USA v. Hereford

Filing

Download PDF
USA v. Hereford Doc. 0 Case: 08-10452 Document: 00511170171 Page: 1 Date Filed: 07/12/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED July 12, 2010 N o . 08-10452 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. H E N R Y LAWRENCE HEREFORD D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court for the Northern District of Texas, Lubbock Division N o . 5:04-CR-002-C B e fo r e DAVIS, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* U n d e r 18 U.S.C. § 3582(c)(2), certain federal defendants can move for r e d u c t io n of their sentences based on amendments to the United States S e n te n c in g Guidelines. Defendant Henry Lawrence Hereford ("Hereford") m o v e d pro se under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence in light o f the 2007 amendments to the Guideline's crack cocaine provisions. The district c o u r t granted his motion, but imposed a sentence at the high end of the amended G u id e lin e s range. Hereford appealed. We appointed counsel for Hereford to Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Dockets.Justia.com Case: 08-10452 Document: 00511170171 Page: 2 Date Filed: 07/12/2010 No. 08-10452 b r ie f, inter alia, whether he had a right to representation by appointed counsel in the proceedings below. Hereford's counsel now raises two issues: (1) whether t h e district court erred in failing to appoint counsel; and (2) whether the district c o u r t erred in failing to assign reasons for not further reducing Hereford's s e n te n c e . We affirm for the following reasons. I. Hereford did not ask the court to appoint counsel to assist him with his § 3 5 8 2 (c )(2 ) motion. We, therefore, review the district court's failure to appoint c o u n s e l for plain error. II. H e r e fo r d cites no law from this circuit that required the district court to a p p o in t counsel. In fact, the most directly applicable circuit authority supports t h e government's position that appointment of counsel is not required. I n United States v. Whitebird, 55 F.3d 1007 (5th Cir. 1995), this court held t h a t a defendant does not have a statutory or constitutional right to appointed c o u n s e l in § 3582(c)(2) proceedings. The defendant argued that § 3582 reduction p r o c e e d in g s are "ancillary matters" under the Criminal Justice Act, id. at 1010, w h ic h provides for appointment of counsel to represent the defendant "at every s t a g e of the proceedings from his initial appearance . . . through appeal, in c lu d in g ancillary matters appropriate to the proceedings," 3 0 0 6 A (c ). The panel disagreed, explaining, 18 U.S.C. § A § 3582(c)(2) motion is not a second opportunity to present m it ig a t in g factors to the sentencing judge, nor is it a challenge to t h e appropriateness of the original sentence. Rather, it is simply a vehicle through which appropriately sentenced prisoners can urge t h e court to exercise leniency to give certain defendants the benefits o f an amendment to the Guidelines. 2 Case: 08-10452 Document: 00511170171 Page: 3 Date Filed: 07/12/2010 No. 08-10452 I d . at 1011. Concluding that a § 3582(c)(2) motion is "too far removed to be the c o n s id e r e d `ancillary' to the criminal proceeding," the panel held that d e fe n d a n t had no statutory right to appointed counsel under the Act. Id. The p a n e l also held that there is no right to appointed counsel under the Sixth A m e n d m e n t because "the constitutional right to counsel extends only through t h e defendant's first appeal." Id. at 1011. Finally, the panel concluded that due p r o c e s s did not require the appointment of counsel in that case. Id. at 1011, n.3. III. H e r e fo r d argues that Whitebird does not control in this case because the g o v e r n in g amended guideline in his case is different from the guideline in W h ite b ir d 's case. The principal difference is that the amended guideline in W h ite b ir d 's case did not permit the sentencing judge to consider Whitebird's p o s t - sentencing conduct in considering the § 3582 motion; whereas, the current a m e n d e d guideline does give the judge authority to consider post-sentencing con d u ct. Compare U.S.S.G. § 1B1.10(b) (1995) with § 1B1.10(b) (2008). See a ls o United States v. Robinson, 542 F.3d 1045 (5th Cir. 2008). N o authority from other circuits has been cited that tends to undermine W h ite b ir d 's reasoning. At least two other circuits have relied on Whitebird to h o ld that § 3582 proceedings are not ancillary proceedings under the Criminal J u s tic e Act even after Booker and the 2008 amendments to § 1B1.10(b) and thus t h e court is not required to appoint counsel for these proceedings. United States. v . Webb, 565 F.3d 789 (11th Cir. 2009); see also United States. v. Harris, 568 F .3 d 666 (8th Cir. 2009). IV. T h e Supreme Court recently held that Booker does not apply to § 3 5 8 2 (c )(2 ) proceedings and therefore we are not required to treat U.S.S.G. § 3 Case: 08-10452 Document: 00511170171 Page: 4 Date Filed: 07/12/2010 No. 08-10452 1 B 1 .1 0 (b ) as advisory. Dillon v. United States, 09-6338, 2010 WL 2400109 (2 0 1 0 ). This holding is consistent with previous Fifth Circuit decisions on this is s u e . See United States v. Doublin, 572 F.3d 235 (5th Cir. 2009); United States v . Evans, 587 F.3d 667 (5th Cir. 2009). V. T h e above discussion of the authorities in this and other circuits d e m o n s t r a t e s that the district court's failure to appoint counsel was not clear or o b v io u s error. Thus, Hereford's challenge to the district court's failure to appoint c o u n s e l fails under plain error review. V I. F in a lly , Hereford argues that the district court failed to adequately e x p la in the reasons for not further reducing his sentence. The Government r e s p o n d s that Hereford failed to preserve this issue below and that the district c o u r t did not plainly err because binding precedent from this circuit has never r e q u ir e d a district court explicitly to provide a statement of reasons or discuss t h e 18 U.S.C. § 3553(a) factors in ruling on a defendant's section 3582(c)(2) m o t io n . We agree with the Government. See generally Evans, 587 F.3d at 671 (5 t h Cir. 2009) (finding that plain error is not "obvious," "clear," or "readily a p p a r e n t " when there is a lack of precedent) . V II. F o r the above reasons, we affirm the judgment of the district court. A F F IR M E D . 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?