The Tenth Circuit Court of Appeals issued its opinion in United States v. Washington on Friday, July 18, 2014.
Defendant Tony Washington was convicted of conspiracy to distribute crack and marijuana and conspiracy to maintain a residence for the distribution of drugs. The district court calculated his base offense level for sentencing purposes based on approximately 890 grams of cocaine base attributed to him. On direct appeal, Washington challenged the sentence, arguing that the district court incorrectly converted the approximately $2,6oo cash found on Washington to 85.05 grams of base cocaine and the estimation that he and his co-contributors purchased 680.4 grams of cocaine base with their pooled money. The Tenth Circuit declined to address the cash conversion issue, noting that only the pooled purchase could reduce his offense level. The Tenth Circuit found sufficient evidence for the pooled purchase and denied Washington’s appeal.
Washington then filed a pro se motion for sentence reduction in the district court based on § 3582(c)(2) and Amendment 750 of the Sentencing Guidelines. He did not challenge the correctness of his base offense level, but instead argued erroneously that Amendment 750 allowed the district court to reconsider its decision to give him a sentence above the bottom of the sentencing range. The district court denied his motion because Amendment 750 did not alter his base offense level and therefore the court was powerless to adjust his sentence. After being appointed counsel, Washington filed another motion for sentence reduction pursuant to § 3582(c)(2), setting forth the history and asking the court to deny his motion so he could appeal to the Tenth Circuit. The government filed a response in which it stated it had no opposition to Washington’s motion being denied. The court denied his motion as requested, and Washington timely appealed to the Tenth Circuit. The government filed a motion to dismiss his appeal, arguing the Tenth Circuit lacked appellate jurisdiction because Washington’s appeal did not fit within the four categories of allowed sentencing appeals under 18 U.S.C. § 3742(a).
The Tenth Circuit first noted that the government unwittingly implicated a circuit split regarding appellate jurisdiction to review sentencing errors. Although Sixth Circuit precedent dictates that § 3742(a) is the sole source of jurisdiction to review denial of a § 3582(c)(2) sentence modification, the Ninth and Tenth circuits have found jurisdiction under § 1291 as well. Following its own precedent, the Tenth Circuit determined it had jurisdiction to hear the appeal. However, it found that Washington’s appeal was in actuality a request for the Tenth Circuit to address the issue it declined under direct appeal, whether the district court erred by converting his cash to base cocaine. The Tenth Circuit discussed the limited and streamlined process for § 3582(c)(2) and decided that nothing in that process allowed it to address an issue unresolved on direct appeal. Because Washington’s appeal did not raise a legal question that could be resolved by reference to the previous Tenth Circuit order but rather sought a brand new direct appeal, the district court’s motion denying his sentence reduction was affirmed. The government’s motion to dismiss for lack of jurisdiction was denied.