United States v. Vann

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 6, 2023
• Docket: 22-2111
• Status: Unpublished

Opinion

Appellate Case: 22-2111 Document: 010110821834 Date Filed: 03/06/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 6, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 22-2111 v. (D.C. No. 1:12-CR-00966-PJK-SMV-1) (D. N.M.) RAYVELL VANN,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

Appellant Rayvell Vann is serving a sentence due to his conviction by a jury in

2013, of possessing PCP and codeine with the intent to distribute. Although the PCP

charge carried a threshold mandatory minimum sentence of five years, Mr. Vann’s

prior conviction for possessing a controlled substance raised that minimum term to

fifteen years. 21 U.S.C. § 841(b)(1)(B) (2012). The district court imposed the

enhanced sentence under § 841, incarcerating Mr. Vann for the fifteen-year

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-2111 Document: 010110821834 Date Filed: 03/06/2023 Page: 2

mandatory minimum on the PCP conviction. The court also imposed a twelve-month

sentence for the codeine charge to run concurrently with the fifteen-year PCP

sentence.

We affirmed Mr. Vann’s conviction on direct appeal, United States v. Vann,

776 F.3d 746 (10th Cir. 2015), and in 2018, we denied his petition for a certificate of

appealability for the denial of his initial motion under 28 U.S.C. § 2255, United

States v. Vann, 715 F. App’x 865, 866 (10th Cir. 2018). Undeterred, Mr. Vann has

filed nine motions that the district court has characterized as successive petitions

under § 2255. See 1R. at 62–64 (detailing the motions and dispositions). Mr. Vann

also filed four motions seeking compassionate release under 18 U.S.C.

§ 3582(c)(1)(A). See Supp.2R. at 52–56 (first); id. at 102–07 (second); 1R. at 43–57

(third); id. at 70–74 (fourth). In response to the deluge of meritless motions, the

district court entered an order prohibiting Mr. Vann “from filing any further pro se

filings with this court raising claims brought in his successive § 2255 motions and

arguments related to those claims that have already been decided by this court.”

Supp.2R. at 108.

In August 2022, Mr. Vann filed another motion for compassionate release,

which is the subject of this appeal. 1R. at 70–74. In that motion, Mr. Vann raised

several grounds for compassionate release, including his “extraordinary rehabilitation

and accomplishments while in prison,” id. at 71; his deteriorating health, id. at 73;

and a change in the law such that, if sentenced today, he would not receive a § 851

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enhancement increasing the mandatory minimum from five to fifteen years, id. at 71–

72. The district court denied the motion. Id. at 75.

The district court determined that Mr. Vann’s § 851 enhancement argument

was essentially a challenge to the validity of his sentence and should have been

brought under § 2255. Id. at 76. The court concluded, “this part of the motion

violates the court’s order imposing filing restrictions and will not be considered.” Id.

As to Mr. Vann’s other arguments, the court found they were properly considered

under § 3582(c)(1)(A), but it denied them on the merits. Id. at 76–77.

On appeal, Mr. Vann argues the district court erred by refusing to consider his

change in the law argument as a proper ground for compassionate release. Mr. Vann

is correct, and the Government concedes as much. We have held that changes in the

law that would have reduced the defendant’s sentence if they had been available at

his sentencing are properly considered as supporting a motion for compassionate

release under 18 U.S.C. § 3582(c)(1)(A), even when those changes are not made

retroactive. See United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021)

(reversing district court’s refusal to consider a nonretroactive reduction in the

statutory penalty as grounds for compassionate release); United States v. Maumau,

993 F.3d 821, 837 (10th Cir. 2021) (affirming district court’s reliance on

nonretroactive reduction in statutory penalty as grounds for compassionate release).

Nor can we conclude the district court’s error was harmless because the disparity in

mandatory minimum sentences may have influenced its exercise of its wide

discretion.

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Accordingly, we reverse and remand to the district court so that it can consider

the change in the law regarding the § 841 enhancement, along with other relevant

factors, in determining whether to grant Mr. Vann compassionate relief under 18

U.S.C. § 3582(c)(1)(A).

Entered for the Court

Carolyn B. McHugh Circuit Judge