Filed: Jun. 02, 2016
Latest Update: Mar. 02, 2020
Summary: No. 15-1829 United States of America v. Derry In the United States Court of Appeals For the Second Circuit _ August Term, 2015 No. 15-1829 UNITED STATES OF AMERICA, Appellee, v. LEROY DERRY, Defendant-Appellant.1 _ Appeal from the United States District Court for the District of Connecticut. No. 97 Crim. 48 (MPS) Michael P. Shea, Judge. _ Argued: April 6, 2016 Decided: June 1, 2016 Amended: June 2, 2016 _ Before: POOLER, PARKER, and LIVINGSTON, Circuit Judges. _ 1 The Clerk of Court is directe
Summary: No. 15-1829 United States of America v. Derry In the United States Court of Appeals For the Second Circuit _ August Term, 2015 No. 15-1829 UNITED STATES OF AMERICA, Appellee, v. LEROY DERRY, Defendant-Appellant.1 _ Appeal from the United States District Court for the District of Connecticut. No. 97 Crim. 48 (MPS) Michael P. Shea, Judge. _ Argued: April 6, 2016 Decided: June 1, 2016 Amended: June 2, 2016 _ Before: POOLER, PARKER, and LIVINGSTON, Circuit Judges. _ 1 The Clerk of Court is directed..
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No. 15‐1829
United States of America v. Derry
In the
United States Court of Appeals
For the Second Circuit
________
August Term, 2015
No. 15‐1829
UNITED STATES OF AMERICA,
Appellee,
v.
LEROY DERRY,
Defendant‐Appellant.1
________
Appeal from the United States District Court
for the District of Connecticut.
No. 97 Crim. 48 (MPS) ― Michael P. Shea, Judge.
________
Argued: April 6, 2016
Decided: June 1, 2016
Amended: June 2, 2016
________
Before: POOLER, PARKER, and LIVINGSTON, Circuit Judges.
________
1
The Clerk of Court is directed to amend the caption as set forth above.
No. 15‐1829
Appeal from an order of the United States District Court for
the District of Connecticut (Shea, J.) denying Leroy Derry’s motion
for a sentence modification pursuant to 18 U.S.C. § 3582(c)(2). Derry
received a sentence modification in 2011 based upon Amendment
750 to the Sentencing Guidelines and sought a second modification
in 2015 based upon Amendment 782. The district court concluded
that he was ineligible because Amendment 782 had not reduced his
guideline range below that applied at his prior sentence
modification. Derry contends that he is eligible because his
amended guideline range is lower than the range applied at his
original sentencing. We hold that when a defendant is serving a
term of imprisonment that has been modified pursuant to
§ 3582(c)(2), his sentence is “based on” the guideline range applied
at his most recent sentence modification, rather than the range
applied at his original sentencing. Because Derry’s sentence is
“based on” a guideline range that has not been lowered by
Amendment 782, he is ineligible for a sentence modification. The
judgment of the district court is accordingly AFFIRMED.
________
DAVID S. KEENAN, Assistant Federal Defender, for
Terence S. Ward, Federal Public Defender for the
District of Connecticut, New Haven, Connecticut,
for Defendant‐Appellant.
AVI PERRY, Assistant United States Attorney
(Michael E. Runowicz & Marc H. Silverman,
Assistant United States Attorneys, on the brief), for
Deirdre M. Daly, United States Attorney for the
District of Connecticut, for Appellee.
________
2
No. 15‐1829
BARRINGTON D. PARKER, Circuit Judge:
A federal sentence ordinarily may not be modified once it has
been imposed. 18 U.S.C. § 3582(b). An exception to this rule of
finality arises when a defendant has been sentenced to a term of
imprisonment “based on” a sentencing range that has “subsequently
been lowered by” a retroactive amendment to the United States
Sentencing Guidelines, id. § 3582(c)(2), and the “guideline range
applicable to the defendant” has been “lowered as a result,”
U.S.S.G. § 1B1.10(a)(1). Under those circumstances, a district court
may modify the term of imprisonment based upon the amended
guideline range. U.S.S.G. § 1B1.10(b)(1).
This appeal calls on us to determine whether a defendant who
has received a sentence modification is eligible for a further
modification when, as a result of a subsequent Guidelines
amendment, his revised guideline range is lower than that applied at
his original sentencing but not lower than the range applied at his
prior sentence modification. Leroy Derry was originally sentenced
in 2009 to a term of 396 months’ imprisonment based on a guideline
range of 360 months to life. In 2011, he received a sentence
modification based upon Amendment 750, which lowered the base
offense level for his crack cocaine convictions and thereby reduced
his guideline range to 235 to 293 months. In 2015, he sought a
second modification based on Amendment 782, which again
lowered the base offense level but, because of the Guidelines’
grouping procedures, yielded the same guideline range as before.
The United States District Court for the District of Connecticut (Shea,
J.) concluded that Derry was ineligible for a second sentence
modification because Amendment 782 did not further reduce his
guideline range below that applied at his prior modification. Derry
contends that he is eligible because his amended guideline range is
lower than the range applied at his original sentencing.
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No. 15‐1829
We hold that when a defendant is serving a term of
imprisonment that has been modified pursuant to § 3582(c)(2), his
sentence is “based on” the guideline range applied at his most recent
sentence modification, rather than the range applied at his original
sentencing. Because Derry’s sentence is “based on” a guideline
range of 235 to 293 months and that range has not subsequently been
lowered by Amendment 782, he is ineligible for a sentence
modification. The judgment of the district court is accordingly
affirmed.
BACKGROUND
Derry is a former member of the Latin Kings street gang who
was involved in the group’s Connecticut chapter in the mid‐ to late‐
1990s. In 1998, a jury convicted him of multiple counts of conspiracy
and possession with intent to distribute heroin or cocaine base, 21
U.S.C. §§ 841, 846, racketeering and racketeering conspiracy, 18
U.S.C. § 1962, attempted murder, and conspiracy to murder, 18
U.S.C. § 1959.
Prior to sentencing, the United States Probation Department
prepared a Presentence Report (“PSR”) that sorted Derry’s
convictions into three groups pursuant to the Guidelines’ grouping
provisions. See U.S.S.G. §§ 3D1.1–3D1.5. Group One included his
convictions for racketeering and drug trafficking. Based on 104.2
grams of cocaine base, Probation calculated a base offense level of 32
under the crack cocaine guideline, § 2D1.1, and then added six levels
for Derry’s possession of a firearm and leadership role in the
organization, §§ 2D1.1(b)(1), 3B1.1(a), yielding an adjusted offense
level of 38. For Groups Two and Three, which included Derry’s
convictions for attempted murder and conspiracy to murder,
Probation calculated adjusted offense levels of 32. Applying § 3D1.4,
Probation then assigned one unit to Group One and one‐half unit
each to Groups Two and Three, added the two units to the highest
adjusted offense level of 38, and calculated a total offense level of 40.
4
No. 15‐1829
Because Derry’s Criminal History level was Category IV, his
corresponding guideline range was 360 months to life
imprisonment. The district court (Nevas, J.) adopted the PSR’s
findings and calculations and sentenced Derry principally to a term
of 396 months.
In 2011, the United States Sentencing Commission
promulgated Amendments 750 and 759, which retroactively revised
§ 2D1.1 to reduce the base offense level for crack cocaine offenses.
U.S.S.G. App’x C, Vol. III, Amends. 750, 759. In an addendum to the
PSR, Probation concluded that Derry was eligible for a sentence
modification because the amendments had reduced the base offense
level for Group One to 26, resulting in an adjusted offense level of
32. As Groups One, Two, and Three now all had the same offense
level, Probation assigned each group one unit per § 3D1.4, and,
using the highest adjusted offense level of 32 as the starting point,
calculated a revised total offense level of 35 and a revised guideline
range of 235 to 293 months. The district court (Burns, J.) then sua
sponte reduced Derry’s sentence to 293 months. Derry did not seek
reconsideration or appellate review of that decision.2
In April 2015, Derry moved for a further sentence
modification based on Amendments 782 and 788, which
2
The parties offer conflicting accounts as to whether Derry received notice of the PSR
addendum or was aware that the district court was considering modifying his sentence
sua sponte. It is unclear whether Derry was entitled to notice that the court was
considering modifying his sentence. See United States v. Deglace, 309 F. App’x 288, 290
(11th Cir. 2008) (observing that § 3582(c)(2) does not provide a defendant with a right to
notice of a potential modification); United States v. Johnson, 703 F.3d 464, 469–71 (8th Cir.
2013) (concluding that § 3582(c)(2) does not implicate a constitutionally protected
liberty interest). But even if he was, his recourse was to seek reconsideration or
appellate review of that order, and the time to challenge the 2011 modification on direct
appeal has long since passed. Whatever complaints Derry may have regarding his
prior modification, we are bound by § 3582(c)(2) and may grant him relief only if he
meets the statute’s eligibility requirements with respect to Amendment 782. We
express no opinion on the viability of other potential avenues of relief with respect to
the 2011 modification.
5
No. 15‐1829
retroactively reduced the base offense levels for all drug offenses by
two. U.S.S.G. Supp. to App’x C, Amends. 782, 788. Probation
submitted another addendum to the PSR, but this time concluded
that Derry was ineligible. It reasoned that although the adjusted
offense level for Group One had been reduced to 30, the highest
adjusted offense level of 32 continued to serve as the starting point
and each group continued to receive one unit, leaving Derry’s total
offense level at 35 and his guideline range the same as before. On
May 27, 2015, the district court (Shea, J.) held that Derry was
ineligible for a modification because the “guideline range
applicable” to him had not been “lowered as a result of”
Amendment 782. United States v. Derry, No. 97‐cr‐48, 2015 WL
3407924, at *2–3 (D. Conn.). Derry timely appealed. We review the
district court’s interpretation of statutes and the Guidelines de novo.
United States v. Savoy, 567 F.3d 71, 72 (2d Cir. 2009) (per curiam).
DISCUSSION
I.
Because a sentence incorporated in a judgment of conviction is
final, courts are generally precluded from modifying a sentence once
it has been imposed. 18 U.S.C. § 3582(b), (c). Congress has,
however, recognized an exception when the Sentencing Commission
has issued a retroactive amendment, such as the amendments
reducing the crack cocaine guidelines, that would have reduced the
defendant’s guideline range had it been in place when the defendant
was initially sentenced. Specifically, a court is authorized to modify
an otherwise final sentence, on a motion or its own initiative,
in 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
6
No. 15‐1829
U.S.C. 994(o) . . . after considering the
factors set forth in section 3553(a) to the
extent they are applicable, if such a
reduction is consistent with applicable
policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2).3 The Commission’s applicable policy
statement appears at U.S.S.G. § 1B1.10 and provides that a court may
modify a sentence “[i]n a case in which a defendant is serving a term
of imprisonment, and the guideline range applicable to that
defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection (d).”
U.S.S.G. § 1B1.10(a)(1).4 A defendant is thus eligible for a
modification if he has been sentenced to a term of imprisonment
“based on” a guideline range that has “subsequently been lowered
by” an enumerated, retroactive amendment, and the “guideline
range applicable” to him has been “lowered as a result.”
To determine whether and to what extent a reduction is
warranted, a district court must calculate the “amended guideline
range that would have been applicable to the defendant if the
amendment(s) to the guidelines listed in [§ 1B1.10(d)] had been in
effect at the time the defendant was sentenced.” Id. § 1B1.10(b)(1).
In so doing, the court is directed to “substitute only the amendments
. . . for the corresponding guideline provisions that were applied
when the defendant was sentenced and [to] leave all other guideline
application decisions unaffected.” Id. If the court concludes that the
defendant is eligible for a sentence modification based upon the
amended guideline range, it should proceed to determine whether,
in its discretion, a reduction is warranted in light of the applicable
3
We have previously recognized that the “sentencing range” and “guideline range”
are the same. See United States v. Rivera, 662 F.3d 166, 173 (2d Cir. 2011), superseded on
other grounds by U.S.S.G. § 1B1.10 (2011).
4
Amendment 782 is listed, in relevant part, in § 1B1.10(d).
7
No. 15‐1829
§ 3553(a) factors and the defendant’s circumstances, including post‐
sentencing conduct. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10 cmt.
n.1(B)(i)–(iii); see also Dillon v. United States, 560 U.S. 817, 826 (2010)
(describing this two‐step process). Thus, § 3582(c)(2) “does not
authorize a [plenary] sentencing or resentencing proceeding,” Dillon,
560 U.S. at 825, but rather “empowers district judges to correct
sentences that depend on frameworks that later prove unjustified”
by reducing a sentence in circumstances specified by the
Commission, Freeman v. United States, 564 U.S. 522, 526 (2011)
(plurality opinion).
II.
We now consider whether Derry is eligible for a sentence
modification based upon Amendment 782, which yielded a revised
guideline range (235 to 293 months) that was lower than the range
applied at his original sentencing (360 months to life) but the same
as the range applied at his 2011 sentence modification.
The district court assumed that Derry had been “sentenced to a
term of imprisonment based on a sentencing range” that has been
lowered by Amendment 782, 2015 WL 3407924, at *1 (quoting 18
U.S.C. § 3582(c)(2)), because, in its view, the term “sentenced”
“likely refers to the sentence imposed at the original sentencing
hearing,” and the guideline range applied to Derry at his original
sentencing was subsequently lowered by the amendment, id. The
court went on to conclude, however, that under the Guidelines
policy statement, the “guideline range applicable” to Derry was the
range applied at his sentence modification, and that range had not
been “lowered as a result of” Amendment 782 because it remained
the same as before. Id. at *2 (quoting U.S.S.G. § 1B1.10(a)(1)). The
court thought that this interpretation best accorded with the policy
of finality in sentencing: since Derry had “already been afforded
judicial consideration of whether his sentence should be reduced in
light of an amended sentencing range of 235–293 months,” allowing
8
No. 15‐1829
him to seek a modification based on the same range would be akin
to providing “multiple bites at the same apple.” Id. at *4.
Derry contends that the district court correctly determined
that he was sentenced to a term of imprisonment “based on” a
guideline range that has subsequently been lowered by Amendment
782, but erred when it construed “applicable guideline range” to
refer to the range applied at his 2011 sentence modification. With
respect to the former, Derry urges that the term “sentenced” in
§ 3582(c)(2) is equivalent to the formal process of “sentencing,”
which is distinct from a sentence modification and refers to the
procedure described in Federal Rule of Criminal Procedure 32 that
results after a number of steps in the imposition of a term of
imprisonment and the entry of a judgment of conviction. Under this
reading, Derry was “sentenced” to a term of imprisonment at his
original sentencing, and the guideline range upon which his
sentencing was based is 360 months to life. The government
effectively concedes this point and opts to instead contest the
meaning of “applicable guideline range” under § 1B1.10.5
We cannot agree that Derry has been sentenced to a term of
imprisonment “based on” the guideline range applied at his original
sentencing. Although Derry’s argument is creative, his reliance on
the term “sentenced” misses the mark. The focal point of § 3582 is
not the moment at which the defendant was “sentenced,” nor is it
the Rule 32 “sentencing.” Indeed, the latter term does not even
appear in the statute; the sole references to “sentencing” occur in the
contexts of the “Sentencing Commission” and the “sentencing
range.” See 18 U.S.C. § 3582(a), (c)(1)(A), (c)(2).
5
Although the government does not argue that Derry is ineligible for a further
reduction under the statutory text of § 3582(c)(2) and focuses instead on his eligibility
under the Guidelines policy statement, we nonetheless decide this appeal on this
ground because we find that, as a matter of statutory construction, § 3582(c)(2) does not
permit him the relief he seeks. Further, because Derry forcefully argued in his brief
and reply brief that he is eligible for relief under § 3582(c)(2), he is not prejudiced by
our taking up this issue in spite of the government’s silence.
9
No. 15‐1829
The operative term, rather, is the “term of imprisonment” or
“sentence” that the defendant is serving. We think this is apparent
from the text and structure of the statute. Section 3582 is titled
“Imposition of a sentence of imprisonment.” Subsection (a) outlines
the factors to be considered by the district court in deciding whether
to impose a “term of imprisonment” in the first instance and, if so, in
setting the term’s length. Subsection (b) provides that a “sentence to
imprisonment” may be appealed, modified, or corrected only in
limited circumstances. And subsection (c), titled “Modification of an
imposed term of imprisonment,” provides that “[t]he court may not
modify a term of imprisonment once it has been imposed except,”
inter alia, when a defendant “has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently
been lowered.” Section 3582 thus sets forth the circumstances in
which a district court should impose a term of imprisonment on a
defendant and when that term may be revised.
Accordingly, the relevant inquiry under § 3582(c)(2) is not
when the formal process of “sentencing” occurred, but what term of
imprisonment the defendant is serving and what guideline range
serves as the basis for that sentence. When a district court modifies
a term of imprisonment pursuant to § 3582(c)(2), it replaces the
previous term of imprisonment with a new one based on the
amended guideline range, and amends the judgment to reflect the
sentence that comes into effect. See 18 U.S.C. § 3582(b)–(c). In other
words, as a matter of fact, the old sentence no longer exists, and the
only term of imprisonment to which the defendant has been
“sentenced” is “based on” the guideline range applied in the
modification proceeding. Derry’s reliance on the word “sentenced”
does not persuade us otherwise because “sentenced” is not the same
as the formal Rule 32 act of “sentencing,” and a defendant who
receives a sentence modification undoubtedly has been sentenced to
a new term of imprisonment. That is, after all, why defendants like
10
No. 15‐1829
Derry seek a modification in the first place.6
This conclusion is consistent with our case law in other
contexts. In United States v. Williams, for instance, we held that a
defendant who was subject to the crack cocaine guideline but
sentenced pursuant to a higher statutory mandatory minimum was
ineligible for a modification based upon Amendment 706, which
reduced the crack cocaine guideline range, because the statutory
minimum had “subsumed and displaced the otherwise applicable
guideline range,” such that his sentence was “as a matter of fact”
based on the mandatory minimum. 551 F.3d 182, 185–86 (2d Cir.
2009) (alterations in original). In United States v. Johnson, we
affirmed our holding in Williams that the mandatory minimum
displaces the otherwise applicable guideline range, and deemed a
defendant ineligible for a sentence modification when the
amendment at issue generated a guideline range of 120 months, as
opposed to the initial range of 120 to 134 months. 732 F.3d 109,
114–15 (2d Cir. 2013).
While neither of these cases addresses a scenario in which a
defendant seeks a further sentence modification, their focus upon
the final, as opposed to interim, guideline calculation is instructive.
Just as we do not look to the interim guideline ranges used in a
single sentencing proceeding, so too we should not look to the
guideline ranges applied in earlier sentencing proceedings when
those ranges have been subsumed and displaced by a range that
6
Dillon’s distinction between plenary sentencing and sentence modification is
consequently inapposite. In any event, Dillon simply recognized that § 3582(c)(2)
proceedings are not “sentencing” proceedings that implicate the constitutional interests
underlying United States v. Booker, 543 U.S. 220 (2005). Dillon, 560 U.S. at 828. The
Supreme Court did not reject the basic proposition that a judge who exercises his
discretion to modify a sentence pursuant to § 3582(c)(2) assigns a new term of
imprisonment based on the § 3553(a) factors and the defendant’s circumstances. See id.
at 826–27 (observing that a court modifying a sentence “does not impose a new
sentence in the usual sense” because its analysis is circumscribed by the eligibility
requirement and the Commission’s policy statements, such as those governing the
permissible extent of a reduction for eligible defendants) (emphasis added).
11
No. 15‐1829
provides the basis for the term of imprisonment that the defendant is
serving. In both scenarios, the defendant is serving a sentence based
on the guideline range that was most recently applied, and he
should be eligible for a modification only if an amendment affects
the guideline range that actually underlies his sentence. Cf. Freeman,
564 U.S. at 535 (Sotomayor, J., concurring) (“To ask whether a
particular term of imprisonment is ‘based on’ a Guidelines
sentencing range is to ask whether that range serves as the basis or
foundation for the term of imprisonment.”). Derry’s alternative
reading would undermine the statute’s purpose of allowing a
narrow exception to the rule of finality in sentencing when a
defendant has been disadvantaged by the sentencing range that an
amendment sought to correct, such that a modification could
remedy “whatever marginal effect the since‐rejected Guideline had
on the defendant’s sentence.” Id. at 530 (plurality opinion). When a
defendant is serving a sentence based on a guideline range that has
not been further reduced by an amendment, he is not disadvantaged
because the marginal effect of the since‐rejected guideline range on
his sentence is non‐existent.
Our decision today is in accord with the holdings of our sister
circuits. In United States v. Tellis, for example, the defendant was
subject to the career offender guideline, U.S.S.G. § 4B1.1, and the
crack cocaine guideline, U.S.S.G. § 2D1.1, and was sentenced under
the latter. The district court subsequently granted a sentence
modification based on Amendment 706, using § 4B1.1 as the new
“starting point” in its calculation. 748 F.3d 1305, 1307 (11th Cir.
2014). When Tellis sought a second modification based upon
Amendment 750, which further reduced the base offense level for
his crack cocaine conviction, the district court held that he was
ineligible “because he was sentenced as a career offender.” Id. at
1308. On appeal, Tellis argued that “relying on the career offender
provisions now would constitute a re‐sentencing proceeding as
opposed to a modification proceeding,” since the career offender
12
No. 15‐1829
guideline had not been applied at his original sentencing. Id. at 1309
(internal quotation marks omitted). The Eleventh Circuit disagreed,
reasoning that “[b]ecause Mr. Tellis’s Amendment 706 modification
properly resulted from his career offender status,” his “term of
imprisonment [was] based on the career offender guideline”;
consequently, “Amendment 750 [had] not lower[ed] his offense level
after the Amendment 706 modification, and thus [had] not alter[ed]
the guideline range.” Id. at 1309–10. Two other circuits have
reached the same conclusion. See United States v. Banks, 770 F.3d 346,
348 (5th Cir. 2014) (per curiam) (“[U]nder section 3582, a defendant’s
sentence is ‘based on’ the guidelines range for the sentence he is
currently serving, not the guidelines range used in his original
sentencing.”); United States v. Wormley, 471 F. App’x 837, 838 (10th
Cir. 2012) (“Since Wormley was resentenced [under § 3582(c)(2)]
pursuant to the statutory minimum rather than the guidelines, he
cannot claim to be serving a term of imprisonment based on a
sentencing range that was later lowered by the Sentencing
Commission.”). Cf. United States v. Trujillo, 713 F.3d 1003, 1006 (9th
Cir. 2013) (where the defendant had been denied a prior
modification request, he was “serving a sentence of imprisonment
imposed upon him at the time of his conviction,” “and the district
court had jurisdiction under § 3582(c)(2) to entertain his second
motion because the term of that sentence was ‘subsequently’
lowered by the Sentencing Commission”).7
Derry’s remaining argument as to § 3582(c)(2) is unpersuasive.
He contends that under United States v. Rivera, “based on” and
“applicable guideline range” should be read identically, see 662 F.3d
166 (2d Cir. 2011), and, under U.S.S.G. § 1B1.10 cmt. a, the latter term
is defined as the guideline range applied at the original sentencing.
7
Two other circuits have held that a defendant is not eligible for a modification in
circumstances such as Derry’s, but it is not clear whether they did so because of
§ 3582(c)(2)’s “based on” requirement or § 1B1.10(a)’s “applicable guideline range”
requirement. See United States v. Manigault, 541 F. App’x 145, 147–48 (3d Cir. 2013);
United States v. Broadwater, 471 F. App’x 534, 535 (7th Cir. 2012).
13
No. 15‐1829
But even assuming that Derry’s interpretation of “applicable
guideline range” is correct, Rivera’s understanding of that term –
and, by implication, its relationship to “based on” – has been
abrogated by the very Guidelines comment upon which he relies.
United States v. Steele, 714 F.3d 751, 756 (2d Cir. 2013). As a result, we
would not be precluded from construing “based on” and “applicable
guideline range” differently.
In sum, we hold that a defendant who has received a sentence
modification is serving a term of imprisonment that is “based on”
the guideline range applied at his most recent sentence modification.
Here, Derry’s sentence is “based on” the guideline range of 235 to
293 months that was applied at his 2011 sentence modification, and
that range has not “subsequently been lowered by” Amendment
782. Accordingly, Derry is ineligible for a sentence modification.
CONCLUSION
For the foregoing reasons, and finding Derry’s remaining
arguments without merit, the decision of the district court is
AFFIRMED.
14
