United States v. Christopher Wiley

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0235n.06
No. 09-4545
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, Apr 15, 2011
LEONARD GREEN, Clerk
Plaintiff-Appellee,
v. On Appeal from the United
States District Court for the
CHRISTOPHER WILEY, Northern District of Ohio at
Cleveland
Defendant-Appellant.
/
Before: GUY, CLAY, and McKEAGUE, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant Christopher Wiley appeals from
the denial of his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2). Defendant
pleaded guilty to one count of conspiracy to possess with intent to distribute crack cocaine,
for which he faced a statutory mandatory minimum sentence of 120 months of
imprisonment. However, as a result of the government’s motion for downward departure for
substantial assistance, defendant received a 92-month sentence. Later, defendant moved for
reduction of his sentence pursuant to § 3582(c)(2), relying on amendments to the United
States Sentencing Guidelines (USSG) that lowered the guideline sentencing ranges
No. 09-4545 2
applicable to most crack cocaine offenses. The district court denied the motion, and we
affirm.
I.
In June 2006, defendant was charged in a multi-count, multi-defendant indictment
with one count of conspiracy to possess with intent to distribute cocaine base within 1,000
feet of school property, and two counts of distribution of cocaine base within 1,000 feet of
school property. The government filed an information giving notice of its intention to seek
a statutory enhancement based on a prior felony drug conviction, which would result in a
mandatory minimum sentence of 120 months of imprisonment.
Defendant entered a written plea agreement, stipulating that he would be held
responsible for at least 5 grams but not more than 20 grams of cocaine base. At the time, that
quantity corresponded to a base offense level of 26 under USSG § 2D1.1(c)(6). The district
court increased the offense level by two because the offense was committed within 1,000 feet
of school property, USSG § 2D1.2(a)(1), and reduced the offense level by three for
acceptance of responsibility, USSG § 3E1.1(a) and (b). With a resulting offense level of 25
and a criminal history category of VI, the advisory guideline range would be 110 to 137
months, but the mandatory minimum sentence set the floor of the range at 120 months of
imprisonment. See USSG § 5G1.1(c).
The government also moved for a two-level downward departure for substantial
assistance pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(e), which allowed the district
court to pierce the 120-month mandatory minimum sentence. With an offense level of 23
No. 09-4545 3
and a criminal history category of VI, the district court found the otherwise-applicable
guideline sentencing range to be 92 to 114 months. Finding that a departure was warranted,
the district court sentenced defendant to a 92-month term of imprisonment to be followed by
three years of supervised release.
In 2009, defendant moved for reduction of sentence under § 3582(c)(2) based on
Amendment 706, as modified by Amendment 711, which reduced the base offense level for
most crack cocaine offenses by two levels, and Amendment 713, which allowed the changes
made by Amendments 706 and 711 to have retroactive effect. See USSG App. C, amends.
706, 711, and 713. The district court denied the motion, finding that the defendant was not
eligible for a reduction because he was subject to a mandatory minimum sentence. This
appeal followed.
II.
A district court’s decision whether to grant a motion for reduction in sentence under
§ 3582(c)(2) is generally reviewed for abuse of discretion. United States v. Curry, 606 F.3d
323, 327 (6th Cir. 2010). However, when the district court does not exercise its discretion
but instead concludes that it has no authority to reduce the defendant’s sentence under the
statute, the district court’s determination that the defendant is ineligible for a sentence
reduction is a question of law that we review de novo. Id.
A defendant’s term of imprisonment may not be modified except as provided by
statute. United States v. Johnson, 564 F.3d 419, 421 (6th Cir.), cert. denied, 130 S. Ct. 318
(2009). Section 3582(c)(2) allows a sentence modification “in the case of a defendant who
No. 09-4545 4
has been sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . . after considering the factors
set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2) (emphasis added). Guidance from the Sentencing Commission can be
found in USSG § 1B1.10(a), which provides, in part, that:
(2) Exclusions.—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—
....
(B) an amendment listed in subsection (c) does not
have the effect of lowering the defendant’s
applicable guideline range.
USSG § 1B1.10(a)(2) (eff. Mar. 3, 2008). The application notes clarify that a reduction of
sentence is neither authorized by § 3582(c)(2) nor consistent with USSG § 1B1.10 when the
amendment is applicable to the defendant, “but the amendment does not have the effect of
lowering the defendant’s applicable guideline range because of the operation of another
guideline or statutory provision (e.g., a statutory mandatory minimum term of
imprisonment).” USSG § 1B1.10, cmt. n.1. Taken together, the test for determining a
defendant’s eligibility for a sentence reduction under § 3582(c)(2) asks (1) whether the
sentence was “based on” a sentencing range that was subsequently lowered by the Sentencing
Commission; and (2) whether, consistent with the applicable policy statements, the
sentencing range lowered by the Commission was the particular defendant’s “applicable
No. 09-4545 5
guideline range.” United States v. Pembrook, 609 F.3d 381, 383-84 (6th Cir. 2010), cert.
denied, 131 S. Ct. 1599 (2011).
Arguing that he was eligible for a sentence reduction under § 3582(c)(2), defendant
contends that his sentence was “based on” the subsequently lowered crack cocaine guidelines
because the district court relied on a sentencing range derived from the crack cocaine
guidelines in granting the government’s motion for downward departure. A recent decision
of this court lends support to defendant’s argument on this point. See United States v.
Hameed, 614 F.3d 259, 264 (6th Cir. 2010). However, we need not determine whether the
sentence in this case was “based on” the crack cocaine guidelines because—as was also the
case in Hameed—the sentencing range lowered by Amendment 706 was not the defendant’s
“applicable guideline range.” Id. at 267-69; see also United States v. Maxwell, 391 F. App’x
446, 450 (6th Cir. 2010) (finding that because subsequently lowered guidelines range was
not applicable to the defendant because of a statutory minimum sentence, it was not
necessary to determine whether the original sentence was “based on” the crack cocaine
guidelines); United States v. Gudger, 390 F. App’x 482, 487 (6th Cir. 2010) (same). This
court has consistently recognized that the statutory mandatory minimum sentence provides
the appropriate starting point for calculating a downward departure under § 3553(e), and
specifically held that the extent of a departure under § 3553(e) must be based solely upon the
substantial assistance rendered by the defendant. Hameed, 614 F.3d at 268 (citing United
States v. Stewart, 306 F.3d 295, 332 (6th Cir. 2002), and United States v. Bullard, 390 F.3d
413, 416 (6th Cir. 2004)).
No. 09-4545 6
This case is indistinguishable from Johnson, 564 F.3d at 420-21, in which we held
that the defendant was not eligible for a reduction under § 3582(c)(2) because Amendment
706 did not lower the defendant’s applicable guideline range. In Johnson, the defendant’s
crack cocaine guideline range was 235 to 293 months, but because he was subject to a
mandatory minimum sentence of 240 months, the guideline range became 240 to 293 months.
The district court granted the government’s motion for downward departure for substantial
assistance and sentenced Johnson to a term of 108 months’ imprisonment. Johnson moved
for reduction of sentence under § 3582(c)(2) in reliance on Amendment 706. This court
affirmed the district court’s denial of that motion because Johnson’s sentence was based on
the statutory minimum sentence, which remained unchanged by Amendment 706. Id. at 423;
accord United States v. McPherson, 629 F.3d 609 (6th Cir. 2011); United States v. Stiff, No.
09-1115, 2011 WL 219904 (6th Cir. Jan. 24, 2011); Maxwell, 391 F. App’x at 450.
Finally, seeking to avoid the requirement that a reduction of sentence must be
consistent with the policy statements of the Sentencing Commission, defendant argues that
the district court erred by treating these policy statements as mandatory and by failing to
consider the § 3553(a) factors in violation of Booker and its progeny. See Spears v. United
States, 129 S. Ct. 840 (2009); Kimbrough v. United States, 552 U.S. 85 (2007); United States
v. Booker, 543 U.S. 220 (2005). Defendant relies on a split of authority concerning the
application of Booker in this context, but the Supreme Court has since held that § 3582(c)(2)
does not authorize a plenary resentencing proceeding and that Booker does not apply to
sentencing reduction proceedings under § 3582(c)(2). Dillon v. United States, 130 S. Ct.
No. 09-4545 7
2683, 2691, 2692-93 (2010). “A court must first determine that a reduction is consistent with
§ 1B1.10 before it may consider whether the authorized reduction is warranted, either in
whole or in part, according to the factors set forth in § 3553(a).” Id. at 2691. This court has
recognized Dillon as foreclosing the arguments made by defendant here. See United States
v. Watkins, 625 F.3d 277, 282 (6th Cir. 2010); Hameed, 614 F.3d at 267; Maxwell, 391 F.
App’x at 450-51; Gudger, 390 F. App’x at 487.
The district court’s order denying defendant’s motion for reduction of sentence under
§ 3582(c)(2) is AFFIRMED.