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United States v. Key, No. 08-3218-cr (2d Cir. April 28, 2010) (Miner, Cabranes, Wesley, CJJ) (per curiam)

This interesting per curiam holds that a defendant's appeal of the denial of his crack resentencing motion under 18 U.S.C. § 3582(c)(2) was rendered moot by his release from prison.

Although Key was still on supervised release, the court found that the possibility that the district court would reduce or terminate his supervised release term - assuming that it could - was "remote and speculative." The district court's findings in denying the § 3582(c)(2) motion caused the circuit to "strongly doubt" that the court would exercise its discretion in that way.

Out Of Range

United States v. Main, No. 08-4088-cr (2d Cir. August 27, 2009) (Walker, Wallace, CJJ)

Christopher Main pled guilty to a crack cocaine offense pursuant to a Rule 11(c)(1)(C) agreement that stipulated to maximum sentence of 96 months, which was below the 120 to 150-month guideline range, and provided a “carve-out” for Main to seek a downward departure. The district court accepted the plea agreement, granted Main a modest departure and sentenced him to 84 months’ imprisonment.

Three years later, Main moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10 because the Sentencing Commission had retroactively ameliorated the guideline covering crack offenses. The district court denied the motion, and the circuit affirmed.

Under the statute, a defendant is eligible for a sentence reduction only where the original sentence was “based on a sentencing range” that the Sentencing Commission has subsequently lowered. Here, however, Main’s sentence was “based on” the terms of his plea agreement, which stipulated to a sentence that was lower than that recommended by the guidelines. Under Rule 11(c)(1)(C), once the court accepted the agreement, it was bound to impose the agreed-upon sentence. Main’s sentence was therefore not “based on” the range recommended by the guideline for crack cocaine offenses.

The court rejected Main’s arguments that because his plea agreement provided for a sentencing cap, not a particular sentence, and permitted him to seek a downward departure, the sentencing guidelines still “played a role in determining his sentence.” Section 2D1.1, the particular guideline that the Sentencing Commission subsequently modified, played “no role in the sentence that Main received.”

Reduction Ad Absurdum

United States v. Savoy, No. 08-4800-cr (2d Cir. May 27, 2009)(per curiam)

After a 1998 jury trial on crack distribution charges, Demetric Savoy faced a guideline sentencing range of 188 to 235 months’ imprisonment, and received a sentence at the bottom of the range. In 2008, he moved, under 18 U.S.C. § 3582(c)(2), for a sentence reduction under the retroactive ameliorating amendment to the crack guidelines. With that amendment, Savoy faced a revised range of 151 to 188. However, in the motion, he argued that the court should sentence him to 120 months. The district court granted the § 3583(c)(2) motion and reduced the sentence to 151 months, but refused to go lower. The court believed that the relevant guideline provision, § 1B1.10, was binding and precluded a sentence below the amended range.

On appeal, the circuit affirmed. The language of § 1B.10 is mandatory: the court “shall not reduce the defendant’s term of imprisonment under ... § 3582(c)(2) ... to a term that is less than the minimum of the amended guideline range.” Savoy argued that Booker and its progeny have made this mandatory language advisory. The circuit disagreed, but took the easy way out. Instead of reasoning its way through the issue, the court simply noted that seven other circuits have held that sentencing courts lack authority to reduce a sentence below the amended guideline range, and noted that it was “persuaded by the reasoning of those courts.”

There is, however, a circuit split on the issue, so perhaps it will go up.

Caboose of Discretion

United States v. Borden, No. 08-1625-cr (2d Cir. April 22, 2009: amended opinion) (Cabranes, Hall, CJJ, Sweet, DJ)

Every other circuit to consider the question has concluded that a district court’s denial of a crack retroactivity motion under 18 U.S.C. § 3582(c)(2) is reviewed for abuse of discretion. With this decision, the Second Circuit joins the train.

Applying that standard here, the court affirmed. The district court reviewed the relevant records, considered the § 3553(a) factors and cited an appropriate reason - the danger that Borden posed to the community. In light of Borden’s lengthy criminal history, the district court was free to reject the Probation Department’s conclusion that Borden no longer “pose[d] a threat to society.”

Crack a Smile

United States v. McGee, No. 08-1619-cr (2d Cir. January 23, 2009) (Pooler, Raggi, Livingson, CJJ) (per curiam)

Darius McGee, convicted of a crack cocaine offense, was a career offender. At his sentencing, however, the district court downwardly departed. It disregarded the career offender guideline range, and sentenced him under the offense level that would otherwise have applied. Subsequently, he moved for a sentence reduction under 18 U.S.C. § 3582(c), seeking the benefit of the retroactive two-point offense level reduction for crack cocaine offenses. Because he had originally been a career offender, however, the district court denied the motion.

Calling the issue a “very close one,” the appellate court disagreed, and remanded the case for reconsideration of the 3582(c) motion. The court noted that McGee’s sentence was indeed “based on” a range that was subsequently lowered by the Sentencing Commission “because the district court premised McGee’s ultimate sentence on the crack cocaine guidelines.” Here, the district court expressly indicated that it was using the offense level that McGee would have been in absent the career offender designation, which suggests strongly that it would have used the lower offense level if the sentencing had taken place after the amended crack guidelines went into effect.

The court also rejected the government’s argument that the policy statement implementing the amendment refers specifically to the pre-departure guideline range. Although this argument was “not without force,” the court concluded that the policy statement “does not preclude the possibility that a defendant who was, even if by virtue of a departure, sentenced ‘based on’ the crack guidelines would be eligible for a reduction.”

Crack Under Pressure

United States v. Williams, No. 08-1065-cr (2d Cir. January 7, 2009) (Hall, Livingston, Gibson, CJJ)

Here, the defendant, Saquan Lewis, unsuccessfully appealed the district court's denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c) based on the retroactive amendment to the Guideline for offenses involving crack cocaine.

The District Court Proceedings

Lewis had originally pled guilty to trafficking in crack cocaine and a 924(c) charge under a cooperation agreement. At sentencing, he agreed that he was responsible for between 50 and 150 grams of crack which, under the applicable version of the Guidelines, resulted in an offense level of 32, with 3 levels deducted for acceptance of responsibility. His sentencing range on the crack count was 97 to 121 months, but due to his prior felony, he faced a 20-year mandatory minimum on that charge and a 5-year consecutive sentence on the 924(c). After granting the government’s motion under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), the court sentenced him to a total of 100 months’ imprisonment. There was “no evidence” that the range recommended by drug Guideline “played any role in the district court’s determination” of the sentence.

Under the November 1, 2007, crack amendment Lewis’ offense level on the drug charge would have dropped by two levels, to 27. But the district court denied his § 3582(c)(2) motion because the original sentence was based on a § 3553(e) departure and the original sentencing range “had no bearing” on the sentence.

The Appeal

The circuit affirmed. Section 3582(c)(2) authorizes district courts to modify the sentence of a defendant “who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission ... if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission.” Lewis, although nominally exposed to a sentencing range of 97 to 121 months, in fact, was subject to a 240-month mandatory minimum and, under U.S.S.G. § 5G1.1(b), that sentence became “the guideline sentence.”

Lewis argued that, as a matter of statutory interpretation, the term “Guideline sentence” was not the same as the term “Guideline range,” but the circuit disagreed. For him, the original range of 97 to 121 months “had no bearing on what became Lewis’ Guideline sentence because the 240-month mandatory minimum” subsumed and displaced “the otherwise applicable guideline range.” Once the mandatory minimum applied, his sentence was no longer “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”

This conclusion was further supported by a policy statement that provides that a reduction is not authorized under § 3582(c)(2) if the Guideline amendment “does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision” such as a statutory mandatory minimum term of imprisonment. Lewis was, in fact, subject to a 240-month mandatory minimum, and the court rejected his argument that, in departing below that minimum, the district court “must have” relied upon the original crack cocaine Guideline range. The district court expressly held that this range had “no bearing” on his sentence. The circuit approved of this reasoning, noting that it was consistent with its own rule that § 3553(e) departures may be “based only on substantial assistance to the government and on no other mitigating considerations.”