UNITED STATES of America, Plaintiff-Appellee, v. Christopher L. GRANT, Defendant-Appellant.
No. 12-1339
United States Court of Appeals, Eighth Circuit.
January 15, 2013
703 F.3d 427
Submitted: Sept. 17, 2012.
We apply a presumption of reasonableness to sentences within the Guidelines range, “even if the sentence is derived from a guideline that was ‘the product of congressional direction rather than [an] empirical approach.‘” United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011) (alteration in original) (quoting United States v. Kiderlen, 569 F.3d 358, 369 (8th Cir. 2009)).
Here, the district court imposed a sentence that was within the Guidelines range and thus can be presumed reasonable. United States v. Wilder, 597 F.3d 936, 945 (8th Cir. 2010). As in Werlein, we reject appellant‘s argument challenging the validity of guidelines that are based on congressional mandates rather than empirical studies. See 664 F.3d at 1146. The court below explicitly considered the
Finally, Standafer‘s sentence does not reflect an unwarranted disparity in relation to one of his codefendants, whom he considered more culpable. The other defendant was not similarly situated. See
The district court properly calculated the Guidelines range, considered all relevant sentencing factors, and chose a sentence at the low end of the appropriate advisory Guidelines range. Standafer has not shown this sentence to be substantively unreasonable.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
Donald Lee Schense, Bellevue, NE, for Appellant.
Susan T. Lehr, USA, Omaha, NE, for Appellee.
Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
SMITH, Circuit Judge.
Christopher Grant was convicted of conspiracy to distribute and possess with intent to distribute crack cocaine. The district court sentenced him at the middle of the Sentencing Guidelines range. Subsequently, Grant moved for a sentence reduction pursuant to Amendment 706 of the crack-cocaine Guidelines. During an evidentiary hearing, the court stated that Grant should be sentenced at the bottom of the amended Guidelines range, and the court subsequently decreased his sentence to the bottom of the amended range. New amendments to the Guidelines qualified Grant for a further amendment of his sentence, which he requested. This time, however, the court sentenced him at the middle of the newly amended Guidelines range without explanation. Grant appeals his newly amended sentence, arguing that the district court abused its discretion. We vacate and remand for further proceedings.
I. Background
Christopher Grant was convicted of one count of conspiracy to distribute and possess with intent to distribute at least 30 but less than 50 grams of crack cocaine. On May 19, 2005, the district court sentenced Grant to 170 months’ imprisonment followed by five years of supervised release. This sentence fell in the middle of the Guidelines range of 151 to 188 months for Grant‘s offense.
In 2008, Grant moved for a sentence reduction pursuant to Amendment 706 of the crack-cocaine Guidelines and
I do appreciate the defendant‘s comments regarding his use of his time while incarcerated. And sometimes people do forget that when they go to prison, they‘re not simply losing years of their life, they do have an opportunity to work, to get an education, to participate in programming and to help other people while they‘re incarcerated.
And it appears to me the defendant has taken that message to heart. And I accept his statements as sincere statements that he is making the best use of his time while incarcerated, and that‘s important.
Frankly, I don‘t recall the original sentencing in this case. I don‘t recall why the mid range was chosen. Generally I do sentence at the low end of the guideline range. And I‘ve pulled up the original presentence investigation report and I‘ve looked through the report. And while the defendant‘s criminal history was not good, it wasn‘t violent. So I don‘t think that the defendant is someone who needs to be incarcerated for longer than the low end of a guideline range.
Having said that, and having considered all of the statutory factors that I‘m required to consider and that I‘m not going to repeat here for the record, I will grant the motions for reduction of sentence that appear at [docket filings] 100 and 109. And I will reduce the defendant‘s sentence to a term of 130 months’ incarceration.
(Emphasis added.) The court issued a one-page form order determining the new sentencing range and stating, “Except as provided above, all provisions of the judgment dated May 19, 2005, shall remain in effect.” The amended sentence was at the bottom of the amended Guidelines range of 130 to 162 months.
Subsequently, Congress passed the Fair Sentencing Act (FSA) of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (2010), which amended the crack-cocaine Guidelines yet again. Grant sent a letter to the court asking for a reduction under the FSA, and the court docketed the letter as a pro se motion. Under the FSA, the newly amended Guidelines range for Grant‘s offense became 110 to 137 months. Unlike with the first reduction of Grant‘s sentence, the district court conducted no evidentiary hearing. On January 12, 2012, the court issued an order determining the newly amended sentencing range and stating that the provisions of the May 19, 2005 judgment remained in effect. However, this time the court reduced Grant‘s sentence to 123 months, at the middle of the newly applicable Guidelines range. The order did not discuss any events transpiring subsequent to the 2009 evidentiary hearing that would justify a sentence at the middle (as opposed to the bottom) of the amended Guidelines range.
Grant appeals his sentence, arguing that the district court erred in placing his second amended sentence at the middle of the revised Guidelines range without explanation, rather than at the bottom.
II. Discussion
We review the extent of a sentence reduction under
In Burrell, the defendant pleaded guilty to conspiracy to possess with the intent to distribute cocaine base and powder cocaine. 622 F.3d at 962. The Guidelines range was 151 to 188 months, and the district court sentenced him to 168 months’ imprisonment, at the middle of the Guidelines range. Id. Three years later, Burrell requested a reduction in his sentence pursuant to
Applying Burrell, we vacate the judgment of the district court and remand because the district court provided no justification for its newly amended sentence, which places Grant in the middle of the amended Guidelines range. Grant‘s first amended sentence was at the bottom of the amended Guidelines range but his second amended sentence is at the middle of the newly applicable range. The new sentence might be appropriate but no reason for the discrepancy is obvious. On this record, we cannot merely presume that the district court‘s reasons for setting the first amended sentence at the bottom of the amended Guidelines range apply with equal force to the second amended sentence at the middle of the newly applicable Guidelines range. See Marion, 590 F.3d at 477-78.
The government observes that we frequently affirm cases where
III. Conclusion
The district court abused its discretion by failing to provide its rationale for sentencing Grant at the middle of the newly
RILEY, Chief Judge, dissenting.
The majority casts its decision as a straightforward application of this court‘s panel decision in United States v. Burrell, 622 F.3d 961 (8th Cir. 2010). It is not. I fear the majority pushes our court further down the path—begun by Burrell—toward formalism and needless complexity in the
I. BACKGROUND
To demonstrate that the record “‘show[s] how [the district court] exercised [its] discretion,‘” Burrell, 622 F.3d at 964 (quoting United States v. Marion, 590 F.3d 475, 478 (7th Cir. 2009)), I recite a few more facts than did the majority.
At Grant‘s sentencing on May 19, 2005, the district court adopted the facts set forth in the modified presentence investigation report as its factual findings. Those adopted facts indicated that Grant was a member of the 37th Street Crips gang, had a gang tattoo on each arm, and—by the age of 21—had amassed six juvenile adjudications and twenty-three adult criminal convictions. Grant‘s first arrest, for shoplifting, came at the age of eleven. When Grant was fifteen, Omaha police, conducting a traffic stop, found Grant in possession of a stolen semiautomatic pistol. He received his first jail sentence at the age of sixteen, and, at the age of eighteen, Grant was involved in a gang-related shooting, which left a rival gang-member dead. Grant did not fire a weapon, and he served just over a year in state prison for being an accessory to a felony. Before his imprisonment on that charge, Grant became involved in the conspiracy to distribute and possesses with intent to distribute crack cocaine—giving rise to this case, and he continued his involvement in the conspiracy after his parole from state prison. Grant‘s twenty-fifth arrest, which led to his conviction in this case, occurred fewer than three years after he left state prison.
After adopting the revised PSR‘s factual findings, the district court expressed its intention to sentence Grant in the middle of the United States Sentencing Guidelines (U.S.S.G. or guidelines) range. Rejecting Grant‘s argument that many of his criminal history points were for “traffic infractions and other violations of that nature,” the district court noted Grant “ha[d] steadily been involved in criminal conduct since an early age and also committed several offenses for which no criminal history points were assessed.” The district court did “not find that [Grant‘s] criminal history category [was] overstated.” Having “con-sider[ed] all of the [
At Grant‘s first sentencing modification, the district court exercised its discretion, under Application Note 1(B)(iii) of
I just want you to know that during my last sentencing ... you gave me the encouragement to better myself....
And those words have always stuck to me since I‘ve been incarcerated.... And I took advantage of the situation and looked at it in a positive light instead of looking at it in a negative way. That‘s one of the reasons why I let my actions speak louder than my words by presenting you with certificates that I have accomplished and by keeping my conduct clear since I‘ve been incarcerated.
(Emphasis added). At the time, Grant‘s prison record supported his claim that he was a model prisoner: Grant “ha[d] completed drug education classes and GED [sic], as well as various other education classes,” and he had no reported disciplinary infractions. It was in this light—not simply, as the majority seems to imply, based on the supposed non-violence of Grant‘s criminal history—that the district court concluded Grant was not “someone who needs to be incarcerated for longer than the low end of a guideline range.”
In 2012, when Grant returned to the district court seeking a second sentencing modification, Grant‘s prison record was no longer clear: “While in prison, [Grant] ha[d] been sanctioned for possessing an unauthorized item and refusing to obey an order.” Grant did not request an evidentiary hearing before the district court reduced his sentence to 123 months—as with Grant‘s initial sentence, at the center of the recalculated guidelines range of 110 to 137 months. Grant did not file a motion to reconsider after the district court issued the modification order.
II. DISCUSSION
I begin by explaining why, even under Burrell‘s approach to
A. No Abuse of Discretion Under Burrell
Unlike Burrell, this case involves a reduced sentence proportional to the original sentence. As the Supreme Court taught us in Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 2690, 177 L.Ed.2d 271 (2010), ”
The district court understood this important distinction. Its order reveals the district court correctly reduced the sentence, i.e., Grant‘s initial 170 month term of imprisonment. The district court‘s order listed Grant‘s “Previous Guideline Range” as “151 to 188 months,” his “Amended Range” as “110 to 137 months,” and reduced his “previously imposed sentence of imprisonment ... of 170 months ... to 123 months.”
The Burrell panel reasoned that the critical factor distinguishing its case from Clark was “missing” proportionality between “the initial sentence and the amended sentence.” Burrell, 622 F.3d at 965 (emphasis added). Now, the majority abandons this touchstone in favor of a new one—proportionality between one reduced “term of imprisonment,”
The majority imposes this requirement even here, where the rationale for the intervening disproportionality has disappeared: Grant‘s prison record, so positive at his first sentence modification, is now blemished with two disciplinary infractions, reflecting a renewal of his long criminal history. Neither Burrell nor
B. No Plain Error
Because a district court‘s “fail[ure] to adequately explain the chosen sentence” is a “procedural error,” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), it is “forfeited, and therefore may be reviewed only for plain error, if no objection was raised in the district court,” United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009). If not bound by Burrell, I would review Grant‘s claim only for plain error because he did not “raise[] [it] in the district court,” id. Whatever error the majority finds, it is certainly not “plain.”
The Burrell majority, fashioning a straw man argument from our reference in United States v. Statman, 604 F.3d 529 (8th Cir. 2010), to the defendant‘s failure to object at “the time of sentencing,” id. at 534 (emphasis added), proceeded to rebut this argument with the Supreme Court‘s admonition in Dillon that ”
To manufacture an exception to this principle, the Burrell majority again employed a straw man. Quoting
The district court had “jurisdiction to determine,” Yakus, 321 U.S. at 444, Grant‘s claim that the district court insufficiently explained the sentence reduction, and Grant “ha[d] an opportunity to object,”
The Burrell majority‘s holding to the contrary is particularly troubling because the Supreme Court has recognized in a similar context that a party‘s failure to file a motion to reconsider is prejudicial. See Woelke & Romero Framing, Inc. v. NLRB., 456 U.S. 645, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982). In Woelke, the Supreme Court considered whether an objection had “been urged before the [National Labor Relations] Board.” Id. at 665, 102 S.Ct. 2071 (quoting
As the history of Burrell itself shows, exempting defendants from this settled procedural requirement “impose[s] added and unnecessary burdens on [our] court,” Dieter, 429 U.S. at 8, 97 S.Ct. 18, without any corresponding benefit to defendants. First, rather than “giving district courts the opportunity promptly to correct their own alleged errors,” id., defendants pressing unmeritorious claims may burden our appellate docket with “Hail Mary” arguments that the district court explained too little in their case. After the Burrell panel remand, the district court in that case reimposed the same modified sentence, wrote eight pages of additional explanation, and almost two years to the day after our clerk docketed Burrell‘s original
Second, only those defendants with meritorious claims will seek to “cure[] [the error] ‘up front,’ [by filing] a motion to reconsider,” Burrell, 622 F.3d at 967 (Loken, J., dissenting), because to them the length of the appeals process may actually matter. For example, had Grant successfully moved the district court for reconsideration, he would have left prison months ago. Instead, American taxpayers have paid Grant‘s lawyer to file an appellate brief containing one page of argument, the U.S. Attorney‘s Office has expended its limited resources to file a ten-page brief, and we spend countless hours deciding this case. And for what? so this case can return to the district court for an additional explanation of what is already plain from “the entire sentencing record,” United States v. Guarino, 517 F.3d 1067, 1069 (8th Cir. 2008).
Sentencing modifications under