United States v. Mock, No. 09-4154 (2d Cir. 2010)

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09-4154-cr United States v. Mock 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Submitted: July 15, 2010 Decided: July 19, 2010) Docket No. 09-4154-cr U NITED S TATES OF A MERICA, Appellee, v. J OHN M OCK III, Defendant-Appellant, J ESSE J AMES B ELK, Defendant. Before: W ESLEY, H ALL, Circuit Judges, and G OLDBERG, Judge. * Appeal from the district court s denial of defendant s motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). A FFIRMED. * The Honorable Richard W. Goldberg, United States Court of International Trade, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 13 L AURIE S. H ERSHEY, Manhasset, NY, for DefendantAppellant. S ANDRA S. G LOVER, Assistant United States Attorney (William J. Nardini, Assistant United States Attorney, on the brief), for Nora R. Dannehy, United States Attorney, District of Connecticut, New Haven, CT, for Appellee. P ER C URIAM: Defendant-Appellant John Mock III appeals from the 14 district court s denial of his motion for a reduction in 15 sentence pursuant to 18 U.S.C. § 3582(c)(2), which he filed 16 based on the amendments to the U.S. Sentencing Guidelines 17 relating to the base offense levels for crack-related 18 offenses, see U.S.S.G., Supp. to App. C., Amend. 706 19 (effective Nov. 1, 2007); see also id. Amend. 713 (effective 20 Mar. 3, 2008) (collectively, the crack cocaine 21 amendments ). 22 Mock was originally sentenced as a career offender, see 23 U.S.S.G. § 4B1.1, he was ineligible for a sentence reduction 24 based on the crack cocaine amendments. 25 The district court reasoned that, because On appeal, Mock argues that the district court erred at 26 his original sentencing because it did not state in open 27 court the reasons for its application of the career offender 28 Guideline. See 18 U.S.C. § 3553(c). 2 Therefore, he argues, 1 the district court also erred in denying his motion for a 2 reduction in sentence by relying on its prior erroneous 3 application of U.S.S.G. § 4B1.1. 4 contentions, defendant seeks a remand for analysis of [his] 5 criminal history and compliance with 18 U.S.C. § 3553(c). Based on these 6 Defendant s arguments misapprehend the scope of a 7 district court s authority to reduce his sentence pursuant 8 to 18 U.S.C. § 3582(c)(2). 9 made clear in Dillon v. United States, No. 09-6338, --- S. As the Supreme Court recently 10 Ct. ---, 2010 WL 2400109 (U.S. June 17, 2010), this 11 provision authorizes a limited adjustment to an otherwise 12 final sentence and not a plenary resentencing proceeding. 13 Id. at *5. 14 Court is free to address, in a proceeding pursuant to 18 15 U.S.C. § 3582(c)(2), defendant s arguments regarding 16 procedural errors at his original, now-final sentencing. 17 Moreover, at least for purposes of a motion for a reduced 18 sentence, the record discloses that defendant was sentenced 19 as a career offender under U.S.S.G. § 4B1.1. 20 under settled case law in this Circuit, he is ineligible for 21 a reduction in sentence based on the crack cocaine 22 amendments. Therefore, neither the district court nor this Consequently, See United States v. Martinez, 572 F.3d 82, 3 1 885-86 (2d Cir. 2009) (per curiam). I. 2 3 Accordingly, we affirm. BACKGROUND In 1997, Mock pleaded guilty, pursuant to a plea 4 agreement, to one count of possessing five or more grams of 5 crack cocaine with intent to distribute, in violation of 21 6 U.S.C. § 841(a)(1). 7 government stipulated that: 8 offender under U.S.S.G. § 4B1.1(b); (2) based in part on 9 that classification, the applicable Guidelines range was 188 In the plea agreement, Mock and the (1) Mock was a career 10 to 235 months; and (3) they would jointly recommend to the 11 district court a 188-month term of imprisonment. 12 defendant s guilty plea, the U.S. Probation Department 13 completed a presentence report ( PSR ), which also concluded 14 that Mock was a career offender under U.S.S.G. § 4B1.1 and 15 concurred in the Guidelines calculation in the plea 16 agreement. 17 Following The district court conducted a sentencing proceeding in 18 January 1998. After statements by Mock s counsel, Mock, and 19 the government, the court declined to enter the 188-month 20 sentence urged by the parties. 21 in light of the magnitude of [Mock s] criminal conduct and 22 his very serious criminal record, a 212-month term of 4 Instead, it reasoned that, 1 imprisonment was appropriate. 2 its written statement of reasons, the district court 3 indicated that it had adopt[ed] the undisputed factual 4 statements contained in the PSR. 5 Following the sentencing, in Mock did not pursue a direct appeal of his conviction 6 or sentence. 7 amendments, Mock, acting pro se, filed a motion for a 8 reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). 9 The district court denied the motion on June 23, 2009, 10 reasoning that, [b]ecause defendant was sentenced as a 11 career offender and did not receive a downward departure, he 12 is ineligible in accordance with U.S.S.G. § 1B1.10, comment, 13 for a sentence reduction. 14 a notice of appeal on October 3, 2009. 1 15 motion for an appointment of counsel approximately one month 16 later. II. 17 18 However, following the crack cocaine Still acting pro se, Mock filed We granted his DISCUSSION We review for abuse of discretion a district court s 1 As defendant s appellate counsel acknowledges, the notice of appeal was untimely. However, the government has expressly waived any objection to this defect. In the absence of such an objection, and because the timeliness requirement is not jurisdictional, we proceed to the merits. See United States v. Frias, 521 F.3d 229, 233 (2d Cir. 2008). 5 1 denial of a motion pursuant to 18 U.S.C. § 3582(c)(2). 2 United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009). 3 Mock s principal appellate argument proceeds in two steps. 4 First, he argues that the district court erred at his 5 original sentencing by failing to state on the record the 6 fact findings supporting the application of the career 7 offender Guideline, U.S.S.G. § 4B1.1. 8 3553(c). 2 9 at his sentencing, the district court erred again when it 10 relied on Mock s career offender status to deny his motion 11 for a reduced sentence. 12 See See 18 U.S.C. § Second, Mock contends that, in light of the error These contentions do not afford a basis for the remand 13 Mock seeks. Mock s sentence became final long ago, and the 14 district court lacked authority under 18 U.S.C. § 3582(c)(2) 15 to address his arguments regarding procedural error at his 16 original sentencing. Moreover, because the district court 2 One of the requirements of § 3553(c), known as the open court requirement, requires that a district court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence. 18 U.S.C. § 3553(c); see also United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 2008) (per curiam) (holding that, even if a district court subsequently adopts the PSR s findings in its written statement of reasons, it violates the open court requirement by failing to verbally adopt the PSR s findings at the sentencing proceeding). 6 1 used the career offender Guideline, § 4B1.1, to calculate 2 Mock s base offense level, and not the Drug Quantity Table 3 in U.S.S.G. § 2D1.1(c), his motion for a reduced sentenced 4 was properly denied. 5 below, we affirm. 6 Accordingly, for the reasons set forth The U.S. Sentencing Commission is required to review 7 and revise the Guidelines and related policy statements 8 based on comments and data coming to its attention. 9 U.S.C. § 994(o); see also id. § 994(p). 28 If the Commission 10 revises a Guideline in a manner that reduces the term of 11 imprisonment recommended, it is also required to specify 12 in what circumstances and by what amount the sentences of 13 prisoners serving terms of imprisonment for the offense may 14 be reduced. 15 crack cocaine amendments pursuant to this statutory 16 authority. 17 Table in U.S.S.G. § 2D1.1(c), effective November 1, 2007, 18 to implement a two-level reduction of the base offense 19 levels for crack cocaine offenses. Id. § 994(u). 3 The Commission promulgated the Specifically, it modified the Drug Quantity 3 See U.S.S.G., Supp. to Congress imposed these obligations on the Commission in the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, and they survived Justice Breyer s remedial opinion in United States v. Booker, 543 U.S. 220, 244-268 (2005). See Dillon, 2010 WL 2400109, at *3. 7 1 App. C., Amend. 706. 2 Amendment 706 to have retroactive effect. 3 713. 4 In 2008, the Commission deemed See id. Amend. Relying on these amendments, defendant filed a motion 5 for a reduction in sentence. Section 3582(c)(2) 6 establishes an exception to the general rule of finality in 7 the case of a defendant who has been sentenced to a term of 8 imprisonment based on a sentencing range that has 9 subsequently been lowered by the Sentencing Commission. 10 Dillon, 2010 WL 2400109, at *5 (quoting 18 U.S.C. § 11 3582(c)(2)). 4 12 3582(c)(2) permits a limited adjustment to an otherwise 13 final sentence not a plenary resentencing proceeding 14 and set forth a two-step inquiry for resolving motions for 4 The Supreme Court recently explained that § Section 3582(c)(2) states, in pertinent part: [I]n the case 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 pursuant to 28 U.S.C. [§] 994(o), . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 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). 8 1 a reduction in sentence pursuant to this provision. 2 *5-6. 3 Id. at First, the defendant in question must be eligible for a 4 reduction in sentence. A defendant who was previously 5 sentenced based on a now-amended Guideline with retroactive 6 effect is only eligible for such relief if the reduction 7 would be consistent with applicable policy statements 8 issued by the Sentencing Commission namely, § 1B1.10. 9 Id. at *6 (quoting 18 U.S.C. § 3582(c)(2)). Section 1B1.10 10 lists the covered Guidelines amendments that may serve as 11 the basis for a reduction in sentence, including Amendment 12 706 (as amended), and establishes limitations and 13 prohibitions on the extent of any reduction. 14 1B1.10(b)-(c). 5 15 not consistent with [§ 1b1.10] and therefore is not 16 authorized under 18 U.S.C. § 3582(c)(2), U.S.S.G. § U.S.S.G. § If a defendant s term of imprisonment is 5 Specifically, § 1B1.10(b)(1) requires the court to begin by determin[ing] the amended guideline range that would have been applicable to the defendant had the relevant amendment been in effect at the time of the initial sentencing. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected. Dillon, 2010 WL 2400109, at *6 (quoting U.S.S.G. § 1B1.10). 9 1 1B1.10(a)(2), then the defendant is not eligible for a 2 reduction in sentence. 3 If, and only if, a defendant is eligible for a 4 reduction in sentence under 18 U.S.C. § 3582(c)(2) and 5 U.S.S.G. § 1B1.10, then the second step of the analytical 6 framework set forth in Dillon requires the district court 7 to consider any applicable § 3553(a) factors and determine 8 whether, in its discretion, the reduction authorized by 9 reference to the policies relevant at step one is warranted 10 in whole or in part under the particular circumstances of 11 the case. 12 1B1.10 remains in play at this step as well. 13 certain exceptions, the policy statement prohibits district 14 courts from reducing the defendant s sentence to a term 15 that is less than the minimum of the amended guideline 16 range. 17 2400109, at *7-8, the Supreme Court agreed with our view 18 that courts are bound by the language of this policy 19 statement because Congress has made it clear that a court 20 may reduce the terms of imprisonment under § 3582(c) only if 21 doing so is consistent with applicable policy statements 22 issued by the Sentencing Commission. Dillon, 2010 WL 2400109, at *7. U.S.S.G. § 1B1.10(b)(2)(A). 10 However, § Subject to In Dillon, 2010 WL United States v. 1 Williams, 551 F.3d 182, 186 (2d Cir. 2009) (quoting 18 2 U.S.C. § 3582(c)(2)). 3 Dillon therefore provides at least two lessons about 4 the nature of the proceedings authorized by 18 U.S.C. 5 § 3582(c)(2). 6 identified in United States v. Booker, 543 U.S. 220 (2005) 7 results from the restrictions on a district court s 8 sentencing discretion on a motion for a reduced sentence 9 under 18 U.S.C. § 3582(c)(2). First, no Sixth Amendment problem of the sort See Dillon, 2010 WL 2400109, 10 at *7-8. 11 sentencing or resentencing proceeding, id. at *5, a 12 defendant may not seek to attribute error to the original, 13 otherwise-final sentence in a motion under that provision. 14 Second, because § 3582(c)(2) does not authorize a This latter principle bears directly on defendant s 15 appeal. His 212-month sentence is final, subject only to 16 the limited exception created by 18 U.S.C. § 3582(c)(2). 17 The Dillon Court expressly rejected the argument that this 18 provision authorizes a full resentencing. 19 regardless of whether there is merit to defendant s argument 20 that the district court committed procedural error when it 21 applied the career offender Guideline at his original 22 sentencing, neither the district court nor this Court is 11 Therefore, 1 authorized to consider that contention in the context of a 2 motion pursuant to 18 U.S.C. § 3582(c)(2). 3 In light of that conclusion, the remainder of 4 defendant s appellate argument fails. Defendant was 5 sentenced under the career offender Guideline, U.S.S.G. 6 § 4B1.1, which was not affected by the crack cocaine 7 amendments that he relied upon as the basis for his motion. 8 Indeed, in his plea agreement, defendant stipulated to the 9 application of § 4B1.1. [A] defendant convicted of crack 10 cocaine offenses but sentenced as a career offender under 11 U.S.S.G. § 4B1.1 is not eligible to be resentenced under the 12 amendments to the crack cocaine guidelines. 13 F.3d at 85. 14 denying defendant s motion for a reduction in sentence. 16 Therefore, the district court did not err in III. 15 Martinez, 572 CONCLUSION We have considered each of defendant s arguments and 17 find them to be without merit. 18 foregoing reasons, the judgment of the district court is 19 AFFIRMED. 12 Accordingly, for the

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