United States v. Washington, No. 13-3136 (10th Cir. 2014)Annotate this Case
Following a jury trial, defendant Tony Washington was convicted on two drug charges: (1) conspiracy to distribute crack and marijuana; and (2) conspiracy to maintain a residence for the purpose of distributing those same drugs. As part of determining Washington's advisory sentencing range under the 2008 version of the United States Sentencing Guidelines, the district court calculated Washington's base offense level. On direct appeal, Washington contended the district court attributed too large a quantity of crack to him, "challeng[ing]" two components of the district court's calculations: (1) the conversion of $2600 into 85.05 grams of cocaine base; and (2) the estimation he and his coconspirators purchased 680.4 grams of cocaine base with their pooled money. The Tenth Circuit specifically declined to resolve Washington's challenge to the conversion of $2600, noting: "Washington . . . recognizes that only the challenge to the 680.4 grams can lower the drug quantity below 500 grams and thereby reduce his base offense level under U.S.S.G. 2D1.1(c)(4). We therefore confine our analysis to the 680.4 grams." The Court then denied Washington's appeal, concluding the quantity of 680.4 grams was supported by sufficient evidence. In August 2011, Washington filed a pro se motion for sentence reduction pursuant to section 3582(c)(2) and Amendment 750 of the Sentencing Guidelines. Instead of challenging the correctness of his base offense level, he made the legally erroneous argument that Amendment 750 allowed the district court to reconsider its previous decision to give him a sentence above the bottom of the advisory Guidelines range. The district court denied his motion, concluding that because Amendment 750 did not reduce Washington's offense level, and it was without power to alter his sentence. In May 2013, Washington, acting through appointed counsel, filed another 3582 motion. Although he styled his pleading as a "Motion for Sentence Reduction Under 18 U.S.C. 3582(c)," he did not assert the district court had the power to modify his sentence. The district court denied Washington's motion. Washington then appealed to the Tenth Circuit, asking the Court to take up and decide the issue it declined to resolve on direct appeal. The government argued the Tenth Circuit lacked statutory jurisdiction because Washington's appeal did not fit within the four categories of allowed sentencing appeals under 18 U.S.C. 3742(a). The question presented to the Court on appeal was thus a narrow legal question: Could Washington use the sentence-modification procedure set out in 18 U.S.C. 3582(c)(2) to have the court decide an issue left unresolved on direct appeal? "The Supreme Court's decision in Dillon v. United States, 130 S. Ct. 2683 (2010), coupled with the policy statements accompanying U.S.S.G. 1B1.10, compel[ed] a negative answer."