US v. Mitchell Small

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:96-cr-00131-RBS-2. [999133064]. [12-6021]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6021

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MITCHELL SMALLS, a/k/a Gary Richardson, a/k/a Cebo, a/k/a
Kilo,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Rebecca Beach Smith, Chief
District Judge. (2:96-cr-00131-RBS-2)

Argued:

May 17, 2013

Decided:

June 19, 2013

Before MOTZ and GREGORY, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Gregory and Judge Hollander joined.

ARGUED: Dylan W. Greenwood, WAKE FOREST UNIVERSITY
LAW, Winston-Salem, North Carolina, for Appellant.
Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Virginia, for Appellee.
ON BRIEF: John J. Korzen,
John W. Forneris, Third-Year Student, WAKE FOREST
SCHOOL OF LAW, Winston-Salem, North Carolina, for

SCHOOL OF
Richard
Richmond,
Director,
UNIVERSITY
Appellant.

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Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:
Mitchell
granting,

Smalls

only

in

appeals

part,

from

his

the

motion

under 18 U.S.C. § 3582(c)(2).

district

for

a

court’s

sentence

order

reduction

He contends the court erred in

failing to provide an individualized explanation in support of
its chosen sentence.

For the reasons that follow, we affirm.

I.
In September 1996, a jury found Smalls guilty of conspiracy
to

import

cocaine.

At

sentencing,

the

district

court

held

Smalls accountable for quantities of cocaine base and powder
cocaine, producing a guideline range of imprisonment for 360
months to life.

The court sentenced Smalls to life in prison.

In February 2008, Smalls filed a motion for reduction of
sentence pursuant to 18 U.S.C. § 3582(c)(2).

He based this

motion on the 2007 crack cocaine amendments to the Sentencing
Guidelines,
months.

which

The

reduced

district

his

court

guideline
granted

range

the

to

motion

324

to

405

and

reduced

Smalls’ sentence from life imprisonment to 405 months.
In November 2011, Smalls, pro se, filed a second 18 U.S.C.
§ 3582(c)(2) motion for reduction of sentence.
motion
reduced

on

Amendment

his

750

guideline

to

range

the
to

Sentencing
262

to

327

He based this

Guidelines,
months.

which
In

the

motion, Smalls argued that the district court should not have
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included cocaine base when calculating his drug quantities at
the initial sentencing and requested a sentence of 210 months.
He did not discuss or even mention any other factors that might
counsel in favor of a sentence reduction in his case.
After receiving Smalls’ motion, the district court ordered
the Government to file a response addressing whether it opposed
the

motion.

defendant
response.”

The

shall

be

court
filed

further
within

stated
thirty

that
(30)

“any

reply

days

of

by

said

The Government filed a timely response in which it

agreed that Smalls was eligible for a sentence reduction but
requested that he again receive the maximum sentence under the
applicable guideline range.

Two days later, without waiting for

Smalls’ reply, the district court considered Smalls’ motion and
reduced his sentence to 327 months, the maximum sentence in the
amended guideline range.
In ruling on Smalls’ motion, the district court used a form
document.

By way of explanation for the court’s chosen sentence

the form indicates only:

“In granting this motion, the court

has considered the factors set forth in 18 U.S.C. § 3553(a).”
Smalls appeals, arguing that the district court erred in failing
to

provide

an

individualized

explanation

sentence imposed.

4

in

support

of

the

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II.
A district court may reduce a sentence “in 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.”

18 U.S.C. § 3582(c)(2).

Whether to

reduce a sentence and to what extent is a matter within the
district court’s discretion.

See United States v. Legree, 205

F.3d 724, 727 (4th Cir. 2000).

In exercising this discretion,

however, the court must consider the factors set forth in 18
U.S.C. § 3553(a) “to the extent that they are applicable.”

See

18

the

U.S.C.

defendant’s

§

3582(c)(2).

The

post-sentencing

court

may

conduct.

also

See

consider

U.S.

Sentencing

Guidelines Manual § 1B1.10 cmt. 1(B)(iii).
We

review

a

district

court's

grant

or

§ 3582(c)(2) motion for abuse of discretion.
Munn, 595 F.3d 183, 186 (4th Cir. 2010).

denial

of

a

United States v.

But the question of

whether a court ruling on a § 3582(c)(2) motion must provide an
individualized explanation is one of law that we consider de
novo.

See Legree, 205 F.3d at 727-28.

In Legree, we held that, “absent a contrary indication,” we
presume

a

district

court

deciding

a

§

3582(c)(2)

motion

has

considered the 18 U.S.C. § 3553(a) factors and other pertinent
matters

before

it.

Id.

at

728-29

(internal

quotation

marks

omitted); see also id. at 728 (“[A] court need not engage in
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ritualistic incantation in order to establish its consideration
of a legal issue.
rules

on

It is sufficient if . . . the district court

issues

determination.

that

have

Consideration

been
is

fully

implicit

presented
in

the

court’s

ultimate ruling.” (internal quotation marks omitted)).
Legree

suggests

that,

in

the

absence

of

evidence

for

Thus,
a

court

neglected to consider relevant factors, the court does not err
in failing to provide a full explanation for its § 3582(c)(2)
decision.

III.
Smalls contends that in his case the district court did
err.

Smalls argues that (1) Legree did not hold that a court

need

not

provide

any

individualized

reasoning

for

its

§ 3582(c)(2) decision; (2) the facts of his case overcome the
Legree presumption; and (3) Legree is no longer good law.

We

consider these arguments in turn.
A.
First,

Smalls

asserts

that

Legree

did

not

address

the

question of whether a district court must provide some reasoning
in support of its grant or denial of a § 3582(c)(2) motion,
because that issue was not before the court.
Legree addressed that exact issue.

6

In fact, however,

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Legree primarily argued that the district court erred in
failing to conduct a two-part analysis of his motion on the
record, first stating the sentence it would have imposed had the
relevant

Guidelines

amendment

been

in

place

at

the

original

sentencing and, second, addressing the § 3553(a) factors.
at 728.

Id.

But Legree also contended that “the district court

erred because it did not state on the record with sufficient
specificity its reasons for denying the motion.”
n.3.

Id. at 729

We rejected that argument even though the district court

had provided no individualized explanation in support of its
decision.

See id. at 730-31 (Wilson, J., dissenting in part).

Thus, we find Smalls’ attempt to distinguish Legree unavailing.
B.
Smalls also argues that the facts of his case present a
“contrary indication” sufficient to rebut the Legree presumption
that

the

district

court

considered

all

relevant

factors

in

ruling on his § 3582(c)(2) motion.
In concluding that Legree himself had not overcome this
presumption, we found it significant that the same judge who
ruled

on

Legree’s

§

3582(c)(2)

motion

presided

over

his

sentencing and so was familiar with the mitigating factors set
forth at that time.
motion

failed

to

Id. at 729.

offer

any

new

7

Because Legree’s § 3582(c)(2)
mitigating

circumstances,

we

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concluded that all relevant factors were “adequately presented
to,” and considered by, the district judge.

See id.

As in Legree, the same district judge presided over Smalls’
original sentencing and his § 3582(c)(2) proceeding.

Further,

Smalls’ § 3582(c)(2) motion, like Legree’s, failed to set forth
any new mitigating factors.
that

the

district

calculations,
appropriate

a

court
§

vehicle

While Smalls argued in his motion

erred

in

3582(c)(2)
for

its

motion

challenging

original
does

those

drug

not

quantity

provide

calculations.

an
See

Dillon v. United States, 130 S. Ct. 2683, 2694 (2010) (district
court ruling on § 3582(c)(2) motion properly declined to address
allegations of error at original sentencing, as Ҥ 3582(c)(2)
does not authorize a resentencing”).
original

sentencing

would

not

Thus, any error in Smalls’
constitute

a

mitigating

circumstance counseling in favor of a further reduction in his
sentence.
Smalls
distinguish

contends,
his

case

however,
from

that

Legree.

three
First,

critical
Smalls

factors

notes

that

fifteen years elapsed between his original sentencing and the
district court’s consideration of his most recent § 3582(c)(2)
motion,

compared

to

four

years

in

Legree.

Thus,

Smalls

suggests, a reviewing court cannot presume that the facts of his
case remained fresh in the district court’s mind.

The lapse of

such a significant amount of time might in some cases cast doubt
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But in this case Smalls filed, and the

judge

addressed,

several

motions

during

the

fifteen-year period, suggesting that the judge remained familiar
with the facts of Smalls’ case.
Second,

although

Smalls

does

not

contend

that

his

§ 3582(c)(2) motion set forth any new mitigating factors, he
maintains that he would have submitted evidence of his exemplary
post-sentencing conduct in the reply brief the district court
said he could file.

Thus, Smalls argues, the district court

prevented him from fully presenting his case by deciding the
§ 3582(c)(2)

motion

before

receiving

his

reply

brief.

The

fundamental problem with this contention is that new arguments
cannot be raised in a reply brief.

See United States v. Al–

Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004).

Thus, in failing

to consider a reply brief, the district court did not fail to
consider all relevant factors properly before it.
Third, Smalls suggests that his case resembles not Legree,
but

another

case

in

which

the

defendant

and

the

government

jointly recommended a sentence reduction and the district court
refused

to

adopt

refusal to do so.

that

agreed-upon

reduction

or

explain

its

Even assuming such facts suffice to rebut the

Legree presumption, in Smalls’ case the Government never agreed
to

the

extent

of

the

reduction

9

he

requested.

Rather,

the

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Government requested a reduction only to the top of the amended
guideline range, and the district court granted that request.
Thus,

Smalls

is

unable

to

identify

any

meaningfully distinguishes his case from Legree.
find

it

significant

that

reduced Smalls’ sentence.

the

district

court

factor

that

Moreover, we
proportionally

In 1996, when originally sentencing

Smalls, the court found a sentence at the top of the thenapplicable guideline range appropriate based on the extent of
Smalls’

criminal

activities

and

responsibility for his actions.

his

failure

to

take

In response to Smalls’ 2008

motion for reduction of sentence, the district court reduced
Smalls’ sentence to the top of the amended guideline range.
court’s

decision,

in

response

to

Smalls’

most

The

recent

§ 3582(c)(2) motion, to select a sentence at the top of the new
guideline

range

suggests

that

the

same

considerations

that

motivated the court in the first instance continue to justify a
top-of-guidelines sentence.
We therefore conclude that the facts of Smalls’ case do not
rebut the Legree presumption that the district court considered
any relevant factors before it.
C.
Finally,

Smalls

contends

Legree

is

no

longer

good

law

because the Supreme Court’s decisions in Gall v. United States,

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552 U.S. 38 (2007), and Dillon v. United States undermine its
reasoning.
1.
In

Gall,

the

Court

clarified

the

obligations

of

a

sentencing court in the wake of United States v. Booker, 543
U.S. 220 (2005), which held the Sentencing Guidelines advisory.
The Court concluded that an out-of-guidelines sentence need not
be justified by “extraordinary” circumstances, but that, whether
imposing

a

within-guidelines

sentence

or

not,

the

sentencing

court must consider the 18 U.S.C. § 3553(a) factors and “make an
individualized assessment based on the facts presented.”
552 U.S. at 47, 49-50.

Gall,

Further, the sentencing court “must

adequately explain the chosen sentence to allow for meaningful
appellate

review

sentencing.”

and

to

promote

the

perception

of

fair

court

must

Id. at 50.

Though

Gall

makes

clear

that

a

sentencing

explain its reasoning when initially sentencing a defendant, it
says

nothing

about

§

3582(c)(2)

proceedings.

Moreover,

in

indicating that sentencing courts must adequately explain their
chosen

sentences,

the

Gall

States, 551 U.S. 338 (2007).

Court

relied

on

Rita

v.

United

See Gall, 552 U.S. at 50; Rita,

551 U.S. at 356 (“The sentencing judge should set forth enough
to

satisfy

the

appellate

court

that

he

has

considered

the

parties’ arguments and has a reasoned basis for exercising his
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own legal decisionmaking authority.”).

And in Rita, the Supreme

Court rooted the requirement that a district court explain its
reasoning in 18 U.S.C. § 3553(c), a provision that does not
apply to § 3582(c)(2) proceedings.

Rita, 551 U.S. at 356-57;

see 18 U.S.C. § 3553(c) (requiring the court, “at the time of
sentencing,”

to

“state

in

open

court

the

reasons

for

its

imposition of the particular sentence” (emphasis added)); United
States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009) (“By its very
terms, [§ 3553(c)] applies at the time of sentencing, not at the
time of sentence modification.”).
Dillon,
further

which

the

undermines

Court

Smalls’

§ 3582(c)(2) proceedings.
Booker

rendered

issued

three

years

that

Gall

argument

after

Gall,

extends

to

The question in Dillon was whether

advisory

a

policy

statement

governing

§ 3582(c)(2) proceedings, which provides that, except in limited
circumstances,

a

court

cannot

reduce

a

defendant’s

below the minimum of the amended guideline range.
§ 1B1.10(b)(2).
statement
implicate

See U.S.S.G.

The Court held that Booker did not render the

advisory,
the

sentence

as

interests

§

3582(c)(2)

identified

in

proceedings
Booker.”

“do

Dillon,

not
130

S. Ct. at 2692; see id. at 2687 (noting that Booker “rendered
the Guidelines advisory to remedy the Sixth Amendment problems
associated with a mandatory sentencing regime”).

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In holding Booker inapplicable, the Supreme Court in Dillon
explained that Ҥ 3582(c)(2) does not authorize a sentencing or
resentencing proceeding,” and emphasized the “limited nature” of
§

3582(c)(2)

emphasis

proceedings.

on

§ 3582(c)(2)

the

Id.

at

distinctions

proceedings,

we

2690-91.
between

simply

cannot

Given

Dillon’s

sentencings
assume

that

and
Gall,

which makes no mention of § 3582(c)(2) proceedings, implicitly
created rules to govern them.

Thus, Smalls’ argument that Gall

undermines Legree fails.
2.
Smalls’
Dillon

further

established

individualized

a

contention
new

reasoning

fares no better.

rule
when

that,

independent

requiring
deciding

§

courts

of

Gall,

to

provide

3582(c)(2)

motions

Dillon did, as Smalls points out, note that

courts deciding § 3582(c)(2) motions are to consider applicable
§ 3553(a) factors.

Id. at 2692.

But, contrary to Smalls’

contention, Dillon did not create that requirement.

Rather, as

we recognized in Legree, § 3582(c)(2) itself instructs courts to
consider the § 3553(a) factors.

See 18 U.S.C. § 3582(c)(2)

(“[T]he court may reduce the [defendant’s] term of imprisonment,
after considering the factors set forth in section 3553(a) to
the extent that they are applicable.”); Legree, 205 F.3d at 727.
Because Dillon does not indicate that courts must consider those
factors on the record, it is not inconsistent with Legree.
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3.
Finally,

we

circuit cases.

find

unavailing

Smalls’

reliance

on

out-of-

See United States v. Howard, 644 F.3d 455, 459-

61 (6th Cir. 2011) (holding district court must provide some
reasoning

when

considering

a

sentence

modification

under

§ 3582(c)(2)); United States v. Burrell, 622 F.3d 961, 964 (8th
Cir. 2010) (same); United States v. Marion, 590 F.3d 475, 477-78
(7th Cir. 2009) (same).

Those cases did not come in the wake of

contrary circuit precedent like Legree, or indicate that Gall,
Dillon, or any other Supreme Court case subsequent to Legree
required the result reached.

Thus, the cases on which Smalls

relies do not support his argument that we are no longer bound
by Legree.
We

therefore

constitutes

conclude

superseding

that

Supreme

neither
Court

Gall

precedent

nor
that

Dillon
would

permit us to ignore Legree.

IV.
Because Legree governs and the facts of Smalls’ case fail
to overcome its presumption that, absent a contrary indication,
a

court

has

considered

the

relevant

factors

in

deciding

a

§ 3582(c)(2) motion, we hold the district court’s explanation
sufficient.

Accordingly, the judgment of the district court is
AFFIRMED.
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