USA v. Jason Fowler

Filing

OPINION filed : AFFIRMED. Decision not for publication. Danny J. Boggs, Eric L. Clay (CONCURRING IN THE JUDGMENT), and Jeffrey S. Sutton (AUTHORING), Circuit Judges.

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0513n.06
Case No. 15-4087

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON G. FOWLER,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)

Sep 01, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

BEFORE: BOGGS, CLAY, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. For his part in a criminal conspiracy, a jury convicted Jason
Fowler of four crimes. He argues that the drug-distribution portion of his sentence should be
reduced in light of Guidelines Amendment 782. The district court denied Fowler’s request
because the controlling guidelines range was set by murder, not drug trafficking, depriving the
court of any discretion to alter the sentence. It added that it would not have reduced Fowler’s
sentence even if it had discretion to do so. Because the district court correctly found that Fowler
was not sentenced under the now-amended drug guidelines, we affirm.
A grand jury indicted Fowler and thirty-seven other members of the Outlaws Motorcycle
Club for an array of federal crimes. A jury convicted Fowler on all of the counts he faced:
(1) violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c);
(2) conspiracy to violate RICO, 18 U.S.C. § 1962(d); (3) conspiracy to engage in drug

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 2

Case No. 15-4087, United States v. Fowler
trafficking, 21 U.S.C. § 846; and (4) conspiracy to use a firearm during the commission of a drug
trafficking crime, 18 U.S.C. § 924(o). The predicate act for the first two counts was Fowler’s
participation in a robbery-murder. The predicate act for Count 3 was Fowler’s facilitation of
methamphetamine trafficking. Fowler was sentenced to a total of 396 months. On appeal, we
vacated the sentence because the district court thought, incorrectly, that it had to impose a
consecutive sentence for Count 4. United States v. Fowler, 535 F.3d 408, 422–23 (6th Cir.
2008).
At resentencing, Fowler’s 396 month sentence became a 348 month sentence: concurrent
240-month sentences for Counts 1 and 2, a 188-month sentence for Count 3 (108 to be served
consecutively), and a concurrent 120-month sentence for Count 4. United States v. Fowler,
450 F. App’x 494, 496 (6th Cir. 2011). The district court calculated Fowler’s sentence by
“grouping” the drug offense with Counts 1 and 2—the robbery-murder counts—because they
were part of a continuous conspiracy offense. See U.S.S.G. § 3D1.2(d). The guidelines provide
that, if a court groups counts into one offense level, it must apply the greater base offense level.
U.S.S.G. § 3D1.3(b). The highest offense level in this instance was 43 for first degree murder.
See U.S.S.G. §§ 2A1.1, 2E2.1(c)(1). That made 43 the base offense level for Fowler’s drug
count too. This generated a guidelines range of ten years to life for Count 3 alone, which became
the range the district court considered at resentencing.
In 2014, the U.S. Sentencing Commission retroactively revised the sentencing table for
offenses that fall under U.S.S.G. § 2D1.1, a guideline dealing with drug offenses. See United
States v. Smith, 814 F.3d 802, 803 (6th Cir. 2016) (per curiam). That revision made many drug
offenders eligible for sentencing reductions under 18 U.S.C. § 3582(c)(2), which gives district
courts discretion to revise sentences when new retroactive guidelines come into effect. Fowler

2

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 3

Case No. 15-4087, United States v. Fowler
thought he was one of those eligible drug offenders because he believed he had been sentenced
under § 2D1.1 on Count 3. In September 2015, he filed a motion for a sentence reduction. The
government opposed the reduction, pointing out that because of the grouping Fowler was
sentenced under § 2A1.1, not § 2D1.1, making him ineligible for the § 3582(c)(2) reduction.
The district court agreed with the government and denied Fowler’s motion, adding that even if
Fowler were eligible for the reduction the court would deny it for public safety reasons. Fowler
appealed.
The district court got it right. Section 3582(c)(2) permits a sentence reduction only “in
the case of a defendant who has been sentenced . . . based on a sentencing range that has been
subsequently lowered by the Sentencing Commission.” Fowler isn’t one of those defendants.
Because Fowler’s drug and murder convictions were grouped together, his drug sentence was
“based on” the murder guideline range set by § 2A1.1. That necessarily means that his sentence
was not “based on” the drug guidelines table that Amendment 782 altered. The district court
therefore lacked the authority to reduce Fowler’s sentence under § 3582(c)(2) even if it had
wanted to.
There was some discussion at oral argument about whether Fowler’s guidelines range
may have been calculated incorrectly at resentencing due to a misapplication of the grouping
rules. Any potential error on that score did not become apparent until the district court explained
the basis of Fowler’s drug sentence in its order denying a sentence reduction. But the parties
agree that our current procedural posture—an appeal of an order under § 3582—means we need
not and may not address this issue. Any correction, if any correction is warranted, would have to
come via a motion under 28 U.S.C. § 2255.
For these reasons, we affirm.

3

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 4

Case No. 15-4087, United States v. Fowler
CLAY, Circuit Judge, concurring in the judgment only. The history of this case,
which is now on its third appeal to this Court, is far too rife with legal error to warrant a
conclusion that the district court “got it right” when it denied defendant Jason Fowler’s
18 U.S.C. § 3582(c)(2) motion on the grounds that he was ineligible for a sentence reduction.
However, because it was not an abuse of discretion for the district to deny Fowler’s § 3582
motion on the alternative ground that even if Fowler were eligible for a sentence reduction, he
“presents a significant public safety concern” that weighs against reducing his sentence, I concur
in the judgment affirming the district court.
As indicated in the majority opinion, in 2003, Fowler was one of 38 members of the
Outlaws Motorcycle Club indicted on various federal charges in the United States District Court
for the Northern District of Ohio. In 2004, an anonymous jury convicted Fowler of:
(1) [A] substantive . . . offense [under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”)], in violation of 18 U.S.C. §§ 1962(c), 1963(a)
[(“Count 1”); (2) RICO conspiracy, in violation of 18 U.S.C. § 1962(d)
[(“Count 2”); (3) conspiracy to distribute a controlled substance, in violation of 21
U.S.C. § 846 [(“Count 3”)]; and (4) conspiracy to use or carry a firearm during
the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(o)
[(“Count 4”)].
United States v. Fowler (“Fowler I”), 535 F.3d 408, 411, 413 (6th Cir. 2008). Count 1, the
substantive RICO charge, encompassed four predicate acts, one of which was aiding in the
robbery-murder of Charles Hurst, an Indiana resident.1 Id. at 413. Fowler was sentenced to a
total of 396 months in prison. Id.
Fowler appealed, and this Court vacated his sentence on the grounds that the district court
had “subjected Fowler to a consecutive and mandatory sentence” on Count 4 that “[wa]s not
mandated by the [applicable] statute.” Id. at 422–23. On remand for resentencing, the district

1

Fowler pleaded guilty to aiding in voluntary manslaughter in Indiana state court based on his role in
Hurst’s murder. Fowler, 535 F.3d at 413.

4

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 5

Case No. 15-4087, United States v. Fowler
court imposed: (1–2) concurrent 240-month sentences on Counts 1 and 2; (3) a 188-month
sentence on Count 3, of which 108 months were to be served consecutively to the 240-month
sentences; and (4) a concurrent 120-month sentence on Count 4.

United States v. Fowler

(“Fowler II”), 450 F. App’x 494, 496 (6th Cir. 2011). We affirmed the total sentence of 348
months’ imprisonment as procedurally and substantively reasonable. Id. at 496–98.
In September 2015, Fowler filed the § 3582 motion underlying this appeal, arguing that
his sentence should be reduced under Amendment 782 to the United States Sentencing
Guidelines because his drug-trafficking conviction on Count 3 was now subject to a lower base
offense level and, as a result, a lower sentencing guidelines range. The government filed a
written response opposing Fowler’s motion, asserting that he was ineligible for a sentence
reduction because his base offense level and resulting guidelines range for Count 3 were not
calculated under USSG §2D1.1—the guideline governing certain drug-related offenses and
affected by Amendment 782—but instead resulted from his substantive RICO conviction on
Count 1 and the sentencing guideline for first-degree murder—USSG §2A1.1. On appeal, the
government articulates this argument as follows: “[Fowler’s] guidelines calculation did not
change because there was no separate computation for Count 3, as Counts 1 through 3 were
grouped under [USSG] §3D1.2(d).” Appellee’s Br. at 15. For the following reasons, such
grouping—which was originally provided for in the presentence report (“PSR”)—was erroneous.
Certain offenses are explicitly excluded from the guidelines’ grouping procedure under
USSG § 3D1.2. See United States v. Morgano, 39 F.3d 1358, 1379–80 (7th Cir. 1994) (“Not
every offense . . . is subject to [§3D1.2’s] grouping procedure and some, in fact, are specifically
excluded.”). First-degree murder under USSG § 2A1.1 is one of the offenses excluded from
grouping. See USSG §3D1.2 (1990) (stating that “all offenses in Chapter Two, Part A” are to be

5

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 6

Case No. 15-4087, United States v. Fowler
excluded from the operation of §3D1.2’s grouping scheme); United States v. Horton, 693 F.3d
463, 477 (4th Cir. 2012) (noting that §3D1.2 “specifically forbids the grouping of homicide
offenses and other violent offenses,” including those listed under Chapter Two, Part A). Thus,
contrary to the government’s arguments, as well as the district court’s and the majority’s
conclusions, it was error for the district court to group Counts 1 and 3 at Fowler’s original
sentencing.

Consequently, it was also error for the district court to find that Fowler was

ineligible for a sentence reduction based on the erroneous grouping of his offenses.
And although it is largely tangential to the issue raised in this appeal, the PSR contained
yet another error worth mentioning.

Specifically, the PSR stated, and the district court

concluded, that Fowler’s conviction on Count 1 was subject to a 20-year maximum sentence.
Fowler II, 450 F. App’x at 496. However, at the time of sentencing, the base offense level
attributable to first-degree murder under §2A1.1 was 43, resulting in a maximum sentence of life
imprisonment. See USSG §2A1.1 (2002); USSG Ch. 5, Part A, Sentencing Table (1992).
Further, 18 U.S.C. § 1963 provided that “[w]hoever violates any provision of [18 U.S.C. § 1962]
shall be . . . imprisoned not more than 20 years (or for life if the violation is based on a
racketeering activity for which the maximum penalty includes life imprisonment).” 18 U.S.C.
§ 1963(a) (1990) (emphasis added). At the time of Fowler’s trial, one of his predicate acts for
Count 1—murder in violation of Ind. Code § 35-42-1-1(2) (2001)—was punishable by a term of
years, life imprisonment without parole, or death. See Ind. Code § 35-50-2-3 (2002). Thus,
contrary to the PSR’s representation and the district court’s conclusion, the maximum sentence
for Count 1 was not 20 years, but life imprisonment. See United States v. Johnson, 440 F.3d
832, 838 (6th Cir. 2006) (“RICO carries a statutory-maximum sentence of 20 years. But if the
jury finds that the defendant committed a predicate act that carries a maximum penalty of life

6

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 7

Case No. 15-4087, United States v. Fowler
imprisonment, the court can issue a sentence of life imprisonment for a RICO conviction.”)
(internal citation omitted).
Finally, the majority’s proposed remedy for correcting the errors contained in the PSR2
and compounded at sentencing—the filing of a motion pursuant to 28 U.S.C. § 2255—is a
non-starter. Although the majority opines that the grouping error in particular “did not become
apparent” until the district court denied Fowler’s § 3582 motion, such an argument assumes that
defense counsel, the prosecution, the district court, and the two panels of this Court that reviewed
Fowler’s prior appeals were all incapable of comprehending and/or applying a straightforward
guidelines provision that prohibits grouping of “all offenses in Chapter Two, Part A,” including
murder under USSG §2A1.1.

See USSG §3D1.2 (1990).

Thus, the majority’s apparent

contention that the grouping error was somehow undetectable during the approximately eleven
years between Fowler’s sentencing and the district court’s denial of his § 3582 motion is
unpersuasive. Further, § 2255 includes a one-year statute of limitations that runs from the latest
of several dates, including “the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4).
Because the facts underlying the aforementioned sentencing errors could have been discovered
through the exercise of due diligence upon review of the PSR, i.e., before Fowler was sentenced,
and because the other dates from which the one-year statute of limitations may run either
(a) came and went well over a year ago or (b) are inapplicable, any § 2255 motion filed by
Fowler would almost certainly be barred by the statute of limitations. See 28 U.S.C. § 2255(f).

2

To reiterate, there were at least three errors in the PSR that affected Fowler’s sentence: (1) the imposition
of a mandatory consecutive sentence on Count 4, which this Court corrected in Fowler’s direct appeal, see Fowler I,
535 F.3d at 422–23; (2) the grouping of Counts 1 and 3—an error on which the government and the majority
continue to rely; and (3) the imposition of a 20-year maximum sentence as to Count 1, an error which undoubtedly
inured to Fowler’s benefit.

7

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 8

Case No. 15-4087, United States v. Fowler
Nonetheless, for the reasons stated below, the district court’s denial of Fowler’s § 3582 motion
should be affirmed.
As an alternative to its conclusion that Fowler was ineligible for a sentence reduction
under § 3582—a decision that this Court is charged with reviewing de novo, United States v.
McClain, 691 F.3d 774, 776–77 (6th Cir. 2012)—the district court held that even if Fowler were
eligible for a sentence reduction under Amendment 782, the court would deny his motion
because he “presents a significant public safety concern.” (R. 2253, PageID# 7214). We review
this alternative ground for an abuse of discretion. See United States v. Doe, 731 F.3d 518, 522
(6th Cir. 2013).
Fowler’s only arguments in support of concluding that the district court abused its
discretion are that: (1) the district court previously reduced his sentence following remand based
on his positive post-sentencing conduct and, ostensibly, should have done so once more; and
(2) the district court failed to distinguish its denial of Fowler’s § 3582 motion from its decisions
granting the § 3582 motions filed by his co-defendants. However, the district court was not
required to consider Fowler’s post-sentencing conduct in adjudicating his § 3582 motion, United
States v. Greenwood, 521 F. App’x 544, 547 (6th Cir. 2013) (citing USSG §1B1.10 cmt.
n.1(B)(iii)), and Fowler cites no authority for his apparent position that the district court should
have adjudicated his § 3582 motion in the same manner as those of his co-defendants.3 Further,
this Court has consistently affirmed denials of § 3582 motions based on public safety
considerations under USSG §1B1.10 cmt. n.1(B)(ii), see, e.g., United States v. Lucas, 636 F.
App’x 296, 300 (6th Cir. 2016); United States v. Heath, 636 F. App’x 273, 276 (6th Cir. 2016);

3

As pointed out by the government, 18 U.S.C. § 3553(a)(6), which provides for some consideration of the
disparities between sentences imposed as to different defendants, “concerns national disparities between defendants
with similar criminal histories convicted of similar criminal conduct—not disparities between codefendants.” United
States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008) (emphasis in original).

8

Case: 15-4087

Document: 19-2

Filed: 09/01/2016

Page: 9

Case No. 15-4087, United States v. Fowler
Greenwood, 521 F. App’x at 548–49; United States v. Nesbit, 420 F. App’x 541, 545–46 (6th
Cir. 2011), and public safety is a factor that the district courts are required to consider in
adjudicating a § 3582 motion, Greenwood, 521 F. App’x at 547.

Fowler’s conviction on

Count 1, which encompassed the predicate act of murder, presents a particularly compelling case
for the denial of § 3582 motion based on public safety concerns. See United States v. Dewitt,
385 F. App’x 479, 480, 483 (6th Cir. 2010) (affirming the district court’s denial of the
defendant’s § 3582 motion based on his “participat[ion] in two murders as a part of his drug
activities”).
“Section 3582 does not create a right to a reduced sentence,” United States v. Curry,
606 F.3d 323, 330 (6th Cir. 2010) (emphasis in original), and Fowler’s violent history provides
sufficient justification for declining to reduce his sentence under § 3582. Because the district
court’s alternative basis for denying Fowler’s § 3582 motion was not an abuse of discretion,
I concur in the judgment.

9