United States v. Kirtman

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 4, 2020
• Docket: 19-5026
• Status: Unpublished

Opinion

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

FOR THE TENTH CIRCUIT December 4, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-5026 (D.C. No. 4:97-CR-00053-JHP-2) DERRICK EUGENE KIRTMAN, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, MURPHY and PHILLIPS, Circuit Judges. _________________________________

Derrick Kirtman, appearing pro se, appeals the district court’s application of

the First Step Act of 2018 and Sentencing Guideline Amendment 782 to reduce his

sentence by 91 months, arguing that the district court should have reduced his

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

Kirtman also seeks to appeal a district court denying a motion he filed

challenging his 1997 conviction and 1998 sentence. We conclude the motion was an

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. unauthorized second or successive 28 U.S.C. § 2255 petition, construe his notice of

appeal as a request for a certificate of appealability (COA), deny that request, dismiss

his appeal of the order, and direct the district court to vacate the order because it

lacked subject matter jurisdiction to resolve the motion.

I. Background

In 1997, a jury convicted Kirtman of conspiracy to possess with intent to

distribute cocaine base (crack cocaine) and conspiracy to distribute cocaine base. We

described Kirtman’s leadership of a violent criminal enterprise in our affirmance of

his conviction and need not recount his transgressions here. See United States v.

Kirtman, No. 98-5039, 1999 WL 49126, at *1 (10th Cir. Feb. 4, 1999). But they

included “savagely beat[ing] a distributor who was suspected of having stolen money

and drugs, permanently disfiguring him.” Id.

Kirtman’s presentence investigation report (PSR) recommended that his base

offense level be set at 38 because the conspiracy involved distribution of at least 1.5

kilograms of crack cocaine and that his offense level be increased by eight levels for

using firearms and leading a large criminal organization that included minors. The

district court adopted the PSR, applied Kirtman’s total offense level of 46 and

criminal history category of I to the Sentencing Guidelines then in force, and

sentenced him to life imprisonment.

Over the years, Kirtman filed a series of motions under 18 U.S.C. § 3582(c)(2)

seeking to reduce his sentence based on retroactive amendments to the Sentencing

Guidelines. He based his first motion on Amendment 706, which reduced the base

2 offense level for most crack cocaine offenses by two levels. See U.S. Sentencing

Guidelines Manual (USSG) app. C vol. III at 226, 230 (U.S. Sentencing Comm’n

2018). The district court denied this motion because “[e]ven with the two-level

reduction to [his] base offense level under Amendment 706,” Kirtman still had “a

total offense level of 44, which require[d] life imprisonment.” United States v.

Kirtman (Kirtman 2009), 310 F. App’x 278, 280 (10th Cir. 2009). We affirmed. Id.

Kirtman based his second motion on Amendment 750, which reduced the base

offense level for most crack offenses by two more levels. See USSG app. C vol. III

at 391. The district court granted this motion, reducing his sentence to 456 months.

Kirtman later filed two motions seeking a further reduction in his sentence

under Amendment 782, which reduced the base offense level for most crack offenses

by another two levels. See USSG app. C supp. at 60–61. The district court exercised

its discretion to deny the motions because Kirtman’s “leadership role in a long term

and extensive illicit drug distribution operation” and “acts of extreme violence” made

him “an ongoing danger to the community.” R. at 61; see also id. at 79. We

dismissed Kirtman’s appeal from the district court’s first denial as frivolous, United

States v. Kirtman, 650 F. App’x 954, 956 (10th Cir. 2016), and Kirtman did not

appeal the district court’s second denial.

Then Congress passed the First Step Act of 2018, Pub. L. No. 115-391, 132

Stat. 5194. This law authorized courts to retroactively apply the Fair Sentencing Act

of 2010 “to offenders who committed offenses prior to the [Fair Sentencing Act’s]

effective date of August 3, 2010.” United States v. Mannie, 971 F.3d 1145, 1147

3 (10th Cir. 2020). The Fair Sentencing Act had, “among other things, increased the

quantity of crack cocaine required to trigger certain statutory penalties.” Id. Kirtman

asked the district court to apply these laws and “exercise its sentencing discretion by

resentencing [him] to a low-end guideline sentence.” R. at 110.

The district court granted Kirtman’s motion in part. It applied section 404(b)

of the First Step Act and lowered Kirtman’s “statutory penalty from ten years to life,

to five to forty years.” Id. at 116. It also found it “reasonable at this time to grant” a

reduction under Amendment 782 “based upon Congress’s decision to lower the

statutory maximum penalty in this case, [Kirtman’s] behavior while incarcerated over

the past twenty-one years, and the substantial guideline range produced even with the

guideline reduction under Amendment 782.” Id. It therefore lowered Kirtman’s base

offense level to 32, lowered his total offense level to 40, and concluded that his

resulting guidelines sentencing range was 292 to 365 months. But it found that the

“aggravating factors in this case” warranted “a sentence at the high end of this range”

and reduced Kirtman’s sentence by 91 months to 365 months. Id. Kirtman appeals.

Over the years, Kirtman also lodged many unsuccessful collateral attacks on

his conviction and sentence. See United States v. Kirtman, 33 F. App’x 401, 403

(10th Cir. 2002) (denying COA from denial of § 2255 petition); Kirtman v. United

States, No. 06-5034, Order (10th Cir. Apr. 3, 2006) (denying authorization to file

successive § 2255 petition); Kirtman 2009, 310 F. App’x at 281 (directing district

court to dismiss § 2255 claims); In re Kirtman, No. 09-5036, Order (10th Cir.

Apr. 13, 2009) (denying authorization to file successive § 2255 petition); In re

4 Kirtman, No. 10-5137, Order (10th Cir. Dec. 10, 2010) (dismissing successive § 2255

action); In re Kirtman, No. 11-5019, Order (10th Cir. Mar. 16, 2011) (denying

authorization to file successive § 2255 petition).

Kirtman continued this tradition in October 2018 by filing a “motion for relief

pursuant to Rule 60(d)(3) for fraud upon the court,” R. at 95 (boldface and

capitalization omitted), asserting that his conviction resulted from a conspiracy

among police officers and that he did not participate in the beating of the distributor,

id. at 95–97. The district court denied this motion. Kirtman seeks to appeal.

II. Discussion

A. Kirtman’s Sentence-Reduction Motion

Kirtman makes several arguments for reversal. We construe these arguments

as applying to both the district court’s application of the First Step Act to reduce his

statutory penalty and its application of Amendment 782 to reduce his guidelines

range and sentence via § 3582(c)(2).1 We review both actions for an abuse of

discretion. See Mannie, 971 F.3d at 1155; United States v. Green, 886 F.3d 1300,

1307 (10th Cir. 2018).

We first address Kirtman’s argument that the district court erred by failing to

conduct a plenary resentencing2 or hold a hearing. “[P]lenary resentencing is not

1 Because Kirtman appears pro se, we construe his filings liberally but do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). 2 Kirtman sought plenary resentencing in part for the district court to revisit its use of judge-found facts to increase his guidelines range in light of Apprendi v. New 5 appropriate under the First Step Act.” United States v. Brown, 974 F.3d 1137, 1144

(10th Cir. 2020). Section 3582(c)(2) likewise “authorize[s] only a limited adjustment

to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v.

United States, 560 U.S. 817, 826 (2010). And a movant under the First Step Act “is

not entitled to a hearing.” Mannie, 971 F.3d at 1157. As a result, “we review the

court’s decision to proceed without a hearing only for an abuse of discretion.” Id.

There is also “no requirement that district courts hold a hearing in a § 3582(c)(2)

sentence-reduction proceeding.” United States v. Chavez-Meza, 854 F.3d 655, 657

(10th Cir. 2017), aff’d, 138 S. Ct. 1959 (2018). We have thoroughly reviewed the

record and conclude that the district court did not abuse its discretion by proceeding

without a hearing.

We next reject Kirtman’s argument that the district court erred by relying on

facts from the PSR to justify a sentence at the high end of the reduced guidelines

range.3 See Mannie, 971 F.3d at 1157–58 (affirming district court’s reliance in part

Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). But because Kirtman’s sentence fell within the statutory range, the district court’s use of judge-found facts did not run afoul of the rules announced in Apprendi and Alleyne. See United States v. Zar, 790 F.3d 1036, 1055 (10th Cir. 2015) (“[T]he judicial fact finding the defendants complain of occurred in the context of determining their applicable sentencing ranges under the advisory sentencing Guidelines. The Apprendi/Alleyne rule does not apply in this context.”). 3 Kirtman asserts that “the district court refused and continues to refuse to resolve the factual disputes that were raised in [his] objection to his . . . PSR.” Aplt. Opening Br. at 5. But at Kirtman’s sentencing, the district court heard testimony on Kirtman’s objections to the PSR, “overrule[d] the objections,” and “adopt[ed] the presentence report.” Supp. R. vol. 3 at 30.

6 on “historical facts from [the defendant’s] initial sentencing” in declining to reduce

the defendant’s sentence under the First Step Act); United States v. Piper, 839 F.3d

1261, 1268 (10th Cir. 2016) (“[A] district court may look to its previous findings” in

a § 3582(c)(2) proceeding and “cannot make findings inconsistent with that of the

original sentencing court.” (internal quotation marks omitted)). And we reject

Kirtman’s related argument that the district court erred by enhancing his sentence

based on these facts because they were not alleged in the indictment. See United

States v. Glover, 413 F.3d 1206, 1208–10 (10th Cir. 2005) (finding “no merit” in the

argument that “the term of [the defendant’s] sentence should not have been increased

based on facts that were not alleged in the indictment”).

We likewise reject Kirtman’s argument that the district court erred by failing

to consider the factors contained in 18 U.S.C. § 3553(a) when setting his sentence

within the reduced range. The district court’s order stated that it “considered”

Kirtman’s motion and took “into account the policy statement set forth at USSG

§1B1.11 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that

they are applicable.” R. at 116. It then recited “Congress’s decision to lower the

statutory maximum penalty in this case, [Kirtman’s] behavior while incarcerated over

the past twenty-one years, and the substantial guideline range produced even with the

guideline reduction under Amendment 782, for which [Kirtman] is eligible.” Id.

And it concluded that the “aggravating factors in this case” warranted “a sentence at

the high end of [the] range.” Id. The district court satisfied its obligation to consider

7 the § 3553(a) factors.4 See Chavez-Meza v. United States, 138 S. Ct. 1959, 1965

(2018) (“[I]t may be sufficient . . . that the judge simply relied upon the record, while

making clear that he or she has considered the parties’ arguments and taken account

of the § 3553(a) factors, among others.”). And it did not abuse its discretion by

selecting a sentence at the high end of the range.

We finally address Kirtman’s contention that the district court erred by failing

to appoint counsel in connection with his First Step Act motion. But Kirtman had

counsel in connection with his first Amendment 782 motion—which the district court

denied at the time but effectively granted in the order under review—and the court

granted all the relief it could grant under section 404(b) of the First Step Act. Having

thoroughly examined the record, we conclude the district court did not abuse its

discretion in failing to appoint counsel to assist Kirtman on his successful

sentence-reduction motion.

We affirm the district court’s reduction of Kirtman’s sentence by 91 months.

B. Kirtman’s Fraud-on-the-Court Motion

Kirtman filed his fraud-on-the-court motion “pursuant to Federal Rule of Civil

Procedure 60(d)(3).” R. at 95. The motion rehashed Kirtman’s allegations from a

prior § 2255 petition that officers carried out a “conspiracy” “to secure [his]

4 “Section 3582(c)(2) requires the court to consider the factors in 18 U.S.C. § 3553(a).” Piper, 839 F.3d at 1267 (emphasis and internal quotation marks omitted). But the “§ 3553(a) factors . . . are . . . not required[] considerations when ruling on a [First Step Act] motion.” Mannie, 971 F.3d at 1158 n.18. 8 conviction.” Id. at 96. It also alleged his sentence resulted from “fraudulent factual

findings” in his PSR that the district court “was deceived into accepting.” Id. at 95.

Where a motion “invok[es] the district court’s inherent power to set aside a

judgment obtained through fraud on the court . . . under [Rule] 60(d)(3)” and “asserts

or reasserts claims of error in the prisoner’s conviction,” we treat it as a § 2255

petition. United States v. Baker, 718 F.3d 1204, 1206 (10th Cir. 2013). We therefore

treat Kirtman’s fraud-on-the-court motion as a § 2255 petition. In reaching this

conclusion, we give no weight to Kirtman’s suggestion that his “motion is not to be

construed as a §2255 motion,” R. at 95, because “‘[t]he bar against successive § 2255

petitions’ may not be avoided ‘by simply styling a petition under a different name,’”

Kirtman 2009, 310 F. App’x at 281 (quoting United States v. Torres, 282 F.3d 1241,

1246 (10th Cir. 2002)).

Because Kirtman had filed other § 2255 petitions, § 2255(h) required him to

obtain authorization from this court before filing in the district court. Kirtman 2009,

310 F. App’x at 281. This he did not do. The district court therefore did “‘not even

have jurisdiction to deny the relief sought in the pleading.’” Id. (quoting United

States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)).

Kirtman also had to obtain a COA from this court before proceeding with his

appeal. 28 U.S.C. § 2253(c)(1)(B); see also United States v. Springer, 875 F.3d 968,

972 (10th Cir. 2017). This he did not do either. We nonetheless treat his notice of

appeal as a request for a COA. See Springer, 875 F.3d at 980. We grant a COA if

“jurists of reason could disagree with the district court’s resolution of [the

9 petitioner’s] constitutional claims or . . . jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Buck v. Davis, 137 S. Ct.

759, 773 (2017) (internal quotation marks omitted).

The district court lacked subject matter jurisdiction to address Kirtman’s

motion, creating a “plain procedural bar,” Springer, 875 F.3d at 983 (internal

quotation marks omitted). “Under these circumstances, reasonable jurists could not

debate whether [Kirtman] could prevail on appeal when the district court lacked

jurisdiction to issue a final order.” Id. We deny Kirtman’s request for a COA.

III. Conclusion

We affirm the district court’s order reducing Kirtman’s sentence by 91 months.

We deny Kirtman’s request for a COA with respect to the district court’s order

denying his fraud-on-the-court motion, dismiss his appeal from that order, and direct

the district court to vacate the order. We grant Kirtman’s motion to proceed in forma

pauperis on appeal.

Entered for the Court

Gregory A. Phillips Circuit Judge