United States v. Craig Frazier
823 F.3d 1329
11th Cir.
2016
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UNITED STATES of America, Plaintiff-Appellee, v. Craig FRAZIER, Defendant-Appellant.

No. 15-14640

United States Court of Appeals, Eleventh Circuit.

May 24, 2016

1329

Non-Argument Calendar

The Supreme Court did not rely on such an argument; and I do not think we would say that a term has two different meanings just because its applicatiоn leads to different results in different jurisdictions. There would be nothing outrageous about more (and, perhaps, broader) state statutes “relating to” controlled substances (whatever the definition of the tеrm) than there are federal statutes relating to them.

I do recognize, however, that the Supreme Court in Mellouli relied on one feature of the removal statute that does not apply to the child-pornography enhancement. It noted “that Congrеss and the BIA [Board of Immigration Appeals] have long required a direct link between an alien‘s crime of conviction and a particular federally controlled drug.” . Perhaps this history was essential tо the Court‘s holding in that case. But I am inclined to doubt that. The Court‘s “stretches to the breaking point” language was independent of the statutory history, and the vigor of the Court‘s language suggests that it alone would be a sufficient ground for decision.

Moreover, there is a reason for a strict limitation to federally defined “child pornography” that does not apply to a federally defined “controlled substanсe.” Congress may have wished to be somewhat flexible with regard to state definitions of controlled substance because creative “chemists” continually come up with new dangerous drugs. The Mellouli dissent pointed out that under the majority‘s construction of the removal statute, “whenever a State moves first in subjecting some newly discovered drug to regulation, every alien convicted during the lag between state and federal regulation would be immunized from the immigration consequences of his conduct.” . Apparently, two of the nine drugs that were controlled substances under Kansas law but not under federal law at the time of Mellouli‘s arrest were included in the federal definition within a year of the arrest. In contrast, Congress would have had no doubt about alternative definitions of child pornography when it enacted its detailed definition. For whatever reason, it chose a more restrictive definition than the one enacted in Colorado.

Finally, I do not think that reversal in this case ‍​‌‌‌‌​‌​​​​‌‌‌​​​​​​​​​‌​‌‌​​‌​‌​​​‌‌‌‌​​​‌‌‌‌​​‍would create a split with deсisions after Mellouli by other circuits interpreting the enhancement provision at issue in this case. None of the four opinions cited by the majority opinion concerned state child-pornography stаtutes. All addressed whether state statutes related to “sexual abuse” or “abusive sexual conduct,” which are not terms defined by the federal statute.

This is not an easy case. But in my view, fidelity to the apprоach in Mellouli requires affirmance of the district court‘s decision not to impose the enhancement.

Laurence Michael Bardfeld, U.S. Attorney‘s Office, Fort Lauderdale, FL, Wifredo A. Ferrer, Andrea G. Hoffman, Nicole D. Mariani, Emily M. Smachetti, U.S. Attorney‘s Office, Miami, FL, for Plaintiff-Appellee.

Bernardo Lopez, Federal Public Defender‘s Office, Fort Lauderdale, FL, Michael Caruso, Federal Public Defender, Federal Public Defender‘s Office, Miami, FL, for Defendant-Appellant.

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

WILSON, Circuit Judge:

Craig Frazier appeals the district court‘s denial of his motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), based on Amendment 782 to the Sentencing Guidelines (Guidelines). On appeal, he argues that the district court abused its discretion in deciding against a sentence reduction after considering the factors in 18 U.S.C. § 3553(a), even though Frazier was eligible for a reduction based on the amendment. He also requests that we reassign the case ‍​‌‌‌‌​‌​​​​‌‌‌​​​​​​​​​‌​‌‌​​‌​‌​​​‌‌‌‌​​​‌‌‌‌​​‍to a different district court judge on remand. After review of the parties’ briefs and the record, we affirm.

I

This appeal concerns Frazier‘s third § 3582(c)(2) motion for sentence reduction and is his third sentencing appeal before this court. Since 2008, the Sentencing Commission has passed a number of retroactive amendments directed at reducing the disparity in sentencing between crack cocaine and powder cocaine. Such efforts culminated in Congress‘s passing of the Fair Sentencing Act in 2010, which prompted the Sentencing Commission to pass several sweeping amendments to reduce crack cocaine sentences. In 2008 and 2011, Frazier filed his first two § 3582(c)(2) motions under Amendments 706 and 750, respectively. On appeal of Frazier‘s second motion, this Court vacated the denial of a sentence reduction and remanded for the district court to detail its analysis of the § 3553(a) factors, since the court‘s denial provided only a conclusory statement that they had been considered. (per curiam). At a hearing on remand, the district court acknowledged that Frazier would have received a lower guideline range if he had been sentenced after Amendment 750, but cоncluded that Frazier‘s history and characteristics did not support a sentence reduction because he had not shown respect for the law. It denied his § 3582(c)(2) motion, and this Court affirmed on appeal. (per curiam).

Frazier now appeals the denial of his third § 3582(c)(2) motion, this time based on Amendment 782.1 In a short, one-page order, the district court concluded that “[a]lthough [Frazier] is eligible for a reduced sentence, his career offender status, post-sentence conduct in prison, additional state court conviction for murder, аnd his leadership role in a large-scale drug trafficking organization[] counsel against this Court exercising its discretion to reduce [Frazier‘s] sentence.”

II

We review the district court‘s decision of whether tо grant a sentence reduction under § 3582(c)(2) for an abuse of discretion. . “The district court abuses its discretion if it fails to apply the proper legal standard or to follow proper procedures in making its determination.” (internal quotation marks omitted).

A district court may modify a defendant‘s term of imprisonment if the defendant was sentenced ‍​‌‌‌‌​‌​​​​‌‌‌​​​​​​​​​‌​‌‌​​‌​‌​​​‌‌‌‌​​​‌‌‌‌​​‍based on a sentencing range that subsequently has been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). When the district court considers a § 3582(c)(2) motion, it must engage in a two-part analysis: (i) recalculate the defendant‘s guideline range under the amended guidelines, then (ii) “decide whether, in its discretion, it will elect to impose the newly calculated sentence under the amendеd guidelines or retain the original sentence.” . Any reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” See 18 U.S.C. § 3582(c)(2). The district court must consider the § 3553(a) factors and the nature and severity of the danger to any person or the community posed by a sentence reduction. . It also may consider the defendant‘s post-sentencing conduct. See U.S.S.G. § 1B1.10 cmt. 1(B)(iii).

Section 3553(a) sets forth the factors to be considered when impоsing a sentence, including: (1) “the nature and circumstances of the offense“; (2) “the history and characteristics of the defendant“; (3) “the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment“; (4) the need for “adequate deterrence“; (5) the need “to protect the public from further crimes“; (6) the guideline range; and (7) “any perti-nent policy statement ... issued by the Sentencing Commission.” 18 U.S.C. § 3553(a). A district court can demonstrate that it has considered the § 3553(a) factors by stating which pertinent factors weigh against granting a sentence reduction, even if it does not present particular findings for each individual factor. (per curiam) (affirming the denial of a sentence reduction where the district court mentioned the dеfendant‘s significant involvement in a large crack cocaine ‍​‌‌‌‌​‌​​​​‌‌‌​​​​​​​​​‌​‌‌​​‌​‌​​​‌‌‌‌​​​‌‌‌‌​​‍conspiracy and his lack of remorse or acceptance of responsibility). The district court has discretion to detеrmine how much weight to grant to a specific § 3553(a) factor. .

III

The district court did not abuse its discretion by denying Frazier‘s § 3582(c)(2) motion. It complied with the two-part procedure for analyzing Frazier‘s § 3582(c)(2) motion by determining that he was eligiblе for a sentence reduction, but the reduction was not warranted based on its analysis of the § 3553(a) factors. . In reaching such a conclusion, the district court referenced several facts relating to the § 3553(a) faсtors that weighed against a sentence reduction, including the severe nature of Frazier‘s offense and his history of violent crime. The court also asserted that Frazier‘s post-sentencing conduct, which included several disciplinary infractions, weighed against a sentence reduction. Such an analysis is all that is required to survive our level of scrutiny. (A court “commits no reversible error by failing to articulate specifically the applicability—if any—of each of the section 3553(a) factors, as long as the record demonstrates that the pertinent factors were taken into account by the district court.” (internal quotation marks omitted)).

The district court also did not abuse its discretion by failing to address explicitly the effect of the Fair Sentencing Act of 2010 or Frazier‘s positive efforts to improvе his character because the record shows that it otherwise considered the § 3553(a) factors. . Therefore, the district court did not abuse its discretion in declining to amend Frazier‘s sentence. .

IV

We have the supеrvisory authority to reassign a criminal case to a different ‍​‌‌‌‌​‌​​​​‌‌‌​​​​​​​​​‌​‌‌​​‌​‌​​​‌‌‌‌​​​‌‌‌‌​​‍district court judge, but reassignment “is an extraordinary order.” . “Where there is no indication of actual bias, we consider at least three faсtors to determine whether to reassign a case: (1) whether the original judge would have difficulty putting his previous views and findings aside; (2) whether assignment is appropriate to preserve the appeаrance of justice; (3) whether reassignment would entail waste and duplication out of proportion to gains realized from reassignment.” (internal quotation marks omitted).

We decline to reassign Frazier‘s case to a different district court judge because there is no need for a remand and “reassignment is unnecessary to preserve the appearance of justice and would require undue duplication of effort.” .

Accordingly, the denial of Frazier‘s § 3582(c)(2) motion is

AFFIRMED.

Notes

1
Though Amendment 782 reduces Frazier‘s offense level under U.S.S.G. § 2D1.1(c) to 33, Frazier acknowledges that his offense level actually would be 34 because of his career-offender status. Even so, he contends that Amendment 782 reduces his guideline range to 262 to 327 months’ imprisonment, which is lower than his current range.
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