United States v. Green
Opinion
In 2011, Defendant Marconia Green pleaded guilty to three counts of using a communication facility to facilitate the acquisition of cocaine powder in violation of
I.
A grand jury initially indicted Defendant on seven counts of possessing cocaine powder and cocaine base with intent to distribute and three counts of using a communication facility to facilitate the acquisition of cocaine powder. Pursuant to a plea agreement, the Government dismissed the possession charges, and Defendant pleaded guilty to the three communication-facility counts. At Defendant's sentencing hearing, the district court held Defendant's guideline range was 92 to 115 months' imprisonment. Notably, this guideline range is less than what the presentence investigation report recommended (110 to 137 months' imprisonment) and also less than what the guideline range would have been absent the plea agreement (188 to 235 months' imprisonment).
The district court, however, imposed an upward-variant sentence of 130 months' imprisonment. Before imposing this sentence, the court surveyed Defendant's extensive criminal history:
[D]efendant ... has a criminal career going back about 30 years that starts *1303 with a manslaughter conviction, proceeds to convictions for distribution of cocaine base-and here I'm ignoring ones that are less serious than that-distribution of cocaine base, violation of a protective order, another distribution of cocaine base, and then a third distribution of crack cocaine in 2004.... By my conservative count, I'm the 18th judge this defendant has been in front of presumably to say that he will change his ways.
Supp. ROA Vol. I at 25. Defendant then "ask[ed] the Court to be lenient ... with [his] sentence," explaining that he had been in drug rehabilitation for twenty-two months and realized he needed to change.
Three years after Defendant's sentencing, the U.S. Sentencing Commission amended the sentencing guidelines by reducing the offense level of many drug offenses by two levels. U.S. Sentencing Guidelines Manual app. C supp., amend. 782 (U.S. Sentencing Comm'n 2016). The Commission made this amendment, Amendment 782, retroactive.
Fifteen months later, Defendant filed another pro se motion for a reduced sentence under § 3582(c)(2). He again argued Amendment 782 rendered him eligible for such a reduction and that the court should grant a reduction because of the courses he had completed in prison. The only difference between his first and second motions was that, in his second motion, Defendant included more courses on his transcript and attached two new certificates acknowledging he had taken certain courses. The district court held that while Defendant was eligible for a reduced sentence under Amendment 782, this amendment did not mandate relief. The court then explained that his transcript of courses taken and certificates did not make a reduction appropriate. Thus, the district court denied the motion.
Still proceeding pro se, Defendant filed a notice of appeal to this Court, the subject of which is before us now. In his opening brief, Defendant argued the district court abused its discretion by not considering all the facts and circumstances of his case, including Defendant's clean disciplinary record while incarcerated. The Government responded that the district court lacked jurisdiction to consider Defendant's second motion for a reduced sentence under Amendment 782 or, in the alternative, the court properly denied the motion on the merits. This Court appointed counsel *1304 to represent Defendant in responding to the Government's arguments. In his supplemental briefing, Defendant argues the district court did indeed have jurisdiction. He also argues this Court should reverse the district court's denial or, in the alternative, remand for the district court to consider in the first instance whether Defendant's lack of disciplinary infractions warrants a reduced sentence.
II.
We must first determine whether the district court had jurisdiction under
In light of these severe consequences, the Supreme Court has attempted to "ward off profligate use of the term 'jurisdiction,' "
Sebelius v. Auburn Reg'l Med. Ctr.
,
Mindful of these precepts and the Supreme Court's caution against reckless use of the term "jurisdictional," we turn to
(c) Modification of an imposed term of imprisonment. -The court may not modify a term of imprisonment once it has been imposed except that-
(1) in any case-
...
(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by *1305 Rule 35 of the Federal Rules of Criminal Procedure ; and
(2) 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 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
The Government contends § 3582(c)(2) only confers jurisdiction on district courts to consider one motion to modify a sentence under each amendment. Since Defendant had previously filed a motion to modify his sentence under Amendment 782, the Government argues the district court did not have jurisdiction to consider his second motion to modify his sentence under this same amendment. 1 The Government reaches this conclusion based on the reasoning that " § 3582(c) creates a general rule of non-modification; § 3582(c)(2) is an exception to that rule which should be construed narrowly." Gov't Br. at 14. Since, according to the Government, Congress spoke in clear jurisdictional terms in § 3582(c), § 3582(c)(2) can only be understood as a grant of jurisdiction.
We start with the Government's contention that because Congress spoke in clear jurisdictional terms in § 3582(c), a potential court-made rule inferred from § 3582(c)(2) is jurisdictional as well. The Government uses
United States v. McGaughy
,
Applying the
clear statement
rule to this issue, we cannot agree with the Government that § 3582(c)(2) contains a jurisdictional bar to successive motions under the same guidelines amendment. Such a numerical restriction on the court's jurisdiction is wholly absent from the text of the statute and, as the Government acknowledges, may only be inferred from the text by employing tools of statutory construction.
See
Gov't Br. at 10-11. Construing § 3582(c)(2) narrowly, as the Government urges, could perhaps compel the conclusion that Congress only intended one motion per amendment. But it does not, as it must, "
plainly show
that Congress imbued a procedural bar
with jurisdictional consequences
."
See
Kwai Fun Wong
,
At oral argument, the Government contended this holding "would leave open forever the district court's ability to continually modify a sentence." This is not necessarily true. Our holding does not foreclose the possibility of a nonjurisdictional bar, such as a claim-processing rule, that forbids successive motions based on the same amendment. The Government, however, did not advance any argument that § 3582(c)(2) imposes a non-jurisdictional bar. We, therefore, do not address the issue.
III.
Having confirmed the district court had jurisdiction over Defendant's motion, we now consider the merits of Defendant's claim. Section 3582(c)(2) sets forth a two-step inquiry.
Dillon v. United States
,
In its order denying Defendant's motion for a reduced sentence, the district court referenced this Court's holding on Defendant's first motion for a reduced sentence, essentially incorporating the reasoning from that order and judgment. Therefore, the district court relied on Defendant's extensive criminal history, the need to deter further criminal conduct, and the fact that Defendant already received a shorter sentence by entering into a plea agreement.
See
Green
,
Defendant also argues, in his initial pro se brief, the district court did not consider his clean disciplinary record while in prison. But this fact was never presented to the district court. While we must construe Defendant's pro se pleadings liberally and hold Defendant to a less stringent standard than that of an attorney, "[t]his court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants."
Garrett v. Selby Connor Maddux & Janer
,
In the alternative, Defendant argues this Court should remand to the district court so that the district court may consider in the first instance Defendant's clean disciplinary record while in prison. In general, a remand for a party to produce additional evidence is inappropriate where the party had full opportunity to present the evidence in the first instance.
See
EEOC v. Westinghouse Elec. Corp.
,
Accordingly, the district court's order is AFFIRMED.
We emphasize the district court did not construe this second motion as a motion to reconsider. While the Government states in passing the motion might be construed as a motion to reconsider, the Government does not explicitly argue it should be construed as such. Therefore,
United States v. Randall
,
Fed. R. Crim. P. 35(a) provides: "Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error."
We question whether superseding Supreme Court authority has overruled
McGaughy
. In a recent case,
Hamer v. Neighborhood Hous. Servs. of Chi.
, --- U.S. ----,
Relevant § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available....
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Marconia Lynn GREEN, Defendant-Appellant.
- Cited By
- 37 cases
- Status
- Published