United States v. Larry Purnell

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1283
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L ARRY P URNELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 471—Elaine E. Bucklo, Judge.
A RGUED S EPTEMBER 25, 2012—D ECIDED D ECEMBER 3, 2012
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Appellant Larry Purnell
sought a reduction in his sentence for crack cocaine
distribution in light of the retroactive 2011 reductions
to the sentencing guideline ranges for crack-related
offenses. See 18 U.S.C. § 3582(c)(2). The district court
denied relief. The court concluded that Purnell’s
original sentence remained within the revised guideline
range and that his post-conviction conduct — most
2 No. 12-1283
notably statements he made under oath that directly
contradicted what he had said under oath in his guilty
plea colloquy and in his plea agreement — weighed
against granting this discretionary relief. Purnell
appeals, arguing that the district court abused its discre-
tion by holding his post-sentencing legal challenges to
his convictions against him. We have jurisdiction under
18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
Although as a general matter, a district court may not
hold against a prisoner his resort to the courts, we see
no abuse of discretion where the district court deciding
a request for a reduced sentence takes into account a
defendant’s false statements to the court.
I. Factual and Procedural Background
On September 24, 2007, Larry Purnell pled guilty to
distributing crack cocaine in excess of five grams, 21
U.S.C. § 841(a)(1), and to knowingly carrying or using
a firearm in furtherance of a drug trafficking crime,
18 U.S.C. § 924(c)(1)(A). The charges arose out of three
transactions over a two-week period in which Purnell
sold crack cocaine to an undercover agent in amounts
ranging from 27 to 61 grams. During one of these trans-
actions, Purnell revealed a .45 caliber pistol and told the
agent that he could use the gun to “shoot someone
through the door” of the house. These facts were
presented to the district court in Purnell’s written plea
agreement. During his oral plea colloquy, Purnell stated
affirmatively under oath that they were true.
No. 12-1283 3
Purnell received several valuable concessions from
the government in exchange for pleading guilty. As
someone with a prior drug distribution felony, he was
facing a mandatory minimum sentence of 20 years for
distributing more than 50 grams of crack cocaine. His
ultimate sentence for the crack cocaine, though, was
only 78 months. Under the plea agreement, the govern-
ment dismissed two charges for distributing more than
50 grams, which carried ten-year mandatory minimum
sentences. The government also agreed not to seek
the prior offender sentence enhancement under 21 U.S.C.
§ 851(a)(1)(A). That enhancement would have meant
a mandatory minimum sentence of ten years for the
remaining charge for distributing more than five grams
of crack and would have doubled the mandatory mini-
mum sentence for the dismissed offenses to 20 years.
Finally, the government agreed to move for a three-
level reduction in Purnell’s guideline offense level for
his acceptance of responsibility for his actions. See
U.S.S.G. § 3E.1.1(a), (b). In turn Purnell not only pled
guilty but also waived his right to appeal or collaterally
attack his sentence, except on the grounds that the
waiver was involuntary or defective for ineffective assis-
tance of counsel.
The result was a guideline range of 78 to 97 months in
prison for the crack offense. The district court accepted
the plea and the government’s recommendation on ac-
ceptance of responsibility, and sentenced Purnell to
78 months for the crack offense. Without the acceptance
of responsibility reduction, Purnell would have faced
4 No. 12-1283
a guideline range of 108 to 135 months on the crack
offense alone.1
Several months after being sentenced, Purnell had a
change of heart. In a series of motions before the
district court, Purnell attacked his sentence for the gun
conviction. Styled as attacks on the voluntariness of
the plea agreement and the effectiveness of counsel,
Purnell argued that he could not have violated section
924(c)(1)(A) because the gun in question was only a
BB gun, albeit a realistic-looking one.2 This claim was
in direct conflict with the account of the gun provided
in his plea agreement, but Purnell alleged that the gov-
ernment agent lied about observing a real gun during
the transaction and that the agent produced a gun trace
report based on a made-up serial number. He further
claimed that his attorney recovered the gun in question
from Purnell’s house and submitted photographs that
proved it was a BB gun. Purnell contended that because
his lawyer knew all of this information and still encour-
1
Purnell was also sentenced to a consecutive term of
60 months for the gun charge, the mandatory minimum sen-
tence. While he has challenged his sentence for the gun
offense on other occasions, it cannot be affected by his peti-
tion under 18 U.S.C. § 3582(c)(2) for relief from the crack
cocaine sentence.
2
This distinction matters because a firearm is defined for
these purposes as a weapon that is “designed to or may
readily be converted to expel a projectile by the action of an
explosive.” 18 U.S.C. § 921(3)(A). An air-powered BB gun is
not a firearm, no matter what it looks like.
No. 12-1283 5
aged him to plead guilty, his plea was involuntary,
his counsel was ineffective, and his gun conviction
was invalid. All of these challenges have been
rejected as unfounded or procedurally barred. See, e.g.,
United States v. Purnell, 635 F. Supp. 2d 824 (N.D. Ill. 2009)
(denying section 2255 motion challenging gun convic-
tion as unfounded); United States v. Purnell, No. 09-3127
(7th Cir. Mar. 16, 2010) (denying request for certif-
icate of appealability); United States v. Purnell, No. 06
CR 471-1 (N.D. Ill. Nov. 21, 2011) (denying additional
motion to set aside sentence), affirmed, United States
v. Purnell, No. 11-3737, 2012 WL 4378267 (7th Cir. Sept. 26,
2012) (motion labeled as a section 3582(c)(2) motion
challenging gun sentence should be construed as a
section 2255 motion barred as a second or successive
motion).
In 2011, the Sentencing Commission reduced the guide-
line offense levels for crack cocaine offenses to comply
with the Fair Sentencing Act of 2010. The Commission
also exercised its power under 28 U.S.C. § 994(u), 18 U.S.C.
§ 3582(c)(2), and U.S.S.G. § 1B1.10 to provide that its
2011 crack cocaine guideline reductions should apply
retroactively. If the 2011 Guidelines had been in effect
when Purnell was sentenced, his recommended guide-
line range would have been 63 to 78 months for the
crack offense instead of the 78 to 97 month range
applied to him.
Following the 2011 amendments, Purnell moved the
district court for a sentence reduction under 18 U.S.C.
§ 3582(c)(2), which permits a district court to reduce a
sentence in light of a retroactive guideline reduc-
6 No. 12-1283
tion. The district court denied the motion, stating that
the 78-month sentence remained within the reduced
guideline range and that Purnell’s false statements in
contesting his firearm conviction weighed against
granting this discretionary relief. This appeal followed.
II. Analysis
We review a district court’s denial of a sentence re-
duction under 18 U.S.C. § 3582(c)(2) for an abuse of
discretion. United States v. Davis, 682 F.3d 596, 609 (7th
Cir. 2012). An abuse of discretion occurs when a
district court “resolves a matter in a way that no rea-
sonable jurist would, or when its decision strikes us
as fundamentally wrong, arbitrary or fanciful.” United
States v. Paul, 542 F.3d 596, 599 (7th Cir. 2008). The issue
is not whether we would reach the same decision as
the district court but whether the district court’s rea-
soning process and result were within broad bounds
of reasonableness. See Davis, 682 F.3d at 609.
Section 3582(c)(2) provides a district court with discre-
tion to reduce an imposed term of imprisonment when
a defendant was sentenced based on a guideline sen-
tencing range that was later lowered by the Sentencing
Commission with a policy statement giving retroactive
effect to the reduction. See Dillon v. United States, 130
S. Ct. 2683, 2690 (2010). Purnell’s sentence was based
on such a guideline range that was reduced with retroac-
tive effect. In any individual case, however, such a re-
duction is discretionary. The statute provides that a
court “may reduce the term of imprisonment, after con-
No. 12-1283 7
sidering the factors set forth in section 3553(a) to the
extent 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) (em-
phasis added).
Section 3553(a) and the applicable policy statement
permit the court to consider a variety of factors when
hearing such motions. Section 3553(a) factors include
“the nature and circumstances of the offense and the
history and characteristics of the defendant;” the need
for the sentence imposed to reflect the seriousness of
the offense, to promote respect for the law, to afford
adequate deterrence to criminal conduct, and to protect
the public from further crimes; and “the need to
avoid unwarranted sentence disparities.” 18 U.S.C.
§ 3553(a)(1), (2), (6). The Sentencing Commission teaches
that a court shall consider “the nature and seriousness
of the danger to any person or the community” posed
by the defendant, and that the court “may consider post-
sentencing conduct of the defendant.” See U.S.S.G.
§ 1B1.10, App. Note 1(B). A court deciding a motion
for a sentence reduction is not required to address
every section 3553(a) factor. All that “is necessary is
simply a statement of reasons that is consistent with
§ 3553(a) and not one that analyzes the relationship
between each factor.” United States v. Johnson, 580 F.3d
567, 570 (7th Cir. 2009).
Purnell argues that the district court erred in failing
to address each section 3553(a) factor presented, but
such an explanation is not required when deciding a
8 No. 12-1283
section 3582(c)(2) motion. We do not require the district
court to analyze each section 3553(a) factor, nor do
we require the district court to provide a detailed ex-
planation of its reasoning. The court is required only
to articulate the basis for its decision clearly enough
for this court to determine whether the decision is rea-
sonable. United States v. Marion, 590 F.3d 475, 477-78
(7th Cir. 2009).
Here, the district court’s decision complied with
these requirements. In the docket entry denying the
motion, the court concluded, “after considering the
factors under 18 U.S.C. § 3553(a), in particular his post-
sentencing conduct, that [Purnell] should not be given a
reduction.” The court then detailed the specific instances
of false statements Purnell had made to the court that
constituted the troublesome post-sentencing conduct —
conduct that also speaks to the defendant’s “history and
characteristics,” one of the section 3553(a) factors. The
judge also noted that the sentence remained within
the recommended sentence range under the amended
guidelines. These considerations are all “consistent with
§ 3553(a),” and the court was not required to do more.
See Johnson, 580 F.3d at 570.
The record supports the district court’s decision.
Purnell’s post-conviction filings were in direct conflict
with his statements in the plea colloquy and the plea
agreement, an agreement under which he received sub-
stantial benefits. In the plea agreement he admitted that
he possessed a .45 caliber pistol; in his post-conviction
filings he claimed it was only a BB gun. We may reject
No. 12-1283 9
out of hand, absent a compelling explanation, factual
allegations that depend on the defendant having com-
mitted perjury at a plea hearing. See United States v.
Peterson, 414 F.3d 825, 827 (7th Cir. 2005); United States
v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999) (“A de-
fendant has no legal entitlement to benefit by con-
tradicting himself under oath.”). The district court did
not err in concluding that Purnell repeatedly made
false statements to the court following his conviction,
and it was reasonable to conclude that this post-convic-
tion conduct weighed against a sentence reduction.
Purnell also argues that the district court erred by
basing its decision on post-conviction conduct instead
of the section 3553(a) factors. He believes this is problem-
atic because post-conviction conduct is a discretionary
consideration while section 3582(c)(2) and Application
Note 1(B) to U.S.S.G. § 1B1.10 require consideration of
the section 3553(a) factors. While we have already
noted that the post-conviction conduct in question
also speaks to the “history and characteristics” factor
under section 3553(a), Purnell’s argument is also legally
flawed and would require far more of district courts
than we have in the past.
The argument is flawed for two reasons. First, section
3582(c)(2) directs the court to consider the section 3553(a)
factors only “to the extent that they are applicable.”
The court is not required to consider every section 3553(a)
factor; the court is required to consider only the fac-
tors that apply in a particular case. Second, the fact that
post-sentencing conduct is a permissible consideration
10 No. 12-1283
rather than a mandatory one does not mean that it is a
less favored consideration. There are cases where some
section 3553(a) factors point toward a sentence reduction
but the defendant’s post-conviction conduct, such as
frequent misconduct in prison, suggests that a reduction
is not warranted. See United States v. Young, 555 F.3d 611(7th Cir. 2009) (affirming denial of relief under section
3582(c)(2) based on prison discipline problems). Applica-
tion Note 1(B) to U.S.S.G. § 1B1.10 makes clear that
such post-conviction conduct is a permissible basis for
denying a sentence reduction. The district court did not
err by basing its decision primarily on this defendant’s
later conduct.
Our decision today should not be read as endorsing
denials of section 3582(c)(2) motions based solely on
vexatious litigation or post-conviction filings that skirt
or challenge the appellate and section 2255 waivers in
plea bargains. The repeated filing of frivolous motions
is undoubtedly aggravating for judges with busy dock-
ets. Frustration in the face of repeated post-convic-
tion filings is understandable, but it is not a considera-
tion contemplated by section 3582(c)(2) or the Sen-
tencing Commission. Federal courts recognize that
prison officials may not retaliate against a prisoner for
filing lawsuits against those officials. See, e.g., Higgs v.
Carver, 286 F.3d 437, 439 (7th Cir. 2002) (reversing dis-
missal); Babcock v. White, 102 F.3d 267, 276 (7th Cir. 1996)
(reversing grant of qualified immunity; prisoner’s right
to be free from retaliation for exercising rights to chal-
lenge conditions of confinement was clearly established).
It would not be appropriate or permissible for federal
No. 12-1283 11
courts to retaliate for similar reasons. While there is
language in the district court’s decision that expresses
understandable frustration with Purnell’s litigation,
we think it is clear that the district court did not base
its denial of the section 3582(c)(2) motion on an-
noyance with his post-conviction filings. Rather, the
district court concluded that Purnell made repeated
false statements to the court and that this post-convic-
tion conduct was contrary to the award of a discre-
tionary sentence reduction.
Because Purnell’s sentence remains within the
amended guideline range, and because the district
court’s consideration of Purnell’s repeated false state-
ments was reasonable under section 3582(c)(2), the
district court’s denial of a sentence reduction is A FFIRMED.
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