the course of a
sentencing proceeding. Rather, Tapia stands for the proposition
that a court cannot impose or lengthen a sentence to ensure that
a defendant can complete a training or rehabilitation program.
See Tapia, 131 S. Ct. at 2392. Accordingly, the district court
committed no error in considering whether Alston’s sentence
would provide him with “correctional treatment in the most
effective manner,” as expressly required by 18 U.S.C.
§ 3553(a)(2)(D).
IV
For all the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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