United States v. BowersUnited States v. Bowers
OPINION
Although it has been over five years since the Supreme Court’s thoroughgoing reform of federal sentencing law in
United States v. Booker,
I
In March 2000, a federal grand jury indicted Anthony Bowers on one count of conspiracy to possess, with intent to distribute, five kilograms or more of powder cocaine and fifty grams or more of crack cocaine, in violation of
In January 2008, the government filed a motion pursuant to
On May 5 and 6, 2008, the district court conducted a combined hearing on the two motions. During this hearing, the court heard testimony from one of Bowers’s fellow inmates that, several months earlier, Bowers and two other inmates had violent
The government, taking the position that Bowers’s alleged participation in the assault demonstrated his “dangerousness to the public,” suggested at most a “de minimis ” sentence reduction of one year (i.e., a total sentence of 250 months). Bowers argued that his sentence should be reduced to time served (at that point, approximately 90 months), or, at most, to the 120 months he was originally to serve under the breached plea agreement.
From the bench, the district court found the government’s witnesses credible and Bowers not credible. The court then opined that, based on the totality of the circumstances, a “reduced sentence wouldn’t be sufficient based on the negative [personal] characteristics of Mr. Bowers and the actions he took toward [the victim] ..., the need to deter criminal conduct in prison, and the need to protect the public from further crimes.” Consequently, the district court refused to award any additional sentence reduction pursuant to either
II
We begin — and also end — by examining whether we have jurisdiction to consider Bowers’s appeal at all. The government argues that, under this circuit’s precedents, we lack jurisdiction to hear Bowers’s appeal of the district court’s
A. Which Statute Controls the Jurisdictional Analysis?
1. Potential Sources of Jurisdiction
Criminal defendants enjoy no constitutional right to appeal their convictions; accordingly, “in order to ... appeal one must come within the terms of [some] applicable statute____”
Abney v. United States, 431
U.S. 651, 656,
(1) was imposed in violation of law; [or]
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
Because Congress enacted the Sentencing Reform Act with the intent to establish “a limited practice of appellate review of sentences in the Federal criminal justice system,” S.Rep. No. 225, 98th Cong., 2d Sess. 149 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3332, the federal courts are in agreement that
Here, however, Bowers does not appeal the result of an initial, plenary sentencing proceeding. Rather, he appeals the district court’s refusal to reduce a previously imposed sentence. Which jurisdictional provision controls, then, depends on whether Bowers’s appeal is properly viewed as an appeal of the district court’s
determination of the sentence-reduction motions
or as an appeal of the
sentence that resulted from those motions.
Because our jurisdiction to hear appeals of “sentences” under
2.
Although both interpretations of the nature of Bowers’s appeal are possible in theory, the question is settled in this circuit with respect to the
[ Defendant’s] original sentence was 233 months. After the district court’s order granting a departure, his sentence was 221 months. By any definition, the court’s order imposed a new sentence, and [defendant’s] appeal of that order is an appeal from an “otherwise final sentence” ....
Id.
at 793 (quoting
United States v. McDowell,
With one exception, every other circuit to address the question is in accord with our holding in
Moran. See United States v. McKnight,
3. Section 3582(c)(2) Appeals
In contrast with this wealth of cases analyzing appellate jurisdiction over
In our own circuit, although we hear such appeals on a regular basis, it has generally not been our practice to specify the statutory provision under which we take jurisdiction; ordinarily, we simply state that district-court determinations in § 3582(c)(2) proceedings are “reviewed for abuse of discretion” and proceed to the merits of the appeal.
See, e.g., United States v. Bridgewater,
Examples to the contrary are few and far between. In a single published opinion, we stated in passing: “This is an appeal from the judgment of the District Court after denial of a motion filed pursuant to
On the other hand, in one unpublished decision involving a
None of our prior cases dictates the result here.
Cerna, Williams,
and
Coffee
are unpublished and therefore not binding. And
Carter,
although published, merely noted that the appellant had “invoked” § 1291 and proceeded immediately to the merits. In none of these cases does it appear that the jurisdictional issue was in question. As the Supreme Court has stated, “when questions of jurisdiction have been passed on in prior decisions sub silentio, [we are not] bound when a subsequent case finally brings the jurisdictional issue
Taking a fresh look at the question, we believe that our jurisdiction to consider the appeal of a § 3582(c)(2) determination, like our jurisdiction to consider the appeal of a
4. Does Dillon Affect This Analysis?
Before we move on, we briefly address the Supreme Court’s recent statement in
Dillon v. United States
that, “[f]ollowing [the] two-step approach [required by § 3582(c)(2) ], a district court proceeding under § 3582(c)(2) does not impose a new sentence in the usual sense.”
In our opinion, however, the key parts of this quotation are its
beginning
— “[j]allow
ing this two-step approach
” — and its
end
— “in
the usual sense.”
As we will discuss further below, the central theme of
Dillon
is that a § 3582(c)(2) proceeding is
procedurally
unlike a plenary resentencing.
See ibid,
(noting the “narrow scope” of § 3582(c)(2) proceedings);
id.
at 2692 (referring to a § 3582(c)(2) proceeding as a “circumscribed inquiry”). The Court observed that in such a proceeding, unlike in a plenary sentencing proceeding, a district court may not weigh the general sentencing considerations set forth in
We read the
Dillon
Court’s comment that a district court “[fjollowing this two-step approach ... does not impose a new sentence in the usual sense” merely as highlighting this procedural dissimilarity, rather than as suggesting that
the end result
of a sentence-reduction proceeding is not a “sentence” within the meaning of § 3742.
5
Indeed, because
Dillon
empha
B. Is Bowers’s Appeal Within the Scope of § 3742?
Having determined that jurisdiction to hear Bowers’s appeal must arise under § 3742 if it exists at all, we now consider whether the arguments that he asserts fall within the scope of that section. In his appeal, Bowers raises two principal objections to the district court’s decision. First, he argues that the district court erred in its factual finding that he was involved in the alleged assault. Second, he argues that, for various policy-oriented reasons, the denial of a sentence reduction was “unreasonable” and the re-imposed sentence “is substantially longer than a sentence that would be sufficient, but not greater than necessary, to comply with” the
As we have already noted, § 3742(a) authorizes us to review the outcome of a sentence-reduction proceeding only where the resulting sentence “(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is greater than the sentence specified in the applicable guideline range; or (4) was imposed for an offense for which there is no guideline and is plainly unreasonable.”
Moran,
1. Pre-Booker Case Law
It is beyond dispute that, pr
e-Booker,
the objections that Bowers raises would not have qualified as cognizable “violation[s] of law.” In the pr
e-Booker
era, an allegation that the district court had denied a
discretionary
sentence adjustment “based on clearly erroneous findings of fact” did not assert a “violation of law” within the meaning of § 3742(a).
United States v. Clark,
2. Booker, Gall, and the Advent of Unreasonableness Review
When the Supreme Court decided
Booker
in 2005, it effected a far-reaching change in federal sentencing law. In Justice Stevens’s lead opinion, the Court held that mandatory application of the Guidelines violated the Sixth Amendment by subjecting defendants to increased sentences based on facts not found by a jury.
Subsequently, in
Gall v. United States,
Of course, these are the very complaints that Bowers raises with the sentence-reduction proceedings below. Accordingly, our jurisdiction over Bowers’s appeal turns on whether, after
Booker
and
Gall,
allegations of procedural or substantive unreasonableness in the context of a
3. Impact of Booker and Gall on the Appeal of Sentence Reduction Proceedings
At first blush, one might be inclined to conclude that the answer to this question is yes. Although the
Booker
and
Gall
Courts did not address the statutory source of the appellate courts’ newly acquired jurisdiction to review sentences for unreasonableness, practically every circuit quickly concluded that
Under Booker, an appellate court must review all sentences for “reasonableness” .... [W]e fail to see how Trejo’s challenge — namely, that the sentence imposed was “unreasonable” — does not implicate§ 3742(a)(1) . The standard set forth in the law of sentencing review, as established by the Supreme Court, is one of reasonableness, and any sentence that is deemed unreasonable must necessarily be one imposed “in violation of law.”
United States v. Trejo-Martinez,
However, we subsequently reached the opposite result in the context of an appeal from a
Our sister circuits reached conclusions similar to ours in
Parker,
holding that allegations of unreasonableness do not confer appellate jurisdiction over
In our opinion, the Supreme Court’s recent decision in
Dillon v. United States,
to which we have already adverted, makes clear that, regardless of their reasoning, these cases reached the correct outcome. In
Dillon,
the defendant had been convicted of a crack-cocaine offense. Following an unsuccessful appeal of his initial sentence, he had moved for a sentence reduction pursuant to § 3582(c)(2) based on the same retroactive Guidelines amendment that authorized Bowers’s § 3582(c)(2) motion in this case.
Before the Supreme Court, Dillon argued that Bookers excision of the portion of the Sentencing Reform Act making the Guidelines mandatory authorized the district court to ignore U.S.S.G. § 1B1.10 and impose a sentence lower than the amended Guidelines minimum. Id. at 2690. The Court disagreed. In relevant part, it reasoned:
Given the limited scope and purpose of § 3582(c)(2), we conclude that proceedings under that section do not implicate the interests identified in Booker. Notably, the sentence-modification proceedings authorized by § 3582(c)(2) are not constitutionally compelled. We are aware of no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent Guidelines amendments. Rather, § 3582(c)(2) represents a congressional act of lenity.... Viewed that way, proceedings under § 3582(c)(2) do not implicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt. Taking the original sentence as given, any facts found by a judge at a § 3582(c)(2) proceeding do not serve to increase the prescribed range of punishment; instead, they affect only the judge’s exercise of discretion within that range. “[Jjudges in this country have long exercised discretion of this nature in imposing sentence within [established] limits in the individual case,” and the exercise of such discretion does not contravene the Sixth Amendment even if it is informed by judge-found facts. Apprendi v. New Jersey,530 U.S. 466 , 481,120 S.Ct. 2348 ,147 L.Ed.2d 435 (2000) (emphasis in original). Because § 3582(c)(2) proceedings give judges no more than this circumscribed discretion, “[tjhere is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused.” Oregon v. Ice, 555 U.S. —, —,129 S.Ct. 711 , 713,172 L.Ed.2d 517 (2009).
Id. at 2692 (alterations in original). Having held that sentence-reduction proceedings under § 3582(c)(2) do not implicate the Sixth Amendment concerns addressed in Booker, the Court concluded that “the remedial aspect of the [Booker ] Court’s decision [does not] appl[y] to proceedings under that section____” Id. at 2693. Accordingly, the Court held that the district court had not erred in considering itself bound by the floor set by U.S.S.G. § 1B1.10. 12
Dillon’s holding that the Booker remedial opinion has no force in § 3582(c)(2) proceedings directly compels the conclusion that Booker’s other specific “remedial amendment ] to the Sentencing Reform Act” — its promulgation of unreasonableness review in lieu of the Act’s more circumscribed standard — does not “appl[y] to proceedings under that section” either. Accordingly, a defendant’s allegation of Booker unreasonableness in a § 3582(c)(2) proceeding does not state a cognizable “violation of law” that § 3742(a)(1) would authorize us to address on appeal.
III
Because Bowers has not asserted a “violation of law” with respect to his sentence that we are empowered to address, this appeal is DISMISSED for want of jurisdiction.
Notes
. Whether to reduce a sentence pursuant to a
. Section 3582(c)(2) provides:
[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), upon
motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in [18 U.S.C. § ] 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
A district court “has the discretion to deny a section 3582(c)(2) motion, even if the retroactive amendment has lowered the guideline range.”
United States v. Ursery,
. Subsection (b) of § 3742, meanwhile, specifies when we may hear the government’s appeal of a sentence. This case does not present the question of when the government may appeal a district court’s determination of a sentence reduction motion.
. One might question whether this reasoning applies to a district court’s decision to
deny
a
ed). Presumably, the
Moran
panel reasoned that the outright denial of a
Our subsequent
Lastly, we note that our sister circuits have stated quite explicitly that
. In fact, elsewhere in its opinion, the
Dillon
Court used language suggesting that the end result of a § 3582(c)(2) proceeding is the imposition of a sentence, notwithstanding the
. For example, Bowers argues that the district court failed to consider the disparity between Bowers’s sentence and those of his co-conspirators and the unjustifiable harshness with which the Guidelines continue to treat crack-cocaine offenses, even after the 2007 amendment.
. In fact, Bowers's sentence is already below the applicable Guidelines range.
. We note that, technically speaking, these cases involved denials of downward departures
upon initial sentencing,
rather than denials of sentence reductions at a later date. However, both types of sentence adjustments are discretionary, and we find the timing difference irrelevant to the proper allegation of a "violation of law.”
See Moran,
. By contrast, we held in
Moran
that a defendant properly alleges that his sentence was imposed "in violation of law” where he argues that the district court erroneously believed "that it lacked discretion, as a matter of law, to depart downward.”
. The Sentencing Reform Act's standard-of-review provision, § 3742(e), was in pari materia with § 3742(a), the jurisdictional provision we have already discussed. It stated:
Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
(3) is outside the applicable guideline range, and [the departure was improper for specified reasons]; or
(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.
. It appears that the sole authority to the contrary is a footnote of this circuit’s since-vacated panel opinion in United States v. Grant, which stated:
[W]e [do not] lack jurisdiction to review sentences imposed pursuant to aRule 35(b) motion. To be lawful, a sentence must be reasonable. Thus, if an appellant contends that his sentence imposed after aRule 35(b) motion is unreasonable, we would have jurisdiction to review it under § 3742(a)(1), since it would be an argument that the sentence was imposed in violation of law.
. This court reached a similar conclusion last year in
United States v. Washington,
. Our conclusion with respect to
. Of course, notwithstanding our decision today, defendants may continue to appeal district-court determinations in sentence-reduction proceedings to the extent they allege "violation[s] of law" not premised on
Booker
and its progeny.
See Parker,