USA v. Charles Brim, Jr.

Filing

OPINION filed : AFFIRMED, decision not for publication. Jeffrey S. Sutton, Circuit Judge; Jane Branstetter Stranch, Circuit Judge and George C. Steeh, U.S. District Judge (Authoring) .

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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0564n.06

FILED
Oct 05, 2016
DEBORAH S. HUNT, Clerk

No. 15-2582
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

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v.
CHARLES BRIM, JR.,
Defendant-Appellant.

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
OPINION

____________________________________
BEFORE: SUTTON and STRANCH, Circuit Judges; STEEH, Senior District Judge. 
GEORGE CARAM STEEH, Senior District Judge.
Defendant Charles Brim, Jr. appeals the denial of his motion for a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2). Finding no abuse of discretion, we affirm.
I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2012, Brim pleaded guilty to conspiracy to distribute and to possess with intent to
distribute five kilograms or more of cocaine and 280 grams or more of cocaine base in violation
of 21 U.S.C. § 846. (PgID 36, 46). Based on a total offense level of 31 and a criminal history
category of V, the sentencing guideline range was calculated at 168 to 210 months. (PgID 119).
Probation recommended a sentence of 168 months. (PgID 123). Brim requested a variance on
the grounds, among other things, that he was a street dealer who had never served any significant


The Honorable George Caram Steeh, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.

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custodial time. (R. 32). The district court granted the variance and imposed a sentence of
144 months, two years below the bottom of the advisory range. (PgID 156, 197).
At the sentencing hearing, the district court gave a detailed analysis of its decision to
grant the variance. (PgID 190-97). The court explained that significant drug quantities were
involved because of the “slow and steady drip of drugs” at seven locations involving a very
significant distribution network over a lengthy period of time. (PgID 191). Despite this complex
conspiracy, the court noted that Brim’s involvement was predominantly “of fairly low-level
activity,” suggesting that the district court agreed with Brim’s argument that he was a “streetlevel dealer.” (PgID 185, 194). The court commented that Brim had not served the significant
custodial time that would be expected of a defendant classified as criminal history V, suggesting
that the crimes were not at the most serious level, and that it was through Brim’s intelligence and
charisma that he had avoided greater penalty for his criminal activity. (PgID 192, 195).
The district court did not place much weight on Brim’s cooperation with law
enforcement, as he had already received a significant benefit for that assistance because of the
government’s promise not to file notice of his prior drug felonies, which could have resulted in a
mandatory life sentence. (PgID 192-94). The district court indicated that a downward variance
would afford Brim an opportunity, sooner rather than later, to make good on his representations
to the court that his conviction marked a turning point in his life, and that upon release, he would
apply his considerable skills in a positive direction. (PgID 192, 195-96).
While incarcerated, Brim completed a number of vocational courses, but also had several
disciplinary infractions for being insolent to staff and refusing to obey orders. (PgID 171). In
2015, Brim filed a motion to reduce his sentence under § 3582(c) based on Amendment 782 to
the guidelines, which lowered the sentencing ranges for most drug offenses. (R. 35). The

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probation department prepared a sentence modification report (“SMR”) which determined that
Brim was eligible for a sentence reduction, calculated the new guideline range as 140 to 175
months, and recommended a new sentence of 140 months. (R. 39). Brim and the government
filed a stipulation indicating their agreement with the guideline range in the SMR, and agreeing
to the entry of an order reducing Brim’s sentence to 140 months. (R. 40).
The same district judge that presided over the original sentencing also presided over the
resentencing.

The district court used the standard AO-247 form order generated by the

Administrative Office of the United States Courts for efficient disposition of sentence reduction
motions under § 3582(c), checked the box that Brim’s motion was denied, and in the additional
comments section of the form, commented, “[t]he Court recognizes that Defendant is eligible for
reduction, but exercise[s] its discretion to deny reduction on the facts of this record.” (R. 41).
The form order specifically noted that the court had considered the policy statement set forth at
U.S.S.G.§ 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a). Id.
II. STANDARD OF REVIEW
We review a district court order denying a motion to reduce sentence for an abuse of
discretion. United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009). “A district court abuses
its discretion when it ‘relies on clearly erroneous findings of fact, improperly applies the law, or
uses an erroneous legal standard.’” United States v. Howard, 644 F.3d 455, 458 (6th Cir. 2011)
(quoting United States v. Munoz, 605 F.3d 359, 366 (6th Cir. 2010)).
III. ANALYSIS
On appeal, Brim argues that the district court abused its discretion when it denied his
motion for a sentence reduction because it used a form order and did not adequately explain its
reasoning. Section 3582(c) allows a court to reduce a sentence premised on a guideline that the

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Sentencing Commission later retroactively reduces. 18 U.S.C. § 3582(c). There is no dispute
that Brim is eligible for a sentence reduction. When a defendant is eligible for a sentence
reduction, the district court must consider the § 3553(a) factors to determine whether a reduction
is warranted.

Dillon v. United States, 560 U.S. 817, 827 (2010).

A sentence reduction

proceeding under § 3582(c) is “not a plenary resentencing proceeding,” and as such, the same
degree of procedural formalities that attach to plenary sentencings are not required. Id. at 826.
The district court must provide some explanation for its decision, although the burden is not a
heavy one. Howard, 644 F.3d at 460 (citing United States v. Curry, 606 F.3d 323, 330-31 (6th
Cir. 2010)); see United States v. Holland, 391 F. App’x 468, 470 (6th Cir. 2010) (affirming
denial of sentence reduction under § 3582(c) where the district court issued a summary order that
incorporated by reference “the reasons stated in the government’s brief.”).
In some circumstances, a summary order will be sufficient, and this most often occurs
where the denial is in accord with the original sentencing, or the sentence reduction granted is in
the comparable guideline range as the original sentence. Most significantly, in Curry, we
deemed the district court’s order denying a sentence reduction as “cursory at best,” but we held
that the district court did not abuse its discretion because “the record had been amply developed
before the resentencing[,] . . . [the district court] had already considered the relevant factors in
some depth at the original sentencing and the first resentencing[,] . . . [and] indicated [it] had
reviewed the entire record, including the parties’ recommendations, and had considered all the
relevant § 3553(a) factors and the Sentencing Guidelines in making [its] decision.” 606 F.3d at
330-31. In Curry, the district court had previously resentenced the defendant under United
States v. Booker, 543 U.S. 220 (2005) to 75 months imprisonment, which was one year below
the guidelines. Id. at 325. In his motion for a reduced sentence under § 3582(c), his amended

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guideline range was 70 to 87 months. Id. at 326. Thus, even if the district court in Curry had
resentenced defendant at the absolute lowest level of the adjusted guidelines, this would have
amounted to a reduction of only five months. In these circumstances, we deemed it appropriate
for the district court to summarily dismiss defendant’s motion with a reference to the record as a
whole. Consistent with our holding in Curry, other circuits have found that the district court did
not err when it used a summary order in ruling on a § 3582(c) sentence-reduction motion. See
United States v. Smalls, 720 F.3d 193, 195-99 (4th Cir. 2013); United States v. Brown, 497 F.
App’x 196, 198 (3d Cir. 2012) (per curiam) (collecting cases).
As in Curry, we have affirmed the denial of a sentence reduction based on comparably
detailed sentencing or resentencing records similar to those presented here. For example, in
United States v. Watkins, 625 F.3d 277, 281 (6th Cir. 2010), we affirmed the denial of a sentence
reduction where the district court previously considered the relevant factors in defendant’s three
prior resentencing motions and indicated that it had considered the entire record and all the
relevant §3553(a) factors. In Watkins, we observed that “[s]ection 3582(c)(2) proceedings are
not full resentencings, and we do not require the district court to articulate its analysis of each
sentencing factor as long as the record demonstrates that the court considered the relevant
factors.” Id. at 281 (citing Curry, 606 F.3d at 330-31). Similarly, in United States v. Dewitt,
385 F. App’x 479 (6th Cir. 2010), we affirmed the denial of a sentence reduction under §
3582(c), where the district court did not expressly discuss the §3553(a) factors, but the same
judge presided over the original sentencing and a prior resentencing resulting in a belowguidelines sentence, and the judge considered the presentence report addendum, defendant’s
motion and the government’s response, and judicial notes from the initial sentencing and
resentencing. Id. at 481-83.

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Brim argues that our holding in United States v. Howard, supra, requires reversal here.
True enough, in Howard we held that the district court failed to adequately explain its order
granting a sentence reduction when it relied on a form order with no analysis. Id. at 460-62. But
Howard is distinguishable because Howard was resentenced to the middle of the amended
guideline range, which was at odds with his original sentence which fell at the absolute low-end
of the guideline range. Id. at 457. Specifically, the original guideline range was 97-121 months
and the district court imposed a sentence of 97 months. Id. The adjusted guideline range was
78-97 months, and the district court imposed an amended sentence of 88 months. Id. Given this
inconsistency, unlike here, the court’s original sentencing analysis could not explain the
amended sentence.
Like our decision in Howard, some courts of appeals have found that district courts must
offer more explanation of the § 3553(a) factors than merely relying on a form order, but those
decisions are limited to situations where the defendant is resentenced to a term of imprisonment
out of proportion to the original sentence. See, e.g., United States v. Christie, 736 F.3d 191, 198
(2d Cir. 2013) (remanding for explanation where defendant resentenced to above-guidelines
sentence, despite twice being sentenced at the bottom of his guidelines range); United States v.
Burrell, 622 F.3d 961, 965-66 (8th Cir. 2010) (remanding for explanation where no
proportionality between original sentence at middle of advisory guideline range and amended
sentence at very top of amended guideline range); United States v. Lara, 626 F. App’x 799, 80102 (11th Cir. 2015) (remanding for explanation where no proportionality between original
sentence at mid-level of advisory guidelines and amended sentence at apex of modified guideline
range). These cases serve to illustrate the point that the degree of explanation required is

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heightened when the district court refuses to grant a reduction that would be in the comparable
guideline range as the original sentence.
The instant action is akin to Curry and is distinguishable from Howard. As in Curry, the
reduction that Brim requests is only a few months. (Here, four; there, five.) As in Curry, the
same judge presided over the original sentencing and the resentencing. And, similarly, the
record was fully developed at the original sentencing, where the district court granted a variance
and imposed a below-guideline sentence, which was at the very low-end of the amended
guideline range. The order denying Brim’s motion for a sentence reduction indicated that the
court had considered all of the § 3553(a) factors and the “facts of this record.” (PgID 176).
Under these circumstances, the district court’s refusal to reduce Brim’s sentence by another four
months, the most reduction he was eligible to receive, is consistent with his original belowguidelines sentence. The district court gave a detailed analysis of the original sentence at the
sentencing hearing, and given the downward variance Brim had already received, that very
thorough explanation was sufficient to justify denying a sentence reduction without further
discussion. In sum, given the district court’s considerable analysis at the original sentencing, the
fact that the original sentence imposed was two years below the advisory guideline range and
four months longer than the very lowest end of the adjusted guideline range, the district court did
not abuse its discretion in denying the sentence reduction.
IV. CONCLUSION
Having carefully reviewed the record before us, we are not persuaded that the district
court abused its discretion in denying Brim a sentence reduction under § 3582(c). Accordingly,
we AFFIRM.

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