United States v. Evans

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 5, 2009

No. 08-41259

Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK ANTHONY EVANS,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, Chief Judge, SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mark Evans moved under 18 U.S.C. § 3582(c)(2) to reduce his sentence

based on the retroactive amendment of the crack cocaine offense levels. The dis-

trict court granted the motion but imposed a sentence at the high end of the new

sentencing range. On appeal, Evans argues (1) that the mandatory provisions

of United States Sentencing Guidelines (“U.S.S.G.”) section 1B1.10 cabined the

No. 08-41259

district court’s sentencing discretion in violation of United States v. Booker, 543

U.S. 220 (2005) and the separation of powers doctrine and (2) that the modified

sentence was procedurally unsound and substantively unreasonable. We affirm.

I.

Evans is no stranger to this court. In 2000, a jury found him guilty of pos-

session with intent to distribute crack cocaine (“count one”), possession of a fire-

arm during and in relation to a drug trafficking crime (“count two”), and being

a felon in possession of a firearm (“count three”). The district court sentenced

him to 235 months’ imprisonment. He appealed and, determining that the in-

dictment as to count two was defective, we affirmed in part and vacated and re-

manded in part for resentencing.

On remand, the district court sentenced Evans to 210 months on count one

and 120 months on count three, the terms to run concurrently, and dismissed

count two. Evans appealed; we affirmed. Evans sought 28 U.S.C. § 2255 relief;

we denied a certificate of appealability.

After the crack cocaine guideline was amended,1 Evans filed a § 3582(c)(2)2

motion for reduction of sentence. Based on the two-level reduction pursuant to

the crack cocaine amendment, on his post-conviction conduct, and on an alleged

error in calculating his original criminal history score, Evans urged the district

court to sentence him to 140 months or less, which he argued the court could do

1

The Sentencing Commission amended the guidelines applicable to cocaine base (i.e.,

crack cocaine) offenses by raising the quantity required to trigger each base offense level, effec-

tively lowering each respective sentencing range. See U.S.S.G. app. C, amend. 706 (Nov. 1,

2007). That amendment was then made retroactive by a subsequent amendment to the guide-

lines. See U.S.S.G. app. C, amend. 713 (Mar. 3, 2008).

2

“[I]f a defendant . . . has been sentenced to a term of imprisonment based on a sen-

tencing range that has subsequently been lowered by the Sentencing Commission . . . the court

may reduce the term of imprisonment . . . if such a reduction is consistent with applicable poli-

cy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) The policy state-

ment at issue is U.S.S.G. § 1B1.10(b)(2)(A).

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No. 08-41259

in light of Booker. Without a hearing, the court implicitly rejected Evans’s ar-

guments for a below-guideline sentence and summarily reduced the 210-month

sentence as to count one to 175 months.

II.

A.

Evans contends that to the extent the district court felt constrained in its

resentencing decision by the mandatory language in U.S.S.G. § 1B1.10, it erred.

Specifically, Evans argues that Booker applies to § 3582(c)(2) proceedings. And

because the provisions of U.S.S.G. § 1B1.10 are mandatory,3 Evans adds, they

violate Booker. We review de novo the district court’s interpretation or appli-

cation of the guidelines. See, e.g., United States v. Conner, 537 F.3d 480, 489

(5th Cir. 2008).

Evans’s argument is foreclosed by United States v. Doublin, 572 F.3d 235,

238 (2009) (per curiam), cert. denied, 2009 U.S. LEXIS 7830 (U.S. Nov, 2, 2009),

in which we joined “the nearly unanimous position of our sister circuits[4 ] in

holding [that] Booker does not alter the mandatory character of Guideline

§ 1B1.10’s limitations on sentence reductions.” Thus, a district court cannot re-

3

U.S.S.G. § 1B1.10(b)(2)(A), following its modification by amendment 711, states, in

relevant part, that “the court shall not reduce the defendant’s term of imprisonment under 18

U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the

amended guideline range . . . .”

4

See United States v. Fanfan, 558 F.3d 105 (1st Cir. 2009), cert. denied, 2009 U.S.

LEXIS 5275 (U.S. Oct. 5, 2009); United States v. Savoy, 567 F.3d 71 (2d Cir. 2009), cert. de-

nied, 2009 U.S. LEXIS 6600 (U.S. Oct. 5, 2009); United States v. Doe, 564 F.3d 305 (3d Cir.

2009); United States v. Dunphy, 551 F.3d 247 (4th Cir.), cert. denied, 129 S. Ct. 2401 (2009);

United States v. Cunningham, 554 F.3d 703 (7th Cir.), cert. denied, 129 S. Ct. 2826, and cert.

denied, 129 S. Ct. 2840 (2009); United States v. Starks, 551 F.3d 839 (8th Cir.), cert. denied,

129 S. Ct. 2746 (2009); United States v. Rhodes, 549 F.3d 833 (10th Cir. 2008), cert. denied,

2009 U.S. LEXIS 6441 (U.S. Oct. 5, 2009); United States v. Melvin, 556 F.3d 1190 (11th Cir.),

cert. denied, 129 S. Ct. 2382 (2009). But see United States v. Hicks, 472 F.3d 1167, 1169-72

(9th Cir. 2007).

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No. 08-41259

duce a sentence below the minimum provided in the amended guideline range.

Id.

B.

Evans challenges the mandatory provisions of § 1B1.10 on separation-of-

powers grounds. He claims that, notwithstanding the mandatory limitations in

§ 1B1.10, Congress never intended § 3582(c)(2) to limit a federal court’s jurisdic-

tion by delegating control to the Sentencing Commission. Indeed, he avers, a

plain reading of § 3582(c)(2) and its legislative history confirms that the Com-

mission’s policy statements were intended only to guide the district court’s dis-

cretion. Interpreting the statute otherwise, Evans argues, violates the separa-

tion-of-powers doctrine, because it gives Article III power to the Commission or,

at the very least, because the Sentencing Reform Act provides no guidance as to

how the Commission should regulate Article III jurisdiction.

Although Evans did not raise the separation-of-powers issue in the brief

supporting his § 3582(c)(2) motion, he contends that the plain error standard of

review does not apply, because he had no opportunity to object to the district

court’s summary ruling. For support, he cites United States v. Warden, 291 F.3d

363, 365 n.1 (5th Cir. 2002), in which we held the plain error standard inapplica-

ble because the defendant did not have an “opportunity to object to or comment

on the special [sentencing] conditions as imposed in the written order . . . .”

Evans’s situation, however, differs markedly from Warden’s. The chal-

lenge in Warden was to “new conditions [including responsibility to pay for costs

of drug treatment and counseling, sex offender counseling, and anger manage-

ment counseling] . . . not discussed at the sentencing hearing”SSconditions that,

because they were special, the defendant could not have been expected to antici-

pate. Id. at 365. In contrast, Evans challenges the constitutionality of the very

mandatory guidelines range that governs his § 3582(c)(2) resentencing.

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No. 08-41259

The mandatory nature of § 1B1.10 was an issue that Evans could have an-

ticipated. Indeed, he did anticipate it, in that he was careful to point out to the

district court his Booker argument. The point is that, unlike Warden, Evans had

an opportunity to comment on the issue he is trying to assert for the first time

on appeal. Evans could have mentioned separation of powers in his § 3582(c)(2)

motion brief but, for whatever reason, he chose not to. And because he did not

present it to the district court, we review it for plain error. See United States v.

Wright, 86 F.3d 64, 65 (5th Cir. 1996).

Plain error arises where “(1) there was an error; (2) the error was clear and

obvious; and (3) the error affected the defendant’s substantial rights.” United

States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). Even if such an error is

found, the court does not exercise its discretion to correct it unless it “seriously

affects the fairness, integrity, or public reputation of judicial proceedings,” id. at

359, and “result[s] in a miscarriage of justice,” United States v. Surasky, 974

F.2d 47, 50 (5th Cir. 1991).

As Evans admits, his separation-of-powers argument is novel. No Fifth

Circuit precedent supports it. “We ordinarily do not find plain error when we

‘have not previously addressed’ an issue.” United States v. Lomas, 304 F. App’x

300, 301 (5th Cir. 2008) (quoting United States v. Vega, 332 F.3d 849, 852 n.3

(5th Cir. 2003)). Even where the argument requires only extending authorita-

tive precedent, “the failure of the district court to do so cannot be plain error.”

Id. (citing United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998).

But here there was not even authoritative precedent for the court to ex-

tend. Given the lack of precedent suggesting a separation-of-powers problem

with § 3582(c)(2) and its relationship with the mandatory provisions in § 1B1.10,

the alleged error was not “obvious,” “clear,” or “readily apparent” such that the

court was “derelict in countenancing [it] . . . even absent the defendant’s timely

assistance in detecting [it].” United States v. Miller, 406 F.3d 323, 330 (5th Cir.

5

No. 08-41259

2005) (citations omitted).

III.

Evans argues that Booker reasonableness review should apply to § 3582-

(c)(2) proceedings; he attacks his resentencing as procedurally unsound and sub-

stantively unreasonable. In doing so, he assumes incorrectly that the reasona-

bleness standard of review applies to § 3582(c)(2) proceedings.

In Doublin, 572 F.3d 238, we held Booker inapplicable to § 3582(c)(2) sen-

tencing reductions, because those proceedings do not constitute full resentenc-

ings. We did not expressly address whether the reasonableness standard of re-

view derived from Booker is likewise inapplicable to § 3582(c)(2) proceedings.

Another court, however, has had occasion to state that logical connectionSSalbeit

in an unpublished opinion.5 We, likewise, now decide what was implicit in Doub-

lin, that is, the distinction between full sentencings and sentence modifications

that compelled our holding in Doublin: The Booker reasonableness standard

does not apply to § 3582(c)(2) proceedings. The bifurcated procedural-soundness,

substantive-reasonableness review of sentencing decisions derived from Booker

and its progeny, United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008), is

therefore inapplicable in the § 3582(c)(2) review context.

Instead, we review the decision whether to reduce a sentence under

§ 3582(c)(2) for abuse of discretion, United States v. Whitebird, 55 F.3d 1007,

1009 (5th Cir. 1995), its interpretation of the guidelines de novo, and its findings

of fact for clear error, United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th

Cir. 2008). Having discerned the correct standard of review, we now sever, as

5

See United States v. Brewster, No. 08-17124, 2009 U.S. App. LEXIS 12365, at *2-*3

(11th Cir. June 9, 2009) (per curiam) (unpublished) (“While we review the sentence initially

imposed by the district court for reasonableness . . . . reasonableness review does not apply in

the present context because a § 3582(c)(2) proceeding does not constitute a full resentencing

. . . .”), cert. denied, 2009 U.S. LEXIS 7276 (U.S. Oct. 13, 2009).

6

No. 08-41259

well as possible, Evans’s particular claims from his reliance on inapplicable

Booker-Rita 6 -Gall7 language.

A.

Evans takes issue with the district court’s summary grant of his § 3582-

(c)(2) motion without providing reasons for choosing the particular revised sen-

tence. He contends that, under § 3553(c)(1), the court is required to give reasons

for the sentence. Evans again confuses full sentencings with sentence modifica-

tions.

The provision in § 3553(c) on which Evans relies states in pertinent part

that “[t]he court, at the time of sentencing, shall state in open court the reasons

for its imposition of the particular sentence, and, if the sentence (1) is . . . within

[a] range . . . [that] exceeds 24 months, the reason for imposing a sentence at a

particular point within the range . . . .” 18 U.S.C. § 3553(c)(1). By its very

terms, this provision applies at the time of sentencing, not at the time of sen-

tence modification. “[T]here are clear and significant differences between orig-

inal sentencing proceedings and sentence modification proceedings.” Doublin,

572 F.3d at 238 (quoting Rhodes, 549 F.3d at 840). Indeed, one of the most im-

portant differences is that “the two types of proceedings are governed by differ-

ent statutes: original proceedings are governed by 18 U.S.C. § 3553 . . . while

sentence modification proceedings are governed by 18 U.S.C. § 3582(c)(2).”

Rhodes, 549 F.3d at 840. Given that § 3582(c)(2) does not constitute full resen-

tencing, see Doublin, 572 F.3d at 238, Evans’s reliance on § 3553(c) is misplaced.

6

Rita v. United States, 551 U.S. 338 (2007).

7

Gall v. United States, 552 U.S. 38 (2007).

7

No. 08-41259

B.

Evans contends that the district court erred because it failed to credit his

“incredible record of rehabilitation” since his prior sentencing and, instead, gave

significant weight to the characteristics of the “unreformed Mr. Evans of old who

existed years ago at the time of his offense.” His contention is unavailing.

Section 3582(c)(2) requires the court to consider the factors in § 3553(a).

But by its very terms, it does so with regard to whether the court should exercise

its discretion to grant the motion, not with regard to what the resulting modified

sentence should be within the recalculated range.8 Evans is, however, correct

that “the court shall consider the factors set forth in 18 U.S.C. § 3553(a) in de-

termining . . . whether a reduction . . . is warranted [and] . . . the extent of such

reduction . . . .” U.S.S.G § 1B1.10 cmt. n.1(B)(i).

Nevertheless, that the court did not mention the § 3553(a) factors when it

summarily reduced Evans’s sentence does not mean that it did not consider

them. After all, Evans, in his counseled § 3582(c)(2) motion brief, described in

detail why the § 3553(a) factors weighed in favor of a sentence at the bottom of,

or below, the sentencing range. The court had those arguments in front of it

when it made its determination where in the range Evans’s modified sentence

should fall. As put by another court confronted with nearly the same factsSSa

summary grant of a § 3582(c)(2) motion with a sentence at the high end of the

new guideline range granted summarily but with a motion from the defendant

discussing the § 3553(a) factors in his motion briefSS“[T]he court below was pre-

sented with argument concerning the § 3553(a) factors and although it did not

8

See 18 U.S.C. § 3582(c)(2) (“[U]pon motion of the defendant . . . or on its own motion,

the court may reduce the term of imprisonment, after considering the factors set forth in sec-

tion 3553(a) to the extent they are applicable . . . .”). Contrast this with 18 U.S.C. § 3582(a),

which concerns the initial imposition of a sentence: “The court, in determining whether to

impose a term of imprisonment, and . . . in determining the length of the term, shall consider

the factors set forth in section 3553(a) to the extent that they are applicable.”

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discuss them, we can assume that it considered them.” United States v. Clark,

No. 09-10487, 2009 WL 3004012, at *1 (11th Cir. Sept. 22, 2009) (per curiam).

Because the district court granted Evans’s § 3582(c)(2) motion and reduced

his sentence, it presumably concluded that the § 3553(a) factors weigh in his fa-

vor. The court, which was under no obligation to reduce Evans’s sentence at all,9

was under no obligation to reduce it even further within the recalculated range.10

Indeed, its decision implicitly to reject Evans’s call for a further reduction looks

all the more understandable in light of the particular details of the person Evans

refers to as the “Mr. Evans of old.”11

To the extent that Evans’s complaint is the fact that the district court

failed to provide reasons explaining the modified sentence, a court is “not re-

quired to state findings of facts and conclusions of law” when denying a § 3582-

(c)(2) motion. United States v. Cox, 317 F. App’x 401, 403 (5th Cir. 2009). If a

defendant cannot successfully challenge a district court for failing to provide rea-

sons for denying his motion to reduce his sentence, it is axiomatic that he cannot

9

See, e.g., Doublin, 572 F.3d at 238 (“[R]eductions under 18 U.S.C. § 3582(c)(2) are not

mandatory; this section merely gives the district court discretion to reduce a sentence under

limited circumstances.”); see generally 18 U.S.C. § 3582(c)(using such language as “may modi-

fy” and “may reduce”).

10

See U.S.S.G. § 1B1.10 cmt. n.1(B)(iii) (“The Court may consider post-sentencing con-

duct of the defendant that occurred after imposition of the original term of imprisonment in

determining . . . whether a reduction in the defendant’s term of imprisonment is warranted

[and] . . . the extent of such reduction . . . .”) (emphasis added).

11

As noted by the district court at the original sentencing hearing, these details include

“a long criminal history, which includes attempted murder, assault, deadly conduct, unlawful-

ly carrying a weapon and evading arrest”; “previous offenses includ[ing] incidents where he

has either discharged a firearm in the direction of an intended victim or pointed a firearm at

someone”; and the offenses for which he is serving time in prisonSS“drug trafficking[,] . . . be-

ing a felon in possession of a firearm, and possessing a firearm during and in relation to a drug

trafficking crime.” It was these details that caused the court to sentence Evans at the high

end of the then-applicable guideline range at his full resentencing following remand from this

court. And despite Evans’s considerable strides at reforming himself since then, the facts that

led to that original high-end sentence remain.

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No. 08-41259

do so for granting his motion but not providing a satisfactorily low enough sen-

tence within the recalculated range.12 Consequently, Evans has shown no abuse

of discretion.

C.

Evans raises the issue of a miscalculated criminal history score in his orig-

inal sentencing. “A § 3582(c)(2) motion is not the appropriate vehicle for raising

[issues related to the original sentencing].” United States v. Shaw, 30 F.3d 26,

29 (5th Cir. 1994). Those are arguments for direct appeal and are not cognizable

under § 3582(c)(2). Id.

The judgment is AFFIRMED.

12

See FED . R. CIV . P. 52(a)(3) (“The court is not required to state findings or conclusions

when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any

other motion.”).

10