United States v. Dodds

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 3, 2019
• Docket: 19-3077
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 3, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-3077 (D.C. No. 2:13-CR-20043-CM-1) CLIFFORD A. DODDS, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges. _________________________________

Clifford A. Dodds appeals from a district court order dismissing his motion for a

sentence reduction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Mr. Dodds pled guilty to drug and firearm offenses. In the plea agreement

entered into under Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Mr. Dodds should be sentenced to 210 months in prison. The Presentence

Investigation Report (“PSR”) determined that Mr. Dodds was a career offender under

United States Sentencing Guideline (“U.S.S.G.”) § 4B1.11 and that his sentencing

range should be 262 to 327 months. Nevertheless, the district court accepted the

Rule 11(c)(1)(C) plea agreement and sentenced Mr. Dodds to 210 months. He did

not file a direct appeal.

Mr. Dodds moved under 28 U.S.C. § 2255 for habeas relief, asserting his counsel

was ineffective because he failed to object to the PSR’s determination that his prior

convictions qualified him as a career offender under § 4B1.1. The district court denied

this claim. This court denied Mr. Dodds a certificate of appealability (“COA”) for

appellate review.

Mr. Dodds next moved under 18 U.S.C. § 3582(c)(2) to reduce his sentence based

on Amendment 782 to the Guidelines and Hughes v. United States, 138 S. Ct. 1765

(2018). The district court denied the motion, holding that neither Amendment 782 nor

Hughes affects sentences based on § 4B1.1, the career offender Guideline.

1 U.S.S.G. § 4B1.1(a) states: A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. 2 II. DISCUSSION

On appeal, Mr. Dodds argues he was not sentenced as a career offender and that

Hughes authorizes a sentence reduction under Amendment 782 because he entered into a

Rule 11(c)(1)(C) binding plea agreement. Aplt. Br. at 2.

A. Legal Background

Title 18 U.S.C. § 3582(c)(2) authorizes a sentence reduction for “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.”

Amendment 782 lowered the offense levels under U.S.S.G. § 2D1.1.2 It reduced

by two levels the base offense levels of crimes involving many of the controlled

substances listed in the Guidelines’ Drug Quantity Table in § 2D1.1(c). See U.S.S.G.

app. C, Amend. 782;3 United States v. Green, 886 F.3d 1300, 1302 (10th Cir. 2018). But

it did not lower the sentencing range for § 4B1.1 career offenders. See United States v.

Akers, 892 F.3d 432, 433 (D.C. Cir. 2018).

In Hughes, the Supreme Court said a defendant may seek § 3582(c)(2) relief on

the ground he entered into a plea agreement under Fed. R. Crim. P. 11(c)(1)(C). 138 S.

2 “This amendment revises the guidelines applicable to drug trafficking offenses by changing how the base offense levels in the Drug Quantity Table in § 2D1.1 . . . incorporate the statutory mandatory minimum penalties for such offenses.” U.S.S.G. app. C, Amend. 782, comment. (effective Nov. 1, 2014). 3 U.S.S.G. § 2D1.1(c) contains a Drug Quantity Table that sets the base offense level for possession of various drug quantities. 3 Ct. at 1778. But it also recognized that § 3582(c)(2) authorizes a sentence reduction

“based on a sentencing range that has subsequently been lowered by the Sentencing

Commission.” Id. at 1775 (quoting 18 U.S.C. § 3582(c)).

Hughes clarified that Rule 11(c)(1)(C) plea agreements are “based on” a

Guidelines range—and therefore eligible for § 3582(c)(2) relief—if the Guidelines range

“was part of the framework the district court relied on in imposing the sentence or

accepting the agreement.” Id. Because “the Sentencing Guidelines prohibit district courts

from accepting [Rule 11(c)(1)(C)] agreements without first evaluating . . . the defendant’s

Guidelines range,” the Court held that “in the usual case . . . the sentence to be imposed

pursuant to [a Rule 11(c)(1)(C)] agreement [is] ‘based on’ the defendant’s Guidelines

range.” Id. at 1776.

But if the record clearly indicates that an amended “Guidelines range was not a

relevant part of the analytic framework the judge used to determine the sentence or to

approve the agreement, . . . the defendant’s sentence was not based on that sentencing

range, and relief under § 3582(c)(2) is unavailable.” Id. (quotations and citations

omitted).

B. Analysis

Mr. Dodds argues he was not sentenced as a career offender because he was

sentenced to 210 months under a “[Rule] 11(c)(1)(C) binding plea.” Aplt. Br. at 2. Even

if this were so, he would be eligible for a sentence reduction under § 3582(c)(2) only if

his sentence were “based on a sentencing range that [was] subsequently . . . lowered by

4 the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Our § 3582(c)(2) analysis must

focus, therefore, on “the reasons for the sentence that the district court imposed, not the

reasons for the parties’ plea agreement.” Hughes, 138 S. Ct. at 1776. The only

sentencing range the court relied on at Mr. Dodds’s sentencing hearing was for a career

offender, and Amendment 782 did not lower the career offender Guideline.

The record shows the district court calculated the advisory Guidelines range of

262 to 327 months using the career offender Guideline, U.S.S.G. § 4B1.1. The court

ultimately sentenced Mr. Dodds to 210 months after determining that “a variance would

be appropriate in this case from the guideline range sentence.” ROA, Vol. 1 at 81. The

court never mentioned or applied § 2D1.1(c). In other words, the court looked to the

Guideline range for § 4B1.1 career offender status, which falls outside Amendment 782’s

coverage. This leaves Mr. Dodds with no basis to argue for a sentence reduction under

§ 3582(c)(2) or Amendment 782.

Although Hughes recognized that Rule 11(c)(1)(C) plea agreements are often

“based on” the defendant’s Guidelines range for the purposes of a § 3582(c) motion, see

138 S. Ct. at 1776, the Court also acknowledged the statutory requirement that, to qualify

for a sentence reduction, the defendant’s sentence also must be “based on a sentencing

range that has subsequently been lowered by the Sentencing Commission,” 18 U.S.C.

§ 3852(c)(2). That requirement was satisfied in Hughes because the district court

calculated the Guidelines sentencing range using the drug quantity Guidelines, which

were later revised under Amendment 782. See Sentencing Hearing Transcript, United

5 States v. Hughes, No. 4:13-CR-043-01-HLM-WEJ (N.D. Ga. Nov. 6, 2015), Dist. Ct.

Doc. 106 at 5-6; see also Hughes, 138 S. Ct. at 1778.

Here, neither the plea agreement, the change of plea transcript, nor the

sentencing transcript even mentioned the drug quantity Guidelines. The district court

calculated a Guidelines range using the § 4B1.1 career offender Guideline. It then

varied downward from that range to reach the sentence the parties agreed to in the

plea agreement. Amendment 782 does not affect § 4B1.1. Accordingly, Mr. Dodds’s

sentence was not “based on a sentencing range that [was] subsequently . . . lowered

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

III. CONCLUSION

The district court correctly determined it lacked authority under § 3582(c)(2)

to reduce Mr. Dodd’s sentence. We affirm the district court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge