August 18, 2018

Tenth Circuit: Retroactive Sentence Reduction Inappropriate for Successive Motion on Identical Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. Green on April 6, 2018.

Green appealed the district court’s decision to deny his second motion for reducing his sentence. Green’s appeal was based on his view that the district court abused its discretion in not considering all of the facts and circumstances of his case for reducing his sentence.

In 2011, Green was sentenced to 130 months’ imprisonment after pleading guilty to three counts of using a communication facility to facilitate the acquisition of cocaine powder in violation of 21 U.S.C. § 843(b). Green was initially indicted on seven counts of possession of cocaine powder and cocaine base with intent to distribute and three counts of using a communication facility to facilitate the acquisition of cocaine powder. He pleaded guilty for the three communication-facility counts, and the district court imposed 130 months’ imprisonment. One of the reasons for the higher sentence was the Defendant’s extensive criminal history spanning over 30 years and including a manslaughter conviction, convictions for distribution of cocaine base, violation of protective order, and distribution of crack cocaine.

Three years later, the base offense level for many drug offenses was reduced by two levels when the U.S. Sentencing Commission promulgated Amendment 782, which was retroactive.

Citing Amendment 782, Green then filed another motion to reduce his sentence under 18 U.S.C § 3582(c)(2), arguing he was eligible for a reduction based on the amendment and the progress he had made while in prison as shown by his transcript listing the courses he had completed. The district court denied the motion, and the Tenth Circuit affirmed the district court’s denial.

Fifteen months after the first appeal, Green filed another motion to reduce his sentence under § 3582(c)(2), again citing Amendment 782 and based on the courses he completed while in prison. With the exception of additional courses, the second appeal was the same as the first appeal. The district court denied this second motion, explaining that Amendment 782 did not mandate relief and that completion of courses did not make a reduction appropriate. Defendant appealed the denial, arguing the district court abused its discretion in not considering all the facts and circumstances of his case, including his clean disciplinary record while incarcerated.

When assessing whether the district court had jurisdiction to consider Defendant’s second motion to modify his sentence under Amendment 782, the Tenth Circuit determined whether 18 U.S.C. § 3582(c)(2) contained a jurisdictional bar to second motions based on the same guidelines amendment, and stated it was a question “of considerable practical importance for judges and litigants.” It noted that courts have an ongoing obligation to determine whether adjudicating a particular case is within their subject-matter jurisdiction, even if neither party argues the court lacks jurisdiction.

In consideration of the Supreme Court’s caution against reckless use of the term “jurisdictional,” the Tenth Circuit Court of Appeals relied on 18 U.S.C. § 3582 for guidance. The government contended § 3582(c)(2) only confers jurisdiction on district courts to consider one motion to modify a sentence under each amendment. Since Defendant had previously filed a motion to modify his sentence under Amendment 782, the government argued that the district court lacked jurisdiction to consider his second motion to modify his sentence under this same amendment.

Absent a clear statement from Congress that any potential bar on the number of motions a defendant may file per amendment is jurisdictional, the Court held § 3582(c)(2) did not divest a district court of jurisdiction to consider a second motion to modify a sentence under the same amendment. The government, however, did not advance any argument that § 3582(c)(2) imposes a non-jurisdictional bar, therefore, this issue was do not addressed.

The Tenth Circuit used a two-step inquiry to determine whether the defendant was eligible for a sentence reduction, and whether a sentence reduction was warranted in accordance with the 18 U.S.C. § 3553(a) factors. The parties did not dispute that Defendant was eligible for a reduced sentence under § 3582(c)(2). Defendant only argued the district court erred in the second step of the § 3582(c)(2) inquiry by holding that a reduced sentence was not warranted upon consideration of the § 3553(a) factors, more specifically that the district court did not consider the courses he completed while he was in prison.

The Tenth Circuit found the district court’s considerations of these factors as “unquestionably appropriate.” The district court then determined that Defendant’s coursework while in prison and certificates of completed coursework did not overcome these considerations. The Tenth Circuit concluded that this determination was well within the district court’s discretion.

Additionally, Defendant argued in his initial pro se brief that the district court did not consider his clean disciplinary record while in prison. The disciplinary record was not presented to the district court, so the Tenth Circuit did not consider Defendant’s clean disciplinary record.

Defendant argued that the Circuit should have remanded to the district court so that the district court may consider the Defendant’s disciplinary record while in prison. In general, a remand for a party to produce additional evidence is inappropriate where the party had full opportunity to present the evidence in the first instance.

The Tenth Circuit affirmed the district court’s order.

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