United States v. Clarke

499 F. App'x 579
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 26, 2012
DocketNo. 11-3757
StatusPublished
Cited by2 cases

This text of 499 F. App'x 579 (United States v. Clarke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Clarke, 499 F. App'x 579 (7th Cir. 2012).

Opinion

ORDER

Osmond Clarke was convicted in a crack-cocaine trafficking conspiracy in 1999 and sentenced to 211 months of imprisonment. The United States Sentencing Commission has since reduced the sentencing range for Clarke’s drug-related convictions and Clarke moved for a reduction in his sentence. The district court denied this motion, and we affirm.

I

In 1999, Clarke was convicted of three counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of carrying a firearm in violation of 18 U.S.C. § 924(c). The evidence at trial showed that Clarke had been the “enforcer” or “muscle” overseeing multiple crack-cocaine transactions, and he had even displayed his gun while overseeing the search of an undercover police officer. Although Clarke lacked a criminal history (category I), he had distributed approximately 195 grams of crack (at the time, offense level 34), which led to a sentencing range of [581]*581151-188 months in prison. Additionally, the gun conviction had a mandatory-minimum sentence of 60 months. Given these parameters, the district court sentenced Clarke to 151 months for the drug-related convictions and 60 months for the gun conviction for a consecutive total of 211 months (over 17 years). Because Clarke is a citizen of Jamaica who had entered the United States on a temporary visa in 1991, he will be deported after serving his time. Clarke appealed his conviction, and we affirmed. United States v. Clarke, 227 F.3d 874, 886 (7th Cir.2000).

In 2007, the United States Sentencing Commission reduced its recommended sentencing range for crack offenses. Under these reduced guidelines, Clarke would have received a sentencing range of 121— 151 months for his 1999 drug convictions. Although his 151-month sentence was still within the sentencing range, Clarke filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) based on the factors of 18 U.S.C. § 3553(a). The district court denied Clarke’s motion in a three-page order, and wrote that it was especially concerned about Clarke’s role as the “enforcer” in the crack transaction. “The danger [Clarke] posed,” the district court wrote, “plays a greater role in the court’s decision at this point than the specific drug quantity for which he is held accountable or the precise ratio between crack and powder cocaine for purposes of guideline calculations.” Clarke appealed, but we determined that the appeal would be “frivolous” and dismissed it. United States v. Clarke, 317 Fed.Appx. 564, 566 (7th Cir.2009).

Congress then passed the Fair Sentencing Act of 2010, which reduced the mandatory-minimum sentences for crack-cocaine convictions and also directed the Sentencing Commission to adjust its guidelines for crack-cocaine convictions. See Dorsey v. United States, — U.S. -, 132 S.Ct. 2321, 2325-26, 2329, 183 L.Ed.2d 250 (2012). Because the Sentencing Commission lowered its sentencing ranges for crack-cocaine convictions, Clarke filed a second § 3582(c)(2) motion for a sentence reduction on November 15, 2011. Clarke argued that his sentencing range should be 78-97 months under the new sentencing guidelines. This would be the correct sentencing range if Clarke were being re-sentenced under the new mandatory míni-mums, but because Clarke had been sentenced before Congress passed the Fair Sentencing Act, the new mandatory míni-mums do not apply to Clarke and his sentence can only be reduced to the old mandatory minimum of 120 months. See id. at 2329, 2335.

Before the government could respond to Clarke’s motion, the Deputy Chief U.S. Probation Officer filed a sealed memorandum with the district court. This memorandum recommended denying Clarke’s motion and included a proposed order. The district court entered this order.1 This order included a standard determination that the motion was denied because of the “nature and seriousness of the danger to any person or the community that may be posed by a reduction in sentence.” The court also included a statement that was specific to the facts of this case: “The defendant’s possession of a firearm and role as ‘enforcer’ poses a greater danger to the community. These factors played a greater role in the Court’s decision than the weight of the drugs.”

Clarke appealed. We issued an order requiring the parties to brief (1) whether this case is moot because Clarke has al[582]*582ready served his drug sentence; and (2) whether the district court failed to justify the now above-guidelines sentence.

II.

Both parties have stated that Clarke is eligible for a sentence reduction and have concluded that this case is not moot. See Olson v. Brown, 594 F.3d 577, 580 (7th Cir.2010) (“A case is moot when ‘the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980))). We review mootness issues de novo. Id. Clarke is currently serving a 211-month sentence for four convictions. He was sentenced for his crack-cocaine convictions at the same time he was sentenced for his gun conviction, and his imprisonment is treated as a “single, aggregate term” for administrative purposes. 18 U.S.C. § 3584(c). If he succeeds on the merits of his § 3582(c) motion, his sentence will be reduced and he will get out of prison earlier. Therefore, we agree with the parties that this issue is not moot and we now address the merits of Clarke’s arguments.

We review a district court’s decision to deny a sentence reduction under 18 U.S.C. § 3582(c)(2) for an abuse of discretion. United States v. Marion, 590 F.3d 475, 477 (7th Cir.2009). District courts may impose above-guideline sentences, but “[t]he greater the departure [from the sentencing range], the more searching our review will be.” United States v. Bradley, 675 F.3d 1021, 1025 (7th Cir.2012). However, § 3582(c)(2) requires “only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2690-91, 177 L.Ed.2d 271 (2010).

Clarke challenges the district court’s denial of his § 3582(c)(2) motion on four grounds. First, he claims that the district court’s order was too short. District courts must explain their rationale for denying a § 3582(c)(2) motion, but “the district court need not provide a detailed, written explanation analyzing every § 3553(a) factor.” Marion, 590 F.3d at 477.

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499 F. App'x 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clarke-ca7-2012.