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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