USA v. Ernest Haye

Filing

Per Curiam OPINION filed : The district court's denial of the defendant's motion to reduce his sentence is AFFIRMED. Decision not for publication. Julia Smith Gibbons, Jeffrey S. Sutton, and David W. McKeague, Circuit Judges.

Case: 14-1741

Document: 15-2

Filed: 01/28/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0088n.06

FILED

No. 14-1741
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERNEST HAYES,
Defendant-Appellant.

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Jan 28, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: GIBBONS, SUTTON, and McKEAGUE, Circuit Judges.

PER CURIAM. Ernest Hayes, a federal prisoner, appeals through counsel a district court
order denying his motion to reduce his sentence, filed pursuant to 18 U.S.C. § 3582(c)(2).
In 2008, Hayes entered a guilty plea to a charge of maintaining a drug establishment. He
agreed to a guidelines range of 151 to 188 months. R. 111 at 2. That range resulted from his
status as a career offender (category VI) at a total offense level of 29. Id. at 12; see U.S.S.G. ch.
5, pt. A (Sentencing Table). Absent the career offender provision, his guidelines range would
have been 57 to 71 months based on criminal history category III. See U.S.S.G. ch. 5, pt. A.
At the sentencing hearing, counsel for Hayes argued that the career offender provision
greatly overstated the criminal history Hayes had accumulated, and urged the court to sentence
within the lower guidelines range. The court rejected that argument. R. 189 at 11. Counsel for
the government moved for a small reduction based on the cooperation Hayes had provided in

Case: 14-1741

Document: 15-2

Filed: 01/28/2015

Page: 2

No. 14-1741
United States v. Hayes
prosecuting a co-defendant. The district court noted the cooperation provided by Hayes, as well
as his problem with drug addiction and his apparent remorse, in varying downward to impose a
sentence of 120 months.
In this motion, Hayes argued that Amendment 750 to the Guidelines would reduce the
non-career offender range in his case to 46 to 57 months. He relied on United States v. Jackson,
678 F.3d 442, 444-45 (6th Cir. 2012), as authority for granting the motion, arguing that his
sentence was based on the non-career offender range. The district court disagreed, finding that
Jackson was distinguishable, and denied the motion. Hayes reasserts his argument on appeal.
We review de novo a determination that a sentence was not based on a sentencing range
that has been lowered by the Sentencing Commission. Id. at 444. In Jackson, the district court
stated that it was varying downward based on the disparity between crack and powder cocaine
sentences. Id. at 445. We look at what the district court said at sentencing in reviewing whether
a sentence was based on a subsequently lowered guidelines range. United States v. Thompson,
714 F.3d 946, 950 (6th Cir. 2013). In this case, the court said that it was accepting the 151-to181-month guideline range from the plea agreement. R. 189 at 11. That guideline range was
based on the career offender guidelines, not the crack guidelines. R. 111 at 2, 12; see U.S.S.G.
ch. 5, pt. A (imposing a 151-to-188-month range for level 29 at criminal history category VI).
While counsel for the defendant briefly mentioned the disparity in cocaine sentences, the district
court did not reference that argument in imposing the sentence or in varying downward. The
reliance on Jackson is therefore misplaced. Instead, as in Thompson, the district court here did
not base the sentence on the drug quantity guidelines range, because it was trumped by the career
offender range. Moreover, even if the sentence had been based in part on the drug quantity
range, a reduction in sentence would not be authorized because Amendment 750 did not lower

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Case: 14-1741

Document: 15-2

Filed: 01/28/2015

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No. 14-1741
United States v. Hayes
the applicable career offender range. See United States v. Webb, 760 F.3d 513, 521 (6th Cir.
2014).
Accordingly, we affirm the district court’s order denying the defendant’s motion to
reduce his sentence.

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