Filed: Nov. 08, 2012
Latest Update: Mar. 26, 2017
Summary: Case: 12-11960 Date Filed: 11/08/2012 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-11960 Non-Argument Calendar _ D.C. Docket No. 9:09-cr-80022-DTKH-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus JASON DAVID SHERMAN, a.k.a. Jason Sherman, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (Novembe
Summary: Case: 12-11960 Date Filed: 11/08/2012 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-11960 Non-Argument Calendar _ D.C. Docket No. 9:09-cr-80022-DTKH-1 UNITED STATES OF AMERICA, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee, versus JASON DAVID SHERMAN, a.k.a. Jason Sherman, llllllllllllllllllllllllllllllllllllllll Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (November..
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Case: 12-11960 Date Filed: 11/08/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11960
Non-Argument Calendar
________________________
D.C. Docket No. 9:09-cr-80022-DTKH-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JASON DAVID SHERMAN,
a.k.a. Jason Sherman,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 8, 2012)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Case: 12-11960 Date Filed: 11/08/2012 Page: 2 of 6
Jason David Sherman appeals the district court’s denial of his motion for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Sherman
argues that the district court erred when it determined that because his sentence
was based on a mandatory-minimum sentence, it lacked the authority to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2). Sherman contends that his current
72-month sentence was based upon the 121- to 151-month Guidelines range and a
substantial-assistance reduction, not the mandatory-minimum sentence in effect at
the time of his initial sentencing. The United States filed a brief in support of
confession of error. After a review of the record and briefs, we reverse the district
court’s finding that it had no authority to reduce Sherman’s sentence.
“We review de novo the district court’s legal conclusions regarding the
scope of its authority under the Sentencing Guidelines.” United States v. White,
305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam). “We review a district court’s
decision whether to reduce a sentence pursuant to § 3582(c)(2) for abuse of
discretion.” Id.
“As a general rule, district courts may not modify a term of imprisonment
once it has been imposed, except in specific circumstances delineated in 18 U.S.C.
§ 3582(c).” United States v. Williams,
549 F.3d 1337, 1339 (11th Cir. 2008) (per
curiam). One exception is for a “defendant who has been sentenced to a term of
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imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). “In such a case, ‘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.’” Williams, 549 F.3d at 1339 (quoting 18 U.S.C. § 3582(c)(2)).
The Fair Sentencing Act of 2010 (FSA), reflected in Amendment 750 to the
Sentencing Guidelines, reduced the statutory penalties for crack cocaine offenses.
See Fair Sentencing Act of 2010 § 2(a), Pub. L. No. 111-220, 124 Stat. 2372, 2372
(to be codified as amended at 21 U.S.C. § 841(b)(1)). As of November 1, 2011,
Amendment 750 applied retroactively. See U.S. Sentencing Guidelines Manual
(U.S.S.G.) app. C, amend. 713, at 253. Nevertheless, in a § 3582(c)(2)
proceeding, the district court lacks the authority to reduce a defendant’s sentence
when the amended guideline “does not have the effect of lowering the defendant’s
applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
In United States v. Liberse, the defendant’s Guidelines range at the time of
his original sentencing was 121 to 151 months.
688 F.3d 1198, 1199 (11th Cir.
2012). The defendant was subject to the 120-month mandatary minimum;
however, it did not affect the calculation of his Guidelines range because that
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mandatory minimum was less than the 121-month bottom of the Guidelines range.
Id. at 1199–1200. The defendant was not sentenced under a mandatory minimum,
but instead within the Guidelines range for his offense. Id. at 1200.
The government later filed a Federal Rule of Criminal Procedure Rule 35(b)
motion to reduce the defendant’s sentence based on his substantial assistance to
the government; the district court granted the motion and reduced the defendant’s
sentence to 97 months. Id. After the promulgation of Amendment 750, the
defendant filed a § 3582(c)(2) motion to reduce his sentence, which the district
court denied after concluding that it lacked the authority to reduce the defendant’s
sentence. Id.
This court noted that, regardless of whether the FSA applied, the defendant
would still be subject to the 120-month mandatory-minimum sentence. Id. at
1202. The mandatory minimum, we said, would be his amended Guidelines range
because the 120-month mandatory minimum was greater than the top of his
otherwise applicable amended Guidelines range of 70 to 87 months. Id.; see
U.S.S.G. § 5.G1(b). Since the defendant’s Guidelines range was lowered, we held
that the district court erred in concluding that it lacked the authority to reduce the
defendant’s sentence. Liberse, F.3d at 1202. Because the defendant had received
a substantial-assistance reduction from his original sentence, we determined that,
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based upon U.S.S.G. § 1B1.10(b)(2)(B), a comparable reduction to the amended
Guidelines range might be appropriate. Id. at 1203. We vacated and remanded for
the district court to consider to what extent, if any, the defendant’s sentence should
be reduced. Id.
This case is similar to Liberse. Sherman initially faced a Guidelines range
of 121 to 151 months. The mandatory minimum at the time of Sherman’s
sentencing was 120 months. Sherman was sentenced to 132 months of
imprisonment. The government, however, later filed a motion under Rule 35(b) to
reduce the 132-month sentence based on Sherman’s substantial assistance. The
district court granted the motion and re-sentenced Sherman to a 72-month term of
imprisonment.
As a result of FSA and its corresponding amendments, Sherman’s
Guidelines range was lowered from a range of 121 to 151 months of imprisonment
to a range of 78 to 97 months of imprisonment. But because Sherman was subject
to a 120-month mandatory minimum sentence, his Guidelines range must be 120
months of imprisonment. See U.S.S.G. § 5G1.1(b). This, however, is still a
reduction from the previously applied range of 121 to 151 months. See Liberse,
688 F.3d at 1202. Thus, because Sherman’s sentencing range was reduced by
Amendment 750, he meets the requirements of § 3582(c)(2), and the district court
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had the authority to consider reducing his sentence. See § 3582(c)(2).
Furthermore, because Sherman received a Rule 35(b) substantial assistance
reduction from his original 132-month sentence, pursuant to U.S.S.G.
§ 1B1.10(b)(2)(B), a comparable reduction to the amended Guidelines range may
be appropriate. See Liberse, 688 F.3d at 1202. Therefore, we vacate the district
court’s denial of Sherman’s § 3582(c)(2) motion, and remand for the district court
to consider to what extent, if any, Sherman’s sentence should be reduced. See id.
at 1203.
VACATED AND REMANDED.
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