US v. Lewis Alston
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 5:09-cr-00095-FL-1. [999152324]. [11-5204]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5204
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEWIS ALSTON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:09-cr-00095-FL-1)
Argued:
May 16, 2013
Decided:
July 17, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Wilkinson and Senior Judge Hamilton joined.
ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.
Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
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Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
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AGEE, Circuit Judge:
The United States District Court for the Eastern District
of North Carolina originally sentenced Lewis Alston (“Alston”)
to 150 months’ imprisonment, but that sentence was vacated on
appeal
and
remanded
for
resentencing.
See
United
States
v.
Alston (Alston I), 447 F. App’x 498, 500 (4th Cir. 2011). On
remand,
the
district
court
sentenced
Alston
to
an
above-
Guidelines sentence of 120 months’ imprisonment from which he
now appeals. For the reasons set forth below, we affirm the
judgment of the district court. 1
I
Alston pleaded guilty to possession of five grams or more
of
crack
cocaine
in
violation
of
21
U.S.C.
§ 841
and
to
maintaining a dwelling for the use of cocaine in violation of 21
U.S.C. § 856. The government filed a notice of its intent to
seek an enhanced penalty pursuant to 21 U.S.C. §§ 841(b)(1)(B)
and 851, contending that Alston had prior convictions for felony
drug offenses punishable by imprisonment for more than one year
and
subjecting
Alston
to
Alston raises
conviction on appeal.
no
1
a
statutory
issue
3
minimum
concerning
of
his
10
years’
underlying
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imprisonment.
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At
Alston’s
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original
sentencing
hearing,
the
district court concluded that Alston’s total offense level was
27 and his criminal history category was V, based upon his prior
convictions for felony drug offenses punishable by imprisonment
for
more
district
than
one
court
year. 2
determined
Based
that
upon
these
Alston’s
calculations,
advisory
range
the
of
imprisonment under the United States Sentencing Guidelines (the
“Guidelines”) was 120 to 150 months. 3
Once
the
district
court
determined
Alston’s
Guidelines
range, the government moved for an upward departure pursuant to
section 4A1.3 of the Guidelines, arguing that the range did not
properly
court
account
denied
the
for
Alston’s
criminal
government’s
upward
history.
departure
The
district
motion
and
sentenced Alston to 150 months’ imprisonment.
2
Under our then-existing precedent in United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005), the district court
treated all of Alston’s prior convictions for which the maximum
aggravated sentence for the worst offender under the applicable
statute was greater than one year as felony drug offenses. This
determination was made without regard to whether Alston himself
could have been sentenced to more than one year of imprisonment
for those convictions.
3
Alston was found accountable for 22.28 grams of crack
cocaine.
4
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Alston appealed, and the government did not cross-appeal.
While Alston’s appeal was pending, this Court decided United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which
expressly overruled Harp. Simmons, 649 F.3d at 241 (concluding
that “Harp no longer remains good law.”). As Alston had been
sentenced
in
accordance
with
sentence,
and
remand[ed]
for
Harp,
we
“vacate[d
resentencing
in
Alston’s]
accordance
with
Simmons.” See Alston I, 447 F. App’x at 500.
On
remand,
the
probation
officer
recalculated
Alston’s
total offense level as 23 and his criminal history category as
IV,
resulting
in
a
Guidelines
range
of
70
to
87
months’
imprisonment. Alston requested a sentence of 70 months, the low
end of the Guidelines range. The government moved for an upward
departure
pursuant
to
section 4A1.3
of
the
Guidelines,
again
arguing that Alston’s suggested range of imprisonment did not
properly account for his criminal history. Alston objected to
the government’s upward departure motion, contending that the
district
court
had
already
ruled
on
the
issue
at
his
prior
sentencing hearing and that the government chose not to appeal
that ruling. The district court granted the government’s upward
departure motion over Alston’s objection and determined that “a
sentence within the range of 100 to 125 months is one that will
accomplish
the
purposes
of
the
5
sentencing.”
J.A.
89.
After
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balancing the factors listed in § 3553(a), the district court
sentenced Alston to 120 months’ imprisonment and five years’
supervised
release
on
Count
One
and
two
years’
supervised
release on Count Two, to run concurrently. The district court
stated that it would impose the same sentence “regardless of the
advice of the [G]uidelines.” J.A. 91.
At
the
conclusion
of
Alston’s
sentencing
hearing,
he
requested that the court retroactively apply the Fair Sentencing
Act
(“FSA”).
Congress
had
enacted
the
FSA
after
Alston
was
convicted but before his resentencing. The district court noted
that it did “not find the Fair Sentencing Act retroactive under
these
circumstances”
but
that
Alston’s
sentence
was
“quite
obviously still within [the] range” dictated by the FSA. J.A.
92. The parties agreed that, under the FSA, Alston would have
faced a maximum of 20 years’ imprisonment, whereas prior to its
enactment, Alston would have been subject to a maximum of 40
years’ imprisonment.
Alston
timely
appealed.
We
have
jurisdiction
under
28
U.S.C. § 1291.
II
We review a district court’s interpretation of the mandate
rule de novo. United States v. Susi, 674 F.3d 278, 283 (4th Cir.
6
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2012). We also review questions of law de novo. United States v.
Gomez,
690
district
F.3d
194,
court’s
197
(4th
sentencing
Cir.
2012).
decisions
And
for
we
an
review
abuse
a
of
discretion. United States v. King, 673 F.3d 274, 283 (4th Cir.
2012).
III
Alston
raises
three
issues
on
appeal. 4
First,
Alston
contends that the district court improperly ignored this Court’s
mandate
in
departure
Alston
motion
I
on
when
it
remand.
granted
the
government’s
Second,
Alston
argues
upward
that
the
district court improperly declined to retroactively apply the
4
Alston makes a fourth argument that is not properly before
the Court. He argues that the district court erred in imposing a
five-year term of supervised release without specifically
discussing and departing from Guidelines section 5D1.2, which
suggested a supervised release term of three years. Alston
raises this argument for the first time in his reply brief and
did not raise it before the district court. His argument is
therefore waived. See Cavallo v. Star Enter., 100 F.3d 1150,
1152 n.2 (4th Cir. 1996) (holding that “an issue first argued in
a reply brief is not properly before a court of appeals”).
Moreover, Alston’s term of supervised release is within the
bounds of § 841(b)(1)(C), which provides for a minimum of three
years’ supervised release and “does not cap the period of
supervised release that a district court may impose.” United
States v. Pratt, 239 F.3d 640, 647 (4th Cir. 2001).
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FSA. Third, Alston argues that his sentence is substantively
unreasonable.
A
The “mandate rule” is a specific application of the law of
the
case
doctrine
that
prohibits
a
lower
court
from
reconsidering on remand issues laid to rest by a mandate of the
higher
court.
Susi,
674
F.3d
at
283.
The
mandate
rule
“forecloses litigation of issues decided by the district court
but foregone on appeal or otherwise waived.” United States v.
Bell, 5 F.3d 64, 66 (4th Cir. 1993). However, “to the extent
that the mandate of the appellate court instructs or permits
reconsideration
of
sentencing
issues
on
remand,
the
district
court may consider the issue de novo, entertaining any relevant
evidence on that issue that it could have heard at the first
hearing.” Id. at 67 (quotation marks omitted).
Alston
considered
upward
argues
and
that
denied
departure
because
the
motion
the
in
government’s
his
district
initial
initial
court
had
section 4A1.3
sentencing
and
the
government did not appeal that ruling, the government “could not
. . . ask the district court to resuscitate the departure issue
upon
remand.”
Opening
Br.
14.
The
Fourth
Circuit’s
mandate,
Alston asserts, limited the district court to considering on
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remand
only
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its
application
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of
§ 851(b)(1)(B)
in
light
of
Simmons.
Alston correctly points out that a district court on remand
“may not reconsider issues the mandate laid to rest.” Susi, 674
F.3d
at
283.
defendant’s
Still,
‘entire
when
“an
sentence
appellate
and
court
remand[s]
sets
for
a
aside
de
a
novo
resentencing’ pursuant to a general mandate, the district court
on resentencing is not bound by its prior consideration of the
case.” Id. at 284 (quoting Pepper v. United States, 131 S. Ct.
1229, 1250–51 (2011)). Rather,
[b]ecause a district court’s original sentencing
intent may be undermined by altering one portion of
the calculus, an appellate court when reversing one
part of a defendant’s sentence may vacate the entire
sentence . . . so that, on remand, the trial court can
reconfigure the sentencing plan . . . to satisfy the
sentencing factors in 18 U.S.C. § 3553(a).
Pepper, 131 S. Ct. at 1250–51 (quotation marks and citations
omitted).
In this case, our prior panel “vacate[d Alston’s] sentence”
in toto and remanded for a complete resentencing “in accordance
with Simmons,” Alston I, 447 F. App’x at 500, leaving open the
district
court’s
ability
to
“reconfigure
the
sentencing
plan
. . . to satisfy the sentencing factors in 18 U.S.C. § 3553(a),”
Pepper, 131 S. Ct. at 1251. Nothing in our mandate altered the
district court’s duty to “make an individualized assessment [of
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Alston] based on the facts presented.” Gall v. United States,
552 U.S. 38, 50 (2007). Indeed, as the district court expressed
on remand, it denied the government’s upward departure motion at
Alston’s
original
sentencing
original
Guidelines
hearing
sentence
range
only
of
because
up
to
150
Alston’s
months
“accomplished the purposes of the sentencing.” J.A. 83.
On
remand,
the
district
court
faced
a
much
altered
Guidelines range landscape, but no diminution in its duty to
apply the § 3553(a) factors to determine Alston’s appropriate
sentence. Prohibiting the district court from taking a holistic
approach to Alston’s resentencing would not only undermine the
district court’s original sentencing intent, it would prevent
the
district
court
from
making
the
very
individualized
assessment of Alston required by § 3553(a). See Gall, 552 U.S.
at 50. Nothing in the Alston I mandate dealt with the district
court’s ability to consider a section 4A1.3 departure. Thus,
because we vacated Alston’s entire sentence and remanded for de
novo resentencing, the district court correctly determined that
the
mandate
rule
did
not
preclude
it
from
considering
government’s renewed section 4A1.3 upward departure motion.
10
the
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B
Alston argues that his suggested term of imprisonment under
the Guidelines would have been different had the district court
retroactively
district
could
applied
court’s
have
the
FSA,
Guidelines
affected
which
would
calculation
the
district
and
have
changed
which,
court’s
in
the
turn,
§ 3553(a)
determination.
The FSA applies retroactively. Dorsey v. United States, 132
S. Ct. 2321, 2331 (2012). Thus, the district court erred when it
declined to retroactively apply the FSA to Alston on remand. The
government concedes this error, but argues that resentencing is
unwarranted because the error was harmless. See United States v.
Hargrove, 701 F.3d 156, 161–62 (4th Cir. 2012). We agree. 5
Alston argues that the district court “misunderstood the
nature of Mr. Alston’s offense” because, by declining to apply
the
FSA,
it
believed
that
“Congress
intended
to
punish
[Alston’s] offense much more severely than it actually did.”
Opening Br. 21. As we recently reaffirmed in United States v.
Hargrove, 701 F.3d 156 (4th Cir. 2012), however, we will not
5
The parties agree that Alston’s sentence of 120 months’
imprisonment is within the statutory range dictated by the FSA,
which establishes a statutory maximum sentence of 20 years’
imprisonment.
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vacate a sentence when resentencing would be “‘little more than
an empty formality, [and] the sentence the district court would
impose on remand is a foregone conclusion.’” 701 F.3d at 162 n.3
(quoting United States v. Revels, 455 F.3d 448, 452 (4th Cir.
2006)).
The district court made clear at Alston’s resentencing that
it
would
have
imposed
the
same
sentence
“regardless
of
the
advice of the [G]uidelines,” J.A. 91, and specifically noted
that his sentence was “quite obviously still within [the] range”
dictated by the FSA. J.A. 92. The district court thus expressly
ruled that the lower statutory maximum of the FSA would have had
no effect on its § 3553(a) determination.
While the district court erred in concluding that the FSA
did
not
apply
retroactively,
that
error
was
harmless
as
demonstrated by the district court’s statements at sentencing.
C
Alston finally argues that his sentence is substantively
unreasonable because the district court increased his sentence
to
ensure
that
Alston
had
the
opportunity
to
receive
drug
treatment, mental health treatment, and vocational training in
prison.
Alston
correctly
notes
that
a
district
court
cannot
“impose[] or lengthen[] a prison term in order to promote a
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criminal
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defendant’s
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rehabilitation.”
Tapia
v.
United
States,
131 S. Ct. 2382, 2385 (2011). Yet a review of the sentencing
transcript reveals that the district court did not, in fact,
base
the
length
of
Alston’s
sentence
on
his
rehabilitative
needs.
After determining the appropriate sentence under § 3553(a),
the district court stated,
This is a sentence sufficient, but not greater than
necessary. This is a sentence that will promote
respect for the law; that will discourage this type of
conduct. But very importantly, it protects the public
from you and . . . provide[s] the needed treatment of
care in the most effective manner possible.
J.A. 89–90. In contrast, in Tapia, the district court expressly
stated
that
provide
its
needed
sentence
“ha[d]
correctional
to
be
treatment”
sufficient
and
openly
.
.
.
to
imposed
a
sentence to ensure that the defendant was “in long enough” to
participate in a certain drug rehabilitation program. 131 S. Ct.
at 2392–93.
The
Alston’s
district
prison
rehabilitation
district
court
court
sentence
program
simply
here
to
did
not
correspond
provided
to
restated
choose
with
the
the
prisoners.
the
length
length
of
of
a
Rather,
the
listed
in
factors
§ 3553(a)(2) and reflected how each of those factors was met by
Alston’s
120-month
sentence.
Section
requires district courts to consider
13
3553(a)(2)
expressly
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the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or
vocational
training,
medical
care,
or
other
correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2) (emphasis added).
Clearly,
considering
Tapia
the
does
not
prevent
§ 3553(a)(2)(D)
factor
a
district
in
the
court
course
from
of
a
sentencing proceeding. Rather, Tapia stands for the proposition
that a court cannot impose or lengthen a sentence to ensure that
a defendant can complete a training or rehabilitation program.
See Tapia, 131 S. Ct. at 2392. Accordingly, the district court
committed
would
no
provide
effective
error
in
him
with
manner,”
as
considering
whether
“correctional
expressly
Alston’s
treatment
required
by
in
sentence
the
18
most
U.S.C.
§ 3553(a)(2)(D).
IV
For all the foregoing reasons, the judgment of the district
court is
AFFIRMED.
14
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