Filed: Oct. 19, 2016
Latest Update: Mar. 03, 2020
Summary: 15-3245-cr (L) United States v. Lewis UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
Summary: 15-3245-cr (L) United States v. Lewis UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ..
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15-3245-cr (L)
United States v. Lewis
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
19th day of October, two thousand sixteen.
Present:
GUIDO CALABRESI
DEBRA ANN LIVINGSTON,
Circuit Judges,
JED S. RAKOFF
District Judge.*
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. 15-3245-cr(L)
15-3307-cr(CON)
SAMOL UM, AKA Sam, ANDREW BLAIR, ROBERT
EDWARDS, AKA Robert Williams, AKA Bo-Rock,
KEVIN GALLMAN, AKA Kev, Robert Bonner, Floyd
Williams, AKA Mouse, CARLENE O’CONNOR,
ROBERT BOWEN, AKA Cuz, AKA Cream, AKA
Bowen Kizair, CONNIE ALSTON, HENRY NEAL,
AKA Hank, TREMAINE WARD, AKA Papi, JASON
ROMAN, AKA Baby J, AKA JS,
*
Judge Jed S. Rakoff, of the United States District Court for the Southern District, sitting by
designation.
1
Defendants,
ANTHONY LEWIS, AKA Tony, AKA Barry
Fitzgerald James, AKA Jamaican Tony,
Defendant-Appellant.
_____________________________________
For Defendant-Appellant: RICHARD A. REEVE, Sheehan & Reeve, New Haven,
CT
For Defendant-Appellee: ANTHONY E. KAPLAN, Assistant United States
Attorney (SANDRA S. GLOVER, Assistant United States
Attorney, of counsel, on the brief), for Dierdre M.
Daly, United States Attorney for the District of
Connecticut, New Haven, CT
UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
On December 3, 2004, Defendant-Appellant Anthony Lewis (“Defendant”) pled guilty to
one count of conspiring to possess with intent to distribute fifty or more grams of cocaine
base/crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846. The
district court initially calculated Defendant’s total offense level as 37 — 38 for unlawful
possession of 1.5 kilograms or more of cocaine under § 2D1.1(c)(1) of the Sentencing
Guidelines, with a two-level increase for possession of a firearm under § 2D1.1(b)(1), and a
three-level decrease for acceptance of responsibility under § 3E1.1(a). While Defendant was
also a career offender, his total offense level under the Career Offender Table would only have
been 34, U.S.S.G. § 4B1.1(b), and so, as required by the Guidelines, the district court used
Defendant’s drug table offense level in calculating the governing Guidelines range. Based on
his total offense level of 37 and his Criminal History Category of VI, Defendant faced 360
months to life in prison.
2
At sentencing, while the Government indicated that Defendant had “provide[d]
assistance,” it maintained that he “did not live up to his cooperation agreement” in connection
with trial testimony he provided. App’x 58–60. The Government therefore elected not to file
a motion for a departure from the Guidelines. See U.S.S.G. § 5K1.1. Nonetheless the district
court (Kravitz, J.) sentenced Defendant to a below-Guidelines sentence of 192 months, together
with five years of supervised release, based on Defendant’s “substantial cooperation and
assistance to the Government,” his age, and “all the other factors set forth in 18 U.S.C.
§ 3553(a).” App’x 77.
Congress and the Sentencing Commission subsequently reduced the Guidelines for
crack-cocaine offenses in 2007, 2010, and 2014. Following each change, Defendant filed a
motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction. The district court denied each
motion. Defendant appeals the most recent two denials. We review de novo a district court’s
determination, as here, that a defendant is ineligible for a sentencing reduction. United States v.
Christie, 736 F.3d 191, 195 (2d Cir. 2013).
I. Defendant’s 2011 Motion
As relevant here, Defendant filed his first motion for a sentence reduction on December
30, 2011 following passage of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.
2372 (2010). Under the amended drug table, Defendant’s total offense level would have been
33, leading to a Guidelines range of 235 to 293 months.1 Defendant’s sentence was therefore
lower than the amended Guidelines range.
1
The Probation Department reasoned that because Defendant was a career offender, and his
offense level under the Career Offender Table was 37 (34 after the three-level decrease for
acceptance of responsibility), that offense level dictated the plicable Guidelines range, namely
3
Section 1B1.10 of the Sentencing Guidelines, a policy statement the Supreme Court has
deemed controlling, see Dillon v. United States, 560 U.S. 817, 821 (2010); see also 18 U.S.C.
§ 3582(c)(2), provides that a district court may not reduce a defendant’s term of imprisonment to
“less than the minimum of the amended guideline range” unless the sentence was originally
lower than the then-applicable Guidelines range “pursuant to a government motion to reflect the
defendant’s substantial assistance to authorities.” U.S.S.G. § 1B1.10(b)(2). Accordingly,
given that any reduction in Defendant’s sentence would have produced a term of imprisonment
below the applicable amended Guidelines range, he was not entitled to a sentence reduction
absent a Government motion. See United States v. Steele,
714 F.3d 751, 755 (2d Cir. 2013).
While Defendant admits that the Government did not file the requisite motion at his
sentencing, he argues that he still rendered substantial assistance that led to his below-Guidelines
sentence, and that, therefore, he is still eligible for a sentence reduction. Section
§ 1B1.10(b)(2)(B) is unambiguous, however, in requiring a government motion.
Further, the record does not suggest that Defendant provided the amount of assistance
that warranted a motion. The Government elected not to file a § 5K1.1 motion because it
believed Defendant did not testify truthfully. The district court likewise recognized that while
Defendant’s cooperation was “of assistance pretrial” so as to justify consideration under 18
U.S.C. § 3553(a), App’x 39, it was not “significant [enough] to generate the 5k1 [motion],” id. at
68.
Our decision in United States v. Erskine, 717 F.3d 131 (2d Cir. 2013), does not counsel a
different outcome. The footnote Defendant cites, see
id. at 137 n.6, merely summarizes the
262 to 327 months. See U.S.S.G. § 4B1.1(b). This determination is irrelevant to Defendant’s
first motion, but it is of central importance to his second.
4
practical import of § 1B1.10(b)(2)(B), and it nowhere suggests that the provision of substantial
assistance is sufficient absent a motion. The district court therefore correctly concluded that
Defendant was ineligible for a reduced sentence. See United States v. Thompson, 639 F. App’x
39, 41 (2d Cir. 2016) (summary order) (finding defendant ineligible for a sentence reduction in
part because “the government did not file a substantial-assistance motion at the time of
sentencing”).
II. Defendant’s 2015 Motion
On August 24, 2015, while Defendant’s motion for reconsideration was pending, and
following an additional reduction in the crack-cocaine Sentencing Guidelines, see Sentencing
Guidelines Manual, app. C., amend. 782 (2014), Defendant filed another motion under 18 U.S.C.
§ 3582(c)(2). Pursuant to the drug table, Defendant’s new total offense level would have been
31, leading to a Guidelines range of 188 to 235 months. The Probation Department reasoned,
however, that under § 4B1.1(b) of the Sentencing Guidelines, Defendant’s offense level of 37
under the Career Offender Table governed. Accordingly, his total offense level would have
been 34 (after a three-level reduction for acceptance of responsibility), and his amended
Guidelines range would have been 262 to 327 months, once again rendering his actual sentence
below the applicable Guidelines range.
On September 15, 2015, the district court summarily denied Defendant’s motion in a
form order. Both parties appear to assume that the district court adopted the Probation
Department’s reasoning in denying Defendant’s motion. We agree that Defendant was not
eligible for a sentence reduction on that basis.
In determining whether a defendant is eligible for a sentence reduction, § 1B1.10(b)(1)
directs district courts to
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determine the amended guideline range that would have been applicable to the
defendant if the [applicable amendments] had been in effect at the time the
defendant was sentenced. In making such determination, the court shall
substitute only the [applicable amendments] for the corresponding guideline
provisions that were applied when the defendant was sentenced and shall leave all
other guideline application decisions unaffected.
Defendant’s principal claim is that he was eligible for a reduced sentence because, when he was
sentenced, the district court used his drug table offense level under § 2D1.1 of the Sentencing
Guidelines, rather than his Career Offender Table offense level under § 4B1.1(b). Defendant
contends that such choice was a “guideline application decision[]” that cannot be disturbed. This
argument is meritless.
Section 1B1.10(b)(1) plainly requires the district court to look to the “guideline range that
would have been applicable” had the reduction been in effect at the time of sentencing.
Determining the applicable Guidelines range involves calculating the offense level. This, in
turn, requires applying § 4B1.1(b) of the Sentencing Guidelines, which provides that “if the
offense level for a career offender from the table in this subsection is greater than the offense
level otherwise applicable, the offense level from the table in this subsection shall apply.”
Therefore, because Defendant’s offense level under the Career Offender Table was higher than
that under the drug table, the former governed, leading to an applicable Guidelines range that
was higher than the sentence Defendant received, and rendering Defendant ineligible for a
sentence reduction. See U.S.S.C. § 1B1.10 Application Note 1(A) (emphasis added)
(explaining that a reduction is not authorized where “an amendment . . . is applicable to the
defendant but the amendment does not have the effect of lowering the defendant's applicable
guideline range because of the operation of another guideline or statutory provision.”).
This reasoning has support both in our Circuit, see United States v. Howard, 331 F.
App’x 818, 820 (2d Cir. 2009) (summary order) (“[D]efendant's status as a career offender was
6
an independent basis for establishing a base offense level of 34. Accordingly, the application of
a new base offense level for defendant's crack cocaine conviction did not lower defendant's base
offense level as a career offender, and defendant was not entitled to a reduction in his sentence.”)
(citations omitted), and among our sister circuits, see United States v. Tellis, 748 F.3d 1305,
1309 (11th Cir. 2014) (explaining that because the defendant was a career offender, the
guidelines amendment “did not lower his offense level . . . and thus did not alter the guideline
range” and so “the district court correctly concluded that it had no discretion to lower his
sentence.”); United States v. Hubbard, 508 F. App’x 561, 562 (7th Cir. 2013) (explaining that
the defendant was sentenced under the drug-quantity guidelines only because they provided a
higher offense level than the Career Offender Table, and that “if Amendment 750 had been in
effect at the time of the original sentencing, [the defendant] would have been sentenced as a
career offender,” such that use of Career Offender Table was warranted when considering the
defendant’s motion for a sentence reduction); United States v. Counts, 500 F. App’x 220, 220–21
(4th Cir. 2012) (per curiam) (indicating that where a retroactive amendment to the guidelines
reduces a defendant’s drug table offense level to lower than that dictated by the Career Offender
Table, the latter controls on a motion for a reduced sentence).
Our decision in United States v. McGee, 553 F.3d 225 (2d Cir. 2009) (per curiam), does
not suggest otherwise. In that case, we found a defendant eligible for a sentence reduction
where the district court explicitly granted a downward departure from the Guidelines range
dictated by the Career Offender Table to that dictated by the drug tables, thereby, in our view,
rendering the latter range the operative one for sentence-reduction purposes. 2 No such
2
The Sentencing Commission also subsequently, and explicitly, rejected McGee’s reasoning,
making clear that the “applicable guideline range” for sentence reduction purposes is that
7
circumstance exists here—there is no allegation that the district court departed from the Career
Offender Table. To the contrary, the district court used Defendant’s drug table offense level
under § 2D1.1 to determine the appropriate Guidelines range precisely because the base offense
level was higher thereunder.
Following § 4B1.1(b) here likewise does not produce a “perverse” result. Appellant’s
Br. 27. That section of the Sentencing Guidelines was applicable both before and after the
relevant sentencing reductions, and so it governed Defendant’s sentence at all relevant times. If
anything, it would be perverse to allow Defendant to evade the career offender guidelines simply
because he initially was subject to an even higher offense level. Indeed, Defendant’s
interpretation would result in him facing a lower Guidelines range upon resentencing than an
identical defendant would face if sentenced for the first time.
III. Conclusion
We have considered Defendant’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
determined prior to consideration of any departure. United States v. Montanez, 717 F.3d 287,
294 (2d Cir. 2013).
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