United States v. Deshawn Travis Glover

Opinion

Case: 12-10580 Date Filed: 07/11/2012 Page: 1 of 12

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT _________________________

No. 12-10580 Non-Argument Calender __________________________

D.C. Docket No. 3:05-cr-00006-RV-2

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DESHAWN TRAVIS GLOVER,

Defendant - Appellant.

__________________________

Appeal from the United States District Court for the Northern District of Florida ___________________________

(July 11, 2012)

Before CARNES, HULL, and MARCUS, Circuit Judges.

CARNES, Circuit Judge: Case: 12-10580 Date Filed: 07/11/2012 Page: 2 of 12

Deshawn Glover, acting pro se, appeals the district court’s denial of his

motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive

amendment to the sentencing guidelines that lowered the base offense levels for

certain crack cocaine crimes. He contends that Amendment 759 to the sentencing

guidelines, U.S.S.G. App. C, amend. 759 (Nov. 2011), abrogates our holding in

United States v. Mills, 613 F.3d 1070 (11th Cir. 2010), and gives the district court

authority to reduce his sentence as a result of Amendment 750, which revised the

crack cocaine quantity tables in U.S.S.G. § 2D1.1 to conform to the Fair

Sentencing Act of 2010, see U.S.S.G. App. C, amend. 750 (Nov. 2011).

I.

In 2005, Glover pleaded guilty to one count of conspiracy to distribute and

possess with intent to distribute crack cocaine in violation of 21 U.S.C. §

841(a)(1), (b)(1)(A), and § 846, and one count of possession with intent to

distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A). The presentence investigation report recommended a base offense level

of 38 under United States Sentencing Guidelines § 2D1.1(c)(1) (Nov. 2004)

because the offense involved 2 kilograms of crack cocaine. The PSR

recommended a 3-level decrease for acceptance of responsibility under § 3E1.1,

which resulted in a total offense level of 35. It determined that Glover had a

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criminal history category of II. That total offense level, combined with that

criminal history category, normally leads to a guidelines range of 188 to 235

months in prison. Glover, however, was subject to a mandatory minimum life

sentence under 21 U.S.C. § 841(b)(1)(A) because he had at least two “prior

convictions for a felony drug offense.” Because the statutory mandatory minimum

sentence was greater than the otherwise applicable guidelines range, the statutory

mandatory minimum of life imprisonment became the guidelines range of life in

prison. See U.S.S.G. § 5G1.1(b). This is important. Glover did not have a

guidelines range of 188 to 235 months in prison. Instead, because of his prior

drug offenses, he had a guidelines range of life in prison.

That is the guidelines range the PSR recommended, and the district court

adopted that recommendation. The government filed a motion under U.S.S.G. §

5K1.1 stating that Glover had provided “substantial assistance” to the government.

Based on that motion, the district court departed downward from Glover’s

guidelines range of life in prison and sentenced him to 204 months in prison on

each count, with each sentence to run concurrently. See 18 U.S.C. § 3553(e)

(“Upon motion of the Government, the court shall have 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 . . . .”); U.S.S.G. § 5K1.1. Glover did

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not file a direct appeal.

In November 2011, the United States Sentencing Commission promulgated

Amendment 750 to the sentencing guidelines, which, among other things, lowered

the base offense level from 38 to 34 for crack cocaine offenses like Glover’s that

involve 2 kilograms of crack cocaine. U.S.S.G. App. C, amend. 750; see U.S.S.G.

§ 2D1.1(c)(3) (Nov. 2011). The Sentencing Commission also made that part of

Amendment 750 retroactive. See U.S.S.G. § 1B1.10(c).

Glover filed a pro se motion under 18 U.S.C. § 3582(c)(2) to reduce his

sentence, contending that under Amendment 750 his new total offense level is 31

(a base offense level of 34 with a 3-level decrease for acceptance of

responsibility), his criminal history category is still II, making his new guidelines

range 121 to 151 months in prison. The district court denied that motion after

“conclud[ing] that [Glover] is not eligible for a reduction under Amendment 750.”

Glover filed a motion for reconsideration, which the district court also denied.

This is Glover’s appeal.

II.

We turn first to the government’s contention that Glover’s appeal is

untimely. We review de novo whether an appeal should be dismissed as untimely.

See United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). A criminal

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defendant has 14 days from the date that an order or judgment is entered to file a

notice of appeal. Fed. R. App. P. 4(b)(1)(A). “Although a motion for

reconsideration of a district court order in a criminal action is not expressly

authorized by the Federal Rules of Criminal Procedure,” the filing of such a

motion within the 14-day period for filing a notice of appeal “tolls the time for

filing a notice of appeal and the time begins to run anew following disposition of

the motion.” United States v. Vicaria, 963 F.2d 1412, 1413–14 (11th Cir. 1992)

(citing United States v. Dieter, 429 U.S. 6, 8–9, 97 S.Ct. 18, 19–20 (1976)).

“Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed

on the date it is delivered to prison authorities for mailing.” Williams v. McNeil,

557 F.3d 1287, 1290 n.2 (11th Cir. 2009); see Fed. R. App. 4(c)(1) (“If an inmate

confined in an institution files a notice of appeal in either a civil or a criminal case,

the notice is timely if it is deposited in the institution’s internal mail system on or

before the last day for filing.”). Unless there is evidence to the contrary, like

prison logs or other records, we assume that a prisoner’s motion was delivered to

prison authorities on the day he signed it. See Washington v. United States, 243

F.3d 1299, 1301 (11th Cir. 2001).

The district court denied Glover’s § 3582(c)(2) motion on December 22,

2011, and Glover signed his motion for reconsideration 14 days later on January 5,

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2012, which tolled the period for filing a notice of appeal. See Vicaria, 963 F.2d

at 1413–14. The district court denied the motion for reconsideration on January

17, 2012, which restarted Glover’s 14-day period for filing a notice of appeal. See

id. Glover signed a notice of appeal 7 days later on January 24, 2012, so his

appeal is timely.

III.

Now for the merits issue. Glover contends that the combined force of

Amendments 750 and 759 to the sentencing guidelines makes him eligible for a

sentence reduction under 18 U.S.C. § 3582(c)(2). We review de novo a district

court’s conclusion that a defendant is not eligible for a sentence reduction under §

3582(c)(2). See Mills, 613 F.3d at 1074.

A district court may reduce the prison sentence 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.” 18 U.S.C. §

3582(c)(2) (emphasis added). Any reduction must be “consistent with applicable

policy statements issued by the Sentencing Commission.” Id. The Commission’s

policy statement on § 3582(c)(2) reductions explains that “[a] reduction in the

defendant’s term of imprisonment is not consistent with th[e] policy statement and

therefore is not authorized under 18 U.S.C. § 3582(c)(2) if . . . an amendment . . .

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does not have the effect of lowering the defendant’s applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2)(B) (Nov. 2011) (emphasis added). The commentary to

that policy statement further explains:

[A] reduction in the defendant’s term of imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent with th[e] policy statement if . . . an amendment . . . is applicable to a 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 (e.g., a statutory mandatory minimum term of imprisonment).

Id. § 1B1.10 cmt. n.1(A) (emphasis added). So, the statutory provision, the

Sentencing Commission’s corresponding policy statement, and the commentary to

that policy statement all make it clear that a court cannot use an amendment to

reduce a sentence in a particular case unless that amendment actually lowers the

guidelines range in that case. It is that simple.

And it makes sense. The purpose of § 3582(c)(2) is to give a defendant the

benefit of a retroactively applicable amendment to the guidelines. That provision

gives the defendant an opportunity to receive the same sentence he would have

received if the guidelines that applied at the time of his sentencing had been the

same as the guidelines that applied after the amendment. But he is not to receive a

lower sentence than he would have received if the amendment had been in effect

at the time of his sentencing. The goal is to treat a defendant sentenced before the

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amendment the same as those sentenced after the amendment. That is why an

amendment that alters the initial calculation of a guidelines range is not to be

applied in a case where the difference in the initial calculation would have made

no difference because a mandatory minimum would have trumped the initial

calculation and dictated the final guidelines range anyway.

In Mills, we held that “[t]he law is clear that a sentencing court lacks

jurisdiction to consider a § 3582(c)(2) motion, even when an amendment would

lower the defendant’s otherwise-applicable Guidelines sentencing range, when the

defendant was sentenced on the basis of a mandatory minimum.” 613 F.3d at

1078. That holding controls here. Glover was sentenced based on a guidelines

range of life in prison because he was subject to a statutory mandatory minimum

life sentence as a result of his prior felony drug convictions. Because his

guidelines range was based on a statutory mandatory minimum, Amendment 750

did not lower Glover’s guidelines range. Because Amendment 750 did not lower

his guidelines range, Glover is not eligible for a sentence reduction under 18

U.S.C. § 3582(c)(2). See Mills, 613 F.3d at 1078 (“[T]he provision governing the

Defendants’ sentences, and the provision from which the district courts granted

substantial assistance departures, was the range set by the statutory mandatory

minimum, not the Guidelines sentencing range for crack cocaine offenses that was

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subsequently changed by Amendment 706.”); id. at 1079 (“The statutory

mandatory minimums to which Defendants were subject meant that they were not

sentenced ‘based on a sentencing range’ subsequently lowered by Amendment

706.” (quoting 18 U.S.C. § 3582(c)(2)).

Glover contends that Amendment 759 to the guidelines abrogated our

holding in Mills and similar decisions and gave the district court authority to

lower his sentence because he provided substantial assistance to the government,

even though neither that amendment nor any other amendment lowered his actual

guidelines range. He is wrong. Amendment 759, which the Commission

promulgated after we decided Mills, amended U.S.S.G. § 1B1.10(b)(2). See

U.S.S.G. App. C, amend. 759. Section 1B1.10(b)(2)(A) provides that a district

court may not “reduce the defendant’s term of imprisonment under 18 U.S.C. §

3582(c)(2) . . . to a term that is less than the minimum of the amended guideline

range.” Before Amendment 759, an exception to that limitation allowed a district

court to lower a defendant’s prison sentence below the amended guidelines range

if the original sentence was, for any reason, below the original guidelines range.

See id. § 1B1.10(b)(2)(B) (Nov. 2010). After Amendment 759, however, a district

court may lower a defendant’s sentence below the amended guidelines range only

if the original sentence was below the original guidelines range because the

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defendant provided substantial assistance to the government. See U.S.S.G. §

1B1.10(b)(2)(B) (Nov. 2011) (“If the term of imprisonment imposed was less than

the term of imprisonment provided by the guideline range applicable to the

defendant at the time of sentencing pursuant to a government motion to reflect the

defendant’s substantial assistance to authorities, a reduction comparably less than

the amended guideline range determined under subdivision (1) of this subsection

may be appropriate.”).

Amendment 759 did nothing more than limit a district court’s authority to

reduce a defendant’s sentence below the amended guidelines range.1 Contrary to

1 The Sentencing Commission explained its reasoning behind the change:

The [pre-amendment] version of § 1B1.10 . . . dr[ew] a . . . distinction for cases in which the term of imprisonment was less than the minimum of the applicable guideline range, one rule for downward departures (stating that “a reduction comparably less than the amended guideline range . . . may be appropriate”) and another rule for variances (stating that “a further reduction generally would not be appropriate’). See § 1B1.10(b)(2)(B). . . . The Commission has determined that, in the specific context of §1B1.10, a single limitation [to sentence reductions below the amendment guidelines range] applicable to both departures and variances furthers the need to avoid unwarranted sentencing disparities and avoids litigation in individual cases. The limitation that prohibits a reduction below the amended guideline range in such cases promotes conformity with the amended guideline range and avoids undue complexity and litigation.

U.S.S.G. App. C, amend. 759, reason for amend. The Commission decided to allow the district court to reduce a defendant’s sentence below the amended guidelines range only if that defendant was originally sentenced below the original guidelines range based on substantial assistance, reasoning that “[t]he guidelines and the relevant statutes have long recognized that defendants who provide substantial assistance are differently situated than other defendants and should be considered for a sentence below a guideline or statutory minimum even when defendants who are otherwise similar (but did not provide substantial assistance) are subject to a guideline or

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Glover’s argument, the amendment does not permit a court to reduce a defendant’s

sentence based on a guidelines amendment that does not lower his guidelines

range. Instead, as we have discussed, a court may reduce a defendant’s sentence

under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to crack cocaine

base offense levels if and only if that retroactive amendment actually lowers the

defendant’s guidelines range. See 18 U.S.C. § 3582(c)(2) (“[I]n 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 . . . the court may reduce the term of imprisonment . . . .” (emphasis

added)); U.S.S.G. § 1B1.10 cmt. n.1(A) (“[A] reduction in the defendant’s term of

imprisonment is not authorized under 18 U.S.C. § 3582(c)(2) and is not consistent

with th[e] policy statement if . . . the amendment does not have the effect of

lowering the defendant’s applicable guidelines range because of the operation of

another guideline or statutory provision (e.g., a statutory mandatory minimum term

of imprisonment) (emphasis added)); Mills, 613 F.3d at 1078. Glover’s guidelines

range was—and still is—life in prison. Neither Amendment 750 nor 759 changes

statutory minimum.” Id. Glover argues that the Commission’s emphasis on substantial assistance in its reasoning undermines our holding in Mills, but it does not. Our holding in Mills controls this case because Glover’s guidelines range is the same after the amendment as it was before.

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that. And because neither amendment changes his guidelines range, Glover is not

entitled to resentencing under § 3582(c)(2).

AFFIRMED.