US v. Albert Hardy, Jr., No. 15-6966 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6966 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ALBERT EUGENE HARDY, JR., Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:07-cr-00010-MR-1) Argued: October 7, 2015 Before TRAXLER, Judges. Chief Decided: Judge, and KING and February 8, 2016 THACKER, Vacated and remanded by unpublished per curiam opinion. Judge Traxler wrote a dissenting opinion. Circuit Chief ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Ross Hall Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Jill Westmoreland Rose, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Albert Eugene Hardy, Jr., appeals from the June 2015 order entered in the Western District of North Carolina, granting him a sentence reduction from 168 to 140 months under 18 U.S.C. § 3582(c)(2). Hardy contends that the district court erred in failing to recognize that it could have reduced his sentence to as low as 98 months. The government counters that the court simply declined to award Hardy a larger reduction. As explained below, the record does not reveal that the court appreciated the scope of its authority, committed legal error. and it also shows that the court We therefore vacate and remand. I. On May 3, 2007, Hardy pleaded guilty to conspiracy to possess with intent to distribute cocaine base, in contravention of 21 U.S.C. § 846. Prior to the guilty plea, the United States Attorney filed a notice, pursuant to 21 U.S.C. § 851, advising that the government would utilize Hardy’s prior North Carolina drug conviction to seek a 240-month mandatory minimum sentence, pursuant to 21 U.S.C. § 841(b)(1)(A). The probation officer thereafter prepared the presentence report and recommended that Hardy be sentenced to 240 months. The PSR reached its mandatory minimum recommendation by starting with a base offense level of 32, predicated on a drug weight of 3 approximately 370 grams of cocaine base. The offense level was then adjusted two levels upward for reckless endangerment, less three levels for acceptance of responsibility, resulting in a final offense level of 31. Hardy’s criminal history Based on the final offense level and category of V, the Sentencing Guidelines advised a sentencing range of 168 to 210 months. The § 851 notice, however, triggered the mandatory minimum, making his Guidelines sentence 240 months. a statutorily maximum of required the minimum applicable See USSG § 5G1.1(b) (“Where sentence guideline is greater range, the than the statutorily required minimum sentence shall be the guideline sentence.”). 1 Prior to the January 30, 2008 sentencing hearing, the government filed a motion for a downward departure, pursuant to 18 U.S.C. § 3553(e), recognizing therein that Hardy had provided substantial assistance to the authorities. 2 The district court 1 The PSR relied on the 2007 edition of the Sentencing Guidelines. We otherwise refer to the 2014 edition, the Guidelines edition applicable to Hardy’s 18 U.S.C. § 3582(c)(2) motion. 2 Pursuant to § 3553(e), a prosecutor’s downward-departure motion rewards a cooperating defendant by conferring upon the sentencing court “the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.” The sentence must then be imposed “in accordance with the guidelines and policy statements issued by the Sentencing Commission.” Id.; see USSG § 5K1.1. 4 granted the government’s substantial-assistance imposed a sentence of 168 months. motion and The sentence thus fell at the low end of the otherwise applicable Guidelines range of 168 to 210 months, and it equaled 70% of the 240-month mandatory minimum. Seven motion in seeking years the a later, district sentence Guidelines. on In April court under reduction response, 23, 2015, 18 under the Hardy U.S.C. Amendment probation filed his § 3582(c)(2), 750 officer to the filed a memorandum with the court on April 27, 2015, advising that Hardy was ineligible for relief under Amendment 750. 3 officer further advised the court, however, The probation that Hardy eligible for a sentence reduction under Amendment 782. 4 was More specifically, the probation officer stated that Hardy’s original sentence statutory of 168 months minimum. The was equal probation to 70% officer of the then Hardy’s revised Guidelines range as 140 to 175 months. 240-month calculated Finally, 3 Amendment 750 (effective November 1, 2011) altered the weight ranges for cocaine base offenses in the Guidelines, but not enough to impact Hardy’s base offense level. On appeal, Hardy does not challenge the court’s denial of relief under Amendment 750. 4 Like Amendment 750, Amendment 782 (effective November 1, 2014) changed the applicable weight ranges for cocaine base offenses in the Guidelines. Unlike Amendment 750, however, Amendment 782 had the effect of lowering Hardy’s base offense level. 5 pursuant to probation months. the applicable officer Guidelines recommended a policy comparable See USSG § 1B1.10(b)(2)(B). statement, reduction to the 98 The recommended 98 months was 70% of 140 months, or 70% of the low end of Hardy’s revised Guidelines range. On June 1, See id. § 1B1.10(c) cmt. n.4(B). 2015, the government agreed that Hardy was eligible for a sentence reduction under Amendment 782, and also acknowledged that the district court could lower his sentence to the 98 months recommended by the probation officer. Moreover, the government expressly consented to such a reduction. Hardy responded the very next day, requesting that the court award him the unopposed sentence reduction to 98 months. By its one-page order (AO Form 247) of June 17, 2015, the district court granted Hardy’s § 3582(c)(2) motion reducing his sentence to 140, rather than 98 months. in part, See United States v. Hardy, No. 1:07-cr-00010 (W.D.N.C. June 17, 2015), ECF No. 72 (the “Order”). In so ruling, the court explained that Hardy’s “Original Guideline Range” was 240 months, and that his “Amended Guideline Range” was also 240 months. From the list of checkbox options contained in the Order, the court selected the option specifying Amendment 782. that the reduced sentence was based on The court left blank an option that reads, “The reduced sentence is within the amended guideline range.” It also did not mark another option that reads, “The previous term 6 of imprisonment imposed was less than the guideline range applicable to the defendant at the time of sentencing and the reduced sentence is comparably less than the amended guideline range.” Finally, the court checked the box designated “Other,” and explained: Defendant’s [original] sentence was enhanced pursuant to a § 851 notice. His cooperation was recognized b[y] allowing him a reduction to a sentence at the low end of the Guideline Range without consideration of the § 851 notice. Defendant’s reduced sentence herein is likewise at the low end of the revised Guideline Range after Amendment 782, without consideration of the § 851 notice. Hardy has filed a timely notice of appeal of the district court’s sentence reduction decision. We possess jurisdiction pursuant to 28 U.S.C. § 1291. II. Absent district an abuse court’s of discretion, sentence reduction we will decision not under disturb 18 a U.S.C. § 3582(c)(2). See United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013). A district court abuses its discretion when it commits an error of law. 754, 757 district (4th Cir. court’s See United States v. Rybicki, 96 F.3d 1996). An misapprehension error of of “the law may scope of include its a legal authority under § 3582(c)(2),” an issue that we review de novo. See Mann, 709 F.3d at 304. 7 III. Hardy contends that the district court erred in failing to recognize its authority under the Sentencing Commission’s policy statement and in “calculating the extent of a ‘comparably less’ reduction” below Appellant 8. failed to sentence his amended range. See Br. of Put succinctly, Hardy maintains that the court appreciate to Guidelines 98 that months Guidelines range). it (70% was of authorized the low end to of reduce his his amended The United States Attorney agrees that the court was authorized to reduce Hardy’s sentence to 98 months. The prosecution contends, however, that the court was aware of that authority and instead “explicitly declined to impose the shortest prison sentence it could.” See Br. of Appellee 14. Hardy’s sentence reduction from 168 to 140 months, according to the government, was neither erroneous nor an abuse of discretion. The Supreme Court’s decision in Dillon v. United States explained the “two-step approach” that a district court must undertake when resolving a § 3582(c)(2) motion. 817, 827 (2010). First, “the court See 560 U.S. [must] follow the [Sentencing] Commission’s instructions” in the policy statement spelled out prisoner’s extent of in Guidelines eligibility the for reduction section a 1B1.10 sentence authorized.” 8 “to determine modification Id. (emphasis and the the added). Second, the court must “consider any applicable [18 U.S.C.] § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case.” Consistent determined with that extent of the Commission’s Dillon, Hardy under Amendment 782. Id. was district eligible for a court initially sentence reduction The court failed, however, to specify the permissible policy 1B1.10(b)(2)(B). the reduction statement authorized in by Guidelines the section That policy statement authorizes a “[sentence] reduction comparably less than the amended guideline range” when the defendant was originally sentenced below a mandatory minimum based on his substantial assistance to the authorities. (emphasis added). See id. Because Hardy was originally sentenced to 168 months (70% of 240 months), a “comparably less” sentence under Amendment 782 would be 98 months, or 70% of the low end of his amended Guidelines (providing for Guidelines range. range). Dillon’s first percentage Put step. See id. reduction simply, The § 1B1.10(c) from the court’s low cmt. end court did failure to n.4(B) of amended not complete identify the permissible reduction to 98 months strongly suggests that it did not appreciate the scope of its authority. Smalls, 720 F.3d 193, 196 (4th 9 Cir. See United States v. 2013) (observing that “contrary indication[s]” may “rebut the . . . presumption that the district court considered all relevant factors in ruling on [a] § 3582(c)(2) motion”). In court pressing fully the contrary understood the — assertion scope of its that the district authority government emphasizes two aspects of the form Order. — the First, it points to the court’s explanation — accompanying the “Other” box — that Hardy’s reduced sentence was “likewise at the low end of the revised Guideline Range after Amendment 782.” government contends that the court must have Second, the recognized its authority to impose a lesser sentence because it failed to check the box indicating that it was granting a “comparably less” reduction. There are other aspects of the Order, however, that serve to undermine the government’s contention. Most importantly, the Order states contains “Original both an error Guideline “240 months” of Range” (the law: and it “Amended mandatory that Guideline statutory Hardy’s Range” minimum). are That statement runs contrary to the Guidelines’ explicit directive that “the amended guideline range shall be determined without regard to” the 240-month mandatory minimum. See USSG § 1B1.10(c); see also United States v. Williams, No. 15-7114, __ F.3d __, slip op. at 23 (4th Cir. Dec. 14, 2015) (“Although Guidelines section 5G1.1(b) would otherwise turn the 240-month 10 mandatory minimum into Williams’s revised ‘guideline sentence,’ the revisions made to Guidelines section 1B1.10 by Amendment 780 bar the sentencing court from calculating his amended range in that manner.”). In this case, Hardy’s amended Guidelines range was not 240 months, as the district court stated in the Order, but was 140 to 175 months, as determined circumstances, we are not scope of by the probation officer. 5 In district these court § 3582(c)(2). appreciated the persuaded its that authority the under Furthermore, the court committed legal error in ruling on Hardy’s sentence reduction motion. We are therefore constrained to vacate the Order and remand. IV. Pursuant remand for to such the foregoing, other and we further vacate the proceedings judgment as may and be appropriate. VACATED AND REMANDED 5 Prior to the issuance of our Williams decision a few weeks ago, there would have been a viable contention that the 240month mandatory minimum was the correct amended Guidelines range for a prisoner in Hardy’s position. In Williams, however, we squarely rejected that proposition. 11 TRAXLER, Chief Judge, dissenting: When the Government and the defendant make clear to the judge that they agree as to the sentencing options available to the judge and when the judge chooses a sentence that is unquestionably within this range of lawful options, I believe we can presume the judge understood what the lawyers said and I do not believe we can fault the sentencing judge for not explaining why he rejected the other choices presented to him. There is nothing in the record to rebut the presumption that the district court fully understood the scope of its sentencing authority when it ruled on Hardy’s motion under 18 U.S.C. § 3582(c)(2). The parties’ written submissions, as well as the probation officer’s report, advised the court that it had the authority to reduce Hardy’s sentence to 98 months or less. The district court’s order reflected that the court understood the extent to which it was authorized to reduce Hardy’s sentence but decided that the circumstances in this case merited less than the maximum reduction. The district court acted well within its discretion to reduce Hardy’s sentence to 140 months rather than 98 months. Where a Accordingly, I respectfully dissent. defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” a district court “may reduce the term of imprisonment” 12 after considering the § 3553(a) factors and the applicable policy statements from the Sentencing Commission. added). See 18 U.S.C. § 3582(c)(2) (emphasis “[T]he decision about whether to reduce a sentence is discretionary on the part of the district court. The court is not required to reduce a defendant’s sentence, even where the current sentence is above the amended guidelines range.” United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010). This court therefore reviews a district court’s decision to grant or deny a sentence reduction under § 3582(c)(2) for abuse of discretion. See United States v. Smalls, 720 F.3d 193, 195 (4th Cir. 2013). A court’s failure to understand the scope of its authority to reduce a sentence under § 3582(c)(2) amounts to an abuse of discretion. See United States v. Bernard, 708 F.3d 583, 597 (4th Cir. 2013). Although the district court granted Hardy’s motion and reduced his sentence from 168 months to 140 months, Hardy argues that the district court failed to understand that reduce his sentence even further to 98 months. it could To properly consider Hardy’s position, the correct place to start is with the presumption that the district judge correctly understood his sentencing factors authority and § 3582(c)(2). contrary and applicable properly policy considered statements the as See Smalls, 720 F.3d at 195-96. indication, we presume 13 a district court § 3553(c) required by “[A]bsent a deciding a § 3582(c)(2) motion has considered the 18 U.S.C. factors and other pertinent matters before it.” quotation marks omitted). § 3553(a) Id. (internal There is nothing in the record that, in my view, overcomes the presumption that the district court properly understood and considered the extent of his authority to reduce Hardy’s sentence. Section 1B1.10(b)(1) of the Sentencing Guidelines directs the district “determine court the when amended considering guideline a range sentence that reduction would have to been applicable to the defendant if the amendment(s) . . . had been in effect at the time the defendant was sentenced.” The Sentencing Guidelines generally prohibit a court from reducing the defendant’s term of imprisonment under § 3582(c)(2) “to a term that is less than the minimum of the amended guideline range.” original U.S.S.G. § 1B1.10(b)(2)(A). sentence substantial was assistance below the departure If, however, a defendant’s guideline under § range based 3553(e), on then a “a reduction comparably less than the amended guideline range . . . may be appropriate.” Id. at § 1B1.10(b)(2)(B) (emphasis added). In this case, Hardy’s original sentencing range would have been 168-210 months but for the fact that he was subject to a 240-month mandatory minimum sentence. the mandatory months. minimum, Hardy’s Nevertheless, in light of guideline sentence was 240 See U.S.S.G. § 5G1.1(b) (“Where a statutorily required 14 minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”). applies in this case. guideline range Thus, U.S.S.G. § 1B1.10(b)(2)(B) Hardy’s original sentence was below the “pursuant to a government motion to reflect [Hardy’s] substantial assistance to authorities,” meaning that the district court could, but was not required to, grant under § 3582(c)(2) “a reduction comparably less than the amended guideline range” of 140-175 months. U.S.S.G. § 1B1.10(c) makes clear that in a case such as this one, where the defendant is subject to a statutory minimum, the amended range is determined “without regard to the operation of § 5G1.1.” U.S.S.G. § 1B1.10(c). That is, the court must disregard the fact that the defendant was subject to a mandatory minimum when determining “the amended guideline range that would have been applicable to the defendant if the amendment(s) . . . had been in effect at the time the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1). The parties agree that in reducing Hardy’s sentence under § 3582(c)(2), the district court, had it so desired, could have gone as low as 98 months because the original 168-month sentence was 30% below the guideline range of 240 months—the guideline range being equal to the mandatory minimum under § 5G1.1. A “comparable” 30% reduction from the bottom of the amended range 15 of 140 months would have resulted in a sentence of 98 months, assuming the district court reduction to be appropriate. in its discretion found however, granted a This point was the subject of the memoranda submitted to the court by the parties. court, such Hardy a downward The district departure under § 3553(e) and sentenced him to 168 months, the bottom of the otherwise applicable sentencing range. There is nothing in the district court’s ruling to overcome the presumption that the court understood how to properly apply U.S.S.G. § 1B1.10(b) & (c), that the amended guideline range was 140-175 months, and that it could reduce Hardy’s sentence below the amended range to 98 months. The court was fully briefed by the parties and the probation officer regarding the option of reducing Hardy’s sentence to 98 months. The district court’s order reflected its clear understanding of the amended guideline range as determined by application of § 1B1.10(c): “Defendant’s reduced sentence [of 140 months] . . . is likewise at the low end of the revised Guideline Range after Amendment 782, without consideration of the § 851 notice.” J.A. 89. And, since the district court clearly understood that the 140-month sentence that it was imposing was at the bottom of the amended range, the court understood it was not imposing a “reduced sentence . . . comparably less than the amended guideline range” because it did not select that checkbox option. 16 The fact that the one-page form order does not explicitly state that “the court is aware that a 98-month sentence is permissible” does not persuade me that the district court was ignorant of this point on which it had just been briefed. “[I]n the absence of evidence a court neglected to consider relevant factors, the court does not err in failing to provide a full explanation for its § 3582(c)(2) decision.” Smalls, 720 F.3d at 196. the The district court chose amended range, but not below it. to go to bottom of the There is nothing to suggest that this was not a conscious and intentional choice or that we ought to abandon the presumption that the district court was aware of and considered all of the sentencing options available to it. 17

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