Filed: May 22, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7155 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JATIA TAVARUS BARRETT, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:08-cr-00490-WO-1; 1:10-cr-00123- WO-2) Argued: January 28, 2014 Decided: May 22, 2014 Before KING, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7155 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JATIA TAVARUS BARRETT, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:08-cr-00490-WO-1; 1:10-cr-00123- WO-2) Argued: January 28, 2014 Decided: May 22, 2014 Before KING, SHEDD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opin..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7155
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JATIA TAVARUS BARRETT,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:08-cr-00490-WO-1; 1:10-cr-00123-
WO-2)
Argued: January 28, 2014 Decided: May 22, 2014
Before KING, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina, for Appellant. Robert Michael
Hamilton, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Ripley Rand, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant Jatia Tavarus Barrett appeals from the district
court’s denial of his motions for sentence reductions, pursued
under 18 U.S.C. § 3582(c)(2) and the Fair Sentencing Act of 2010
(the “FSA”). As explained below, we affirm.
I.
A.
Barrett was a street-level drug dealer in and around Stanly
County, in the Middle District of North Carolina. On December
15, 2008, a grand jury in that district returned an indictment
charging Barrett with conspiracy to distribute five grams or
more of crack cocaine, in contravention of 21 U.S.C. § 846, plus
three substantive counts of distributing crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (the “2008 case”). On
February 4, 2009, Barrett pleaded guilty to one of the
distribution counts, in exchange for the United States
Attorney’s agreement to dismiss the other three charges.
Because Barrett had a prior conviction for a felony drug
offense, he faced a statutory maximum penalty of life in prison.
Barrett’s sentencing in the 2008 case took place in
Winston-Salem on March 10, 2010. The presentence report (“PSR”)
deemed Barrett responsible for 22.8 grams of crack cocaine. The
PSR further recommended that he be categorized as a career
2
offender pursuant to section 4B1.1 of the Sentencing Guidelines
(the “career offender provision”), on account of his prior
convictions for robbery and cocaine distribution. 1 Because
Barrett faced a potential life sentence, application of the
career offender provision resulted in an offense level of 37 and
a criminal history category of VI. See USSG § 4B1.1(b). After
receiving a three-level reduction in offense level for
acceptance of responsibility, Barrett’s advisory Guidelines
range was 262 to 327 months in prison. The district court
adopted the PSR without amendment.
During the sentencing proceedings, the district court
observed that Barrett’s advisory Guidelines range would have
been significantly lower if his offense of conviction had
involved powder cocaine instead of crack cocaine, stating that
“there is a lot of activity going on in . . . Congress as to
that [disparity].” J.A. 58. 2 The court asked, “Why should the
Court not consider at least that range, 188 to 235 [months, the
1
The career offender provision mandates an increased
sentence for a defendant convicted of a controlled substance
offense, if he has previously been convicted of at least two
other qualifying felony offenses. Specifically, it provides for
a criminal history category of VI and an offense level dependent
on the statutory maximum applicable to the offense of
conviction. See USSG § 4B1.1(b).
2
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
3
career offender range for a powder cocaine offense], when it
considers where an appropriate sentence in this case would be?”
Id. 3 The court then varied downward on that basis, imposing a
sentence of 200 months. The judgment in the 2008 case was
entered on March 24, 2010.
Six days later, on March 30, 2010, Barrett was indicted
anew, for conspiracy to distribute crack cocaine, in
contravention of 21 U.S.C. § 846, plus distributing crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) (the “2010
case”). On June 9, 2010, Barrett pleaded guilty to the
conspiracy charge in the 2010 case in exchange for dismissal of
the distribution count. Under the law that applied at the time
of his guilty plea, Barrett again faced a life sentence.
Soon thereafter, however, Congress passed the FSA, which
took effect on August 3, 2010. See Pub. L. No. 111-220, 124
Stat. 2372. By increasing the drug quantities necessary to
trigger the statutory mandatory penalties for crack cocaine
offenses, the FSA aimed to reduce the disparity between crack
and powder cocaine sentences. The FSA also directed the
3
The district court’s commentary concerning the “disparity
between crack cocaine and powder cocaine” referred to what was
then the widely held belief that the 100-to-1 crack-to-powder
sentencing ratio established by statute and embodied in the
Guidelines was unjustified and race-based. See J.A. 63; see
also Dorsey v. United States, 132 S. Ct. 2321, 2328-29 (2012).
4
Sentencing Commission to promulgate conforming amendments to the
Guidelines, which the Commission did by, inter alia, adopting
Amendment 750 in April 2011. 4
Barrett’s sentencing hearing in the 2010 case occurred on
August 18, 2010, just fifteen days after the FSA’s effective
date. His counsel did not then contend, however, that the FSA
had impacted Barrett’s advisory Guidelines range. The PSR — to
which Barrett did not object — held him responsible for 52.3
grams of crack, and he was again classified as a career
offender. In light of the pre-FSA statutory maximum of life,
and factoring in Barrett’s acceptance of responsibility, the PSR
recommended the same Guidelines range that applied in the 2008
case: 262 to 327 months in prison.
As in the 2008 case, the sentencing court in the 2010 case
elected to vary downward on the basis of the crack-powder
disparity. With explicit reference to “the reasons set forth
. . . in the sentencing in the [2008 case],” the court concluded
that the “guideline range . . . that would have been established
by the powder cocaine penalties [was] sufficient.” J.A. 134.
4
Part A of Amendment 750 to the Sentencing Guidelines
revised aspects of the Drug Quantity Table in Guidelines section
2D1.1 to account for the changes in the statutory penalties made
in the FSA. See USSG app. C, amend. 750 (2011). The Sentencing
Commission subsequently voted to include Part A in Guidelines
section 1B1.10 as an amendment that may be considered for
retroactive application. See id., amend. 759.
5
Accordingly, Barrett was sentenced to another 200-month term, to
be served concurrently with the 200-month sentence that was
imposed five months earlier in the 2008 case. The judgment in
the 2010 case was entered on September 7, 2010.
While incarcerated, Barrett provided substantial assistance
to the government. In recognition thereof, on June 8, 2011, the
United States Attorney filed a motion in the district court
pursuant to Federal Rule of Criminal Procedure Rule 35(b),
seeking reductions in each of Barrett’s sentences. On July 8,
2011, the court granted the motion and reduced each of Barrett’s
sentences to 100 months, to run concurrently.
B.
Six months later, on January 11, 2012, Barrett filed a pair
of pro se motions pursuant to 18 U.S.C. § 3582(c)(2), seeking a
further reduction by the district court of his concurrent 100-
month sentences. Generally, a court lacks authority to modify a
term of imprisonment “once it has been imposed.” See 18 U.S.C.
§ 3582(c). Section 3582(c)(2), however, creates a narrow
exception to the general rule, by authorizing a sentencing court
to modify a defendant’s term of imprisonment if it was “based on
a sentencing range that has subsequently been lowered by the
Sentencing Commission.”
In his pro se motions, Barrett relied on Amendment 750,
which sought to harmonize the base offense levels in the
6
Guidelines with the new statutory penalties wrought by the FSA.
The government opposed Barrett’s § 3582(c)(2) motions,
explaining that Amendment 750 had no impact on his concurrent
sentences because they were not based on a sentencing range that
was affected by Amendment 750, but on the career offender
provision, which remained unchanged. Barrett was then appointed
counsel, who responded to the government’s opposition and agreed
that Amendment 750 did not lower Barrett’s sentencing range.
Barrett’s counsel argued, however, that the FSA’s more lenient
statutory maximums, if applied, would have resulted in a lower
sentencing range under the career offender provision. 5 At that
5
To explain Barrett’s contention more concretely, we
consider how his advisory Guidelines ranges in the two cases
would have been calculated with and without the benefit of the
FSA.
Absent the FSA
• In both the 2008 and 2010 cases, Barrett was
subject to statutory maximum sentences of life
imprisonment.
• Because he was classified as a career offender in
each case, Guidelines section 4B1.1(b) provided
the appropriate base offense level. Since the
statutory maximum for each underlying offense was
life imprisonment, the base offense level in each
case was 37.
• After receiving a three-level reduction in each
case for acceptance of responsibility pursuant to
Guidelines section 3E1.1, Barrett’s offense level
was 34. Combined with an automatic criminal
(Continued)
7
time, our precedent foreclosed any retroactive application of
the FSA, see United States v. Bullard, 645 F.3d 237, 248 (4th
Cir. 2011), but Barrett’s appointed counsel properly sought to
preserve Barrett’s right to seek a sentence reduction “[s]hould
the Supreme Court or Congress determine that the reduced
penalties contained within the [FSA] . . . are applicable to
[Barrett].” J.A. 225.
As if on cue, the Supreme Court, during the pendency of
Barrett’s § 3582(c)(2) motions, rendered a key decision
concerning retroactivity issues relating to the FSA. See Dorsey
v. United States, 132 S. Ct. 2321 (2012). In Dorsey, the Court
history category of VI, his advisory Guidelines
range was 262 to 327 months.
Applying the FSA
• Under the FSA, Barrett would have been subject to
a reduced statutory maximum sentence of forty
years in each case.
• Pursuant to Guidelines section 4B1.1(b), where
the statutory maximum for the underlying offense
is twenty-five years or more (but not life), the
base offense level is 34.
• After receiving a three-level reduction for
acceptance of responsibility pursuant to
Guidelines section 3E1.1, Barrett’s offense level
would have been 31. Combined with an automatic
criminal history category of VI, his advisory
Guidelines range would have been 188 to 235
months.
8
recognized “six considerations” that, “taken together,
convince[d it] that Congress intended the [FSA’s] more lenient
penalties to apply to those offenders whose crimes preceded
August 3, 2010, but who were sentenced after that date,” as
Barrett was in the 2010 case. See id. at 2331. 6 The Court did
not, however, decide whether the FSA should also be applied to
defendants who were sentenced prior to its effective date, as
Barrett was in the 2008 case.
On June 27, 2012, without reference to the potential impact
of Dorsey, the district court entered orders denying Barrett’s
§ 3582(c)(2) motions, concluding that the statutory requirements
had not been satisfied. Barrett timely noticed two appeals,
which were consolidated for our consideration. We possess
jurisdiction pursuant to 28 U.S.C. § 1291.
6
As the Dorsey Court explained, the “six considerations”
illuminating Congress’s intent included: (1) that “the 1871
saving statute [1 U.S.C. § 109] permits Congress to apply a new
Act’s more lenient penalties to pre-Act offenders without
expressly saying so”; (2) that the Sentencing Reform Act, 18
U.S.C. § 3551 et seq., established a “special . . . background
principle” of retroactivity for Guidelines sentencing; (3) that
language in the FSA implies that Congress intended to follow the
Sentencing Reform Act’s “background principle”; (4) that failure
to apply the FSA to the post-enactment sentencing of pre-
enactment offenders would create disparities of a kind that the
Sentencing Reform Act and the FSA were intended to prevent; (5)
that failure to apply the FSA to the post-enactment sentencing
of pre-enactment offenders would actually give rise to new
disparities not previously present; and (6) the lack of strong
countervailing considerations. See 132 S. Ct. at 2331-35.
9
II.
We review for abuse of discretion a district court’s denial
of a motion for a sentence reduction made pursuant to 18 U.S.C.
§ 3582(c). See United States v. Munn, 595 F.3d 183, 186 (4th
Cir. 2010). Any sentencing error that “does not affect [the]
substantial rights” of the defendant is harmless and “must be
disregarded.” See Fed. R. Crim. P. 52(a).
III.
Barrett’s appellate contention is that the district court
erred in denying his 18 U.S.C. § 3582(c)(2) motions for reduced
sentences in the 2008 and 2010 cases. That contention
implicates two issues. First, we must assess whether the more
lenient statutory penalties provided for in the FSA are
retroactively applicable to either of Barrett’s sentences,
resulting in a lower advisory Guidelines range under the career
offender provision. Second, if the FSA is applicable to either
of Barrett’s sentences, we must decide whether § 3582(c)(2) is
an appropriate vehicle for seeking relief.
A.
Barrett’s assertion that the FSA applies retroactively to
the 2008 case, though perhaps viable when first raised, has been
foreclosed by intervening precedent in this Court. After
Barrett filed and briefed this appeal, we rendered our decision
10
in United States v. Black, 737 F.3d 280 (4th Cir. 2013). Like
Barrett, the defendant in Black urged us to extend the Supreme
Court’s holding in Dorsey v. United States,
132 S. Ct. 2321
(2012), insisting that the “six considerations” identified by
the Dorsey Court applied with equal force to sentences imposed
prior to the effective date of the FSA. Unconvinced, we
concluded that Dorsey did not disturb our earlier ruling in
United States v. Bullard,
645 F.3d 237, 249 (4th Cir. 2011),
that the FSA does not apply retroactively to a defendant
sentenced before August 3, 2010. See
Black, 737 F.3d at 287.
Furthermore, we rejected Black’s contention that a § 3582(c)(2)
proceeding was tantamount to a “new” sentencing proceeding, and
thus sufficient to trigger application of the FSA. See
id.
Barrett’s contentions with respect to the 2008 case fall
squarely within the ambit of Black and Bullard, and therefore
must fail. 7 Accordingly, the district court did not err in
denying Barrett’s § 3582(c)(2) motion in that case.
7
Barrett attempts to distinguish his 2008 case from Black,
emphasizing that Black was sentenced to a statutory mandatory
term of imprisonment, while Barrett’s sentence in the 2008 case
was driven by the career offender provision. The sole
consideration in calculating Barrett’s sentencing range under
the career offender provision, however, was the applicable
statutory maximum, foreclosing Barrett’s asserted distinction.
11
B.
Turning to Barrett’s sentence in the 2010 case, there is no
doubt that, in light of Dorsey, the FSA is applicable.
Likewise, the parties do not dispute that application of the FSA
to the 2010 case would have lowered Barrett’s advisory
Guidelines range under the career offender provision. But we
must yet consider whether Barrett’s request for a sentence
reduction predicated on a retroactive application of the FSA is
cognizable under § 3582(c)(2).
The government maintains that § 3582(c)(2) is not an
appropriate vehicle for the relief Barrett seeks, asserting that
this issue, too, was conclusively resolved by Black. There, we
explained that, even if Black had been entitled to the benefit
of the FSA, that right could not be vindicated under
§ 3582(c)(2), which applies only to retroactive amendments to
the Guidelines, as opposed to statutory changes made by
Congress. See Black, 737 F.3d at 286-87 (citing United States
v. Blewett,
746 F.3d 647, 656 (6th Cir. 2013) (en banc) (“[A]
mandatory minimum subsequently lowered by Congress is not, as
§ 3582(c)(2) requires, a ‘sentencing range . . .
subsequently . . . lowered by the Sentencing Commission.’”)).
Barrett counters that Black’s discussion of the scope of
§ 3582(c)(2) is not controlling because that explanation was
dicta; that is, having held that Congress did not intend for the
12
FSA to apply retroactively to Black’s sentence, there was no
need for the court to evaluate whether § 3582(c)(2) could have
been used to seek a sentence modification on the basis of the
FSA. See, e.g., Pittston Co. v. United States, 199 F.3d 694,
703 (4th Cir. 1999) (recognizing as dicta any “statement in a
judicial opinion that could have been deleted without seriously
impairing the analytical foundation of the holding — that, being
peripheral, may not have received the full and careful
consideration of the court that uttered it”). Barrett urges us
to interpret § 3582(c)(2) broadly, predicated on the premise
that Congress intended for the FSA’s new statutory sentences to
apply immediately and uniformly in conjunction with the
Guidelines, including § 3582(c)(2). Such a contention, though
something of a reach, is not without support. See
Blewett, 746
F.3d at 685-90 (Rogers, J., dissenting). 8
Frankly, neither party has proposed a particularly
desirable outcome. Either we overlook the fact that Barrett was
8
In his dissent to the Sixth Circuit’s en banc majority in
Blewett, Judge Rogers explained his view that “each of the
interpretive foundations for the Dorsey Court’s analysis applies
by analogy to the application of the [FSA’s] statutory minimums
under § 3582(c)(2).” 746 F.3d at 685. Accordingly, his opinion
reasoned that “when a [post-FSA] sentence is properly calculated
under 3582(c)(2) because a guideline has been retroactively
changed, the new statutory minimums should be applied as well.
In other words, when a [post-FSA] sentencing court properly has
before it the calculation of a sentence, the court should use
the [FSA] minimums.”
Id.
13
entitled to be sentenced under the FSA in the 2010 case, or we
stretch the limits of § 3582(c)(2) in the service of fairness
and equity. Fortunately, Rule 52(a) mandates a more palatable
result: assuming the district court erred in denying Barrett’s
§ 3582(c)(2) motion with respect to the 2010 case, we must
nevertheless affirm because such error was demonstrably
harmless. See United States v. Hargrove,
701 F.3d 156, 161 (4th
Cir. 2011). As our Court has recognized, a sentencing error is
harmless “if the resulting sentence was not longer than that to
which the defendant would be otherwise subject.” See United
States v. Metha,
594 F.3d 277, 283 (4th Cir. 2010); see also
United States v. Revels,
455 F.3d 448, 452 (4th Cir. 2006)
(explaining that a remand for resentencing is little more than
“an empty formality” if the sentence the court would impose on
remand is a “foregone conclusion”). As the government points
out, a remand in the 2010 case for application of the FSA and
Dorsey would yield no change to Barrett’s sentence.
Absent application of the FSA, Barrett faced an advisory
Guidelines range of 262 to 327 months based on the career
offender provision. Like Congress, however, the sentencing
court deemed this sentencing range to be unfair in light of the
more lenient penalties applicable to powder cocaine offenders.
Accordingly, the court varied downward, explicitly because of
the advisory range — 188 to 235 months — that would have
14
applied to a similarly situated offender charged with conspiring
to distribute the same quantity of powder cocaine. That same
advisory range would apply — and for the same reasons — if
Barrett were to be resentenced in light of Dorsey and the FSA.
Significantly, the crack-powder disparity was the only reason
given by the court for its downward variance. Thus, there is no
basis for concluding that the court would impose a different
sentence in the 2010 case on remand. Essentially, the
sentencing court used its discretion to afford Barrett relief
under the FSA even before the Supreme Court determined that any
relief was due. We should acknowledge the district court’s
wisdom, rather than requiring it to conduct remand proceedings
on another sentence that is a “foregone conclusion.” See
Revels, 455 F.3d at 452.
IV.
Pursuant to the foregoing, we affirm the judgments of the
district court.
AFFIRMED
15
