US v. Albert Hardy, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00010-MR-1. Copies to all parties and the district court. [999980274]. [16-6461]

Appeal: 16-6461

Doc: 24

Filed: 12/05/2016

Pg: 1 of 11

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6461

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALBERT EUGENE HARDY, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00010-MR-1)

Submitted:

November 17, 2016

Decided:

December 5, 2016

Before TRAXLER, KING, and THACKER, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Ross Hall Richardson, Executive Director, Joshua B. Carpenter,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant. Jill Westmoreland Rose, United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 16-6461

Doc: 24

Filed: 12/05/2016

Pg: 2 of 11

PER CURIAM:
Albert Eugene Hardy, Jr., appeals from the district court’s
order

granting

in

part

and

denying

in

part

his

§ 3582(c)(2) (2012) motion for a sentence reduction.

18

U.S.C.

On appeal,

he contends that the district court erred in failing to consider
relevant 18 U.S.C. § 3553(a) factors and analyze them explicitly
on the record.

We agree, and thus, we vacate and remand for

further proceedings.
After Hardy originally pled guilty, the probation officer
prepared

a

presentence

report

(PSR),

calculating

an

offense

level of 31 and finding that Hardy’s criminal history category
was V.
in

Hardy’s Sentencing Guidelines range was 168-210 months

prison.

However,

because

Hardy

was

also

subject

to

a

statutory mandatory minimum term of 20 years in prison under 21
U.S.C.

§

841(b)(1)(A)

(2012),

and

pursuant

to

the

21

U.S.C.

§ 851 (2012) notice filed by the Government, the PSR recognized
that

Hardy’s

Guidelines

range

was

240

months

under

U.S.

Sentencing Guidelines Manual § 5G1.1(b) (2006).
The Government moved for a downward departure based upon
Hardy’s

substantial

assistance

under

USSG

§

5K1.1.

The

Government recommended a downward departure to the Guidelines
range of 168-210 months in prison.

The district court granted

the motion for a downward departure and sentenced Hardy to 168
months in prison.
2

Appeal: 16-6461

Doc: 24

In

Filed: 12/05/2016

2015,

Hardy

moved

Pg: 3 of 11

for

a

reduction

in

sentence

under

§ 3582(c)(2) (2012), arguing that he was eligible for immediate
relief under Amendments 750 and 780.
described

the

operation

of

USSG

In Hardy’s motion, he

§§

1B1.10

and

5G1.1

and

concluded that he was eligible for a term of imprisonment as low
as 84 months.

Regarding the appropriate sentence to be imposed,

the only reasoning Hardy provided was the assertion that he had
a clean disciplinary record in prison and that he had completed
numerous

education

programs

and

work

assignments

while

in

prison.
The

probation

officer

prepared

a

supplemental

PSR,

concluding that, due to the amount of crack cocaine, Hardy was
ineligible

for

a

reduction

under

Amendments

750

and

780.

However, the probation officer determined that Hardy would be
eligible

for

a

reduction

under

Amendment

782.

Specifically,

Hardy’s offense level would be reduced to 29, resulting in a
Guidelines range of 140 to 175 months in prison.

Noting that

USSG § 1B1.10(c) instructs a court to disregard § 5G1.1 where a
defendant

received

probation

officer

a

substantial

determined

that

assistance
Hardy

was

departure,
eligible

the

for

a

reduction in his sentence to 98 months in prison, or a reduction
to

70%

of

representing

the
a

low

end

reduction

of

the

amended

comparable

3

to

Guidelines

the

reduction

range,
Hardy

Appeal: 16-6461

Doc: 24

Filed: 12/05/2016

Pg: 4 of 11

received from the Guidelines term of 240 months as a result of
the Government’s original motion for a downward departure.
The Government agreed with the PSR and consented to the
full

extent

of

the

reduction.

The

district

court

granted

Hardy’s motion for a reduced sentence, but limited the reduction
to 140 months in prison.

The court noted that Hardy’s sentence

was originally enhanced as a result of the § 851 notice and his
cooperation

garnered

a

reduction

to

the

low

end

of

the

Guidelines range, without consideration of the § 851 notice.
The

district

court

stated

that

Hardy’s

reduced

sentence

was

likewise at the low end of the amended Guidelines range without
consideration of the § 851 enhancement.

The court filled out a

form, stating that the Guidelines range both before and after
the amendment was 240 months, the statutory mandatory minimum.
On appeal, we vacated Hardy’s sentence and remanded for
further consideration.

We noted that the district court failed

to explicitly “specify the extent of the permissible reduction”
to

98

months.

We

also

stated

that

the

district

court

incorrectly concluded that the amended Guidelines range was 240
months, even though the Guidelines specifically direct that “the
amended guideline range shall be determined without regard to”
the statutory mandatory minimum.

USSG § 1B1.10(c).

For these

reasons, we concluded that the district court did not appreciate

4

Appeal: 16-6461

Doc: 24

Filed: 12/05/2016

Pg: 5 of 11

the scope of its authority under § 3582(c)(2).

United States v.

Hardy, 640 F. App’x 233, 236-37 (4th Cir. 2016) (No. 15-6966).
On remand, on February 10, 2016, Hardy filed a supplemental
sentencing memorandum, again requesting a sentence of 98 months
in prison.
applicable

This memorandum was much more detailed regarding the
factors

to

be

considered.

Hardy

noted

that

the

Government had reiterated its consent to a 98-month sentence at
oral

argument

Commission

on

appeal.

determined

Hardy

that

argued

that

“cooperating

the

Sentencing

defendants

deserve

special treatment when it comes to sentence reductions under
§ 3582(c)(2).”
the

best

way

According to Hardy, the Commission decided that
to

effectuate

that

policy

goal

was

to

remove

consideration of the mandatory minimum (and thus any affect from
the § 851 notice) from the sentencing calculus.

Hardy averred

that the amended Guidelines range of 140 to 175 months was a
“rough

approximation

of

[a

sentence]

that

might

achieve

§ 3553(a)’s objectives” and that this Guidelines range did not
account for Hardy’s substantial assistance.

Hardy argued for

the full extent of the permissible reduction, contending that he
had an exemplary prison record and the Government would likely
not file an § 851 notice in Hardy’s case were he prosecuted
under current policy.
Hardy

also

stated

that,

while

his

criminal

history

was

lengthy, his most serious conviction (the predicate drug felony)
5

Appeal: 16-6461

Doc: 24

Filed: 12/05/2016

Pg: 6 of 11

occurred in 1990, more than 17 years before the offense in this
case,

and

several

convictions

occurred

in

his

youth.

Hardy

argued, for the first time, that two of his convictions were
erroneously assigned points.
from

challenging

the

He conceded that he was barred

calculation

of

his

criminal

history

category at this late date, but he noted the issue was a factor
to

consider

under

§

3553.

Finally,

Hardy

stated

that

a

co-defendant, for whom Hardy worked, was eventually sentenced
within the amended Guideline range of 84 to 105 months, which
created a sentencing disparity in his case.

The Government did

not file a response.
On March 9, 2016, the district court granted the motion for
a reduction in sentence and again entered a sentence of 140
months.

The court provided a factual background and noted that

the issue was ripe for review, without recognizing that Hardy
had filed a supplemental sentencing memorandum on remand.

The

court explicitly stated that Hardy was eligible for a sentence
as

low

as

98

months

and

averred

that

it

“concluded

originally, but did not adequately document it.”
noted

that,

while

a

defendant’s

eligibility

this

The court then
for

a

sentence

reduction must be determined without regard for the mandatory
minimum sentence, the § 851 notice can still be considered in
analyzing the § 3553 factors.
reasoned

that,

without

In so doing, the court again

consideration
6

of

the

§

851

notice,

a

Appeal: 16-6461

Doc: 24

Filed: 12/05/2016

Pg: 7 of 11

defendant could be sentenced to a “lower sentence because of a
prior felony drug conviction that served as the basis for the
§ 851 notice.”
The

court

interplay

claimed

between

an

§

that
851

“this

notice,

issue”
a

(presumably

substantial

the

assistance

departure, and a § 3582 reduction) was not addressed by Hardy’s
counsel.

The court continued that “the third step of the Dillon *

analysis

was

simply

ignored

and

replaced

with

a

formulaic

request for the lowest possible sentence for which the Defendant
is eligible, without any further explanation and without any
acknowledgement of the impact of the Defendant’s § 851 Notice.”
The court reasoned that a 140-month sentence reduced Hardy’s
sentence the equivalent of two offense levels, which was the
general

intent

§ 3553(a)
court.

of

factors

Amendment
as

782

originally

and

was

analyzed

in

accord

by

the

with

sentencing

In addition, the district court stated that, analyzing

the § 3553 factors anew would result in the same sentence.
court

the

noted

that

Hardy

was

responsible

for

a

The

substantial

quantity of a dangerous drug and that, absent some recognition

*

Dillon v. United States, 560 U.S. 817 (2010). The Supreme
Court described the “third” step of the Dillon analysis as
follows:
“consider
any
applicable
§ 3553(a)
factors
and
determine whether, in its discretion, the reduction authorized
. . . is warranted in whole or in part under the particular
circumstances of the case.” Id. at 827.

7

Appeal: 16-6461

of

Doc: 24

the

§

Filed: 12/05/2016

851

notice,

sentencing disparities.

the

Pg: 8 of 11

resulting

sentence

would

create

Hardy timely appealed.

This court “review[s] a district court’s grant or denial of
a § 3582(c)(2) motion for abuse of discretion. . . .

But the

question of whether a court ruling on a § 3582(c)(2) motion must
provide an individualized explanation is one of law that [this
court] consider[s] de novo.”
193,

195

(4th

Cir.

2013)

United States v. Smalls, 720 F.3d
(citation

omitted).

In

deciding

whether to grant a motion for a sentence reduction, the district
court must first determine whether the defendant is eligible for
the reduction, consistent with USSG § 1B1.10, p.s., and then
“consider whether the authorized reduction is warranted, either
in whole or in part, according to the factors set forth in
§ 3553(a),” Dillon v. United States, 560 U.S. 817, 826 (2010),
“to

the

extent

§ 3582(c)(2).

The

that

they

court

are
also

may

applicable,”
consider

18

U.S.C.

“post-sentencing

conduct of the defendant that occurred after imposition of the
term

of

imprisonment”

in

determining

whether,

extent, a sentence reduction is warranted.

and

to

what

USSG § 1B1.10, p.s.,

cmt. n.1(B)(iii).
In United States v. Legree, 205 F.3d 724 (4th Cir. 2000),
we considered the adequacy of a district court’s explanation in
a § 3582(c)(2) proceeding.
sentence

reduction,

the

Although Legree was eligible for a
district
8

court

denied

relief

after

Appeal: 16-6461

Doc: 24

Filed: 12/05/2016

Pg: 9 of 11

“describing [the] motion, recounting the history of Amendment
505, and observing that a court is not required to reduce a
sentence under the Amendment.”

Id. at 728.

Legree argued that

“the district court erred by neglecting to undertake a two-prong
analysis on the record when considering the motion for reduction
of sentence,” id. at 727-28, and in failing to “state on the
record with sufficient specificity its reasons for denying the
motion,” id. at 729 n.3.

We disagreed, holding that, “absent a

contrary indication,” it is presumed that the district court has
considered the § 3553(a) factors and other “issues that have
been fully presented for determination,” and thus “[n]o greater
specificity

was

required.”

Id.

at

728-29

&

n.3

(internal

quotation marks omitted).
We concluded that the case had been fully presented for
determination because the same district court that had denied
Legree’s § 3582(c)(2) motion had presided over his sentencing
hearing,

during

factors.

Id. at 729.

not

presented

which

any

it

had

considered

several

mitigating

We deemed it significant that Legree had
additional

mitigating

submitted his sentence reduction motion.

factors

when

he

Id.; see also Smalls,

720 F.3d at 195-97, 199 (rejecting challenge to sufficiency of
explanation

when

court

reduced

sentence

to

top

of

amended

Guidelines range, stating only that it had considered § 3553(a)
factors).

In

Smalls,

this

Court
9

reemphasized

“that,

in

the

Appeal: 16-6461

absence

Doc: 24

of

Filed: 12/05/2016

evidence

a

court

Pg: 10 of 11

neglected

to

consider

relevant

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

720 F.3d at 196.

We conclude that here there is, in fact, evidence that the
court neglected to consider relevant factors.

Because Hardy

presented plausible arguments as to the propriety of considering
the

§ 851

notice

as

well

as

the

application

of

the

§ 3553

factors and because the district court did not acknowledge these
arguments and, in fact, stated that no such arguments had been
made, the district court either overlooked Hardy’s filing or
made a mistake of fact in reading it.

In addition, because the

judge is not the same judge who presided over Hardy’s original
sentencing and because the memorandum addressed new issues not
addressed at sentencing or in the original sentencing memorandum
in the § 3582 motion, we find that the failure to provide more
detailed reasoning prevents us from determining whether there
was an abuse of discretion.
Thus,

we

vacate

further

proceedings

Hardy’s

request

remand.

for

and

remand

consistent
the

to

with

assignment

the

district

court

this

opinion.

We

of

a

different

for
deny

judge

on

We dispense with oral argument because the facts and

10

Appeal: 16-6461

legal
before

Doc: 24

contentions
this

court

Filed: 12/05/2016

Pg: 11 of 11

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

VACATED AND REMANDED

11