USA v. Richard Donaldson

Filing

OPINION filed : We AFFIRM the district court's judgment, decision not for publication. Martha Craig Daughtrey, Circuit Judge; Eric L. Clay, (Authoring) Circuit Judge and Deborah L. Cook, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0691n.06
No. 16-1329

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Dec 20, 2016
DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD JULIUS DONALDSON,

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

Defendant-Appellant.

BEFORE:

DAUGHTREY, CLAY, and COOK, Circuit Judges.

CLAY, Circuit Judge. Defendant, Richard Donaldson, petitioned the district court for a
reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2), which was granted on March 7,
2016. Donaldson now appeals, arguing that the district court abused its discretion when it elected
to reduce his sentence to 151 months rather than his requested term of 101 months. For the
reasons that follow, we AFFIRM the district court’s sentence.
BACKGROUND
On December 17, 2012, Richard Donaldson agreed to plead guilty to the charge of
conspiracy to possess with intent to distribute a quantity of methamphetamine in violation of
21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). Based on Donaldson’s baseline offense level,
criminal history, and other extenuating circumstances, the probation officer calculated a
guideline range of 292 to 365 months; but because this guideline range exceeded the statutory

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maximum of twenty years for the underlying offense, the probation officer issued a presentence
report recommending a prison sentence of 240 months. Prior to sentencing, the government
moved for a twelve month reduction based upon Donaldson’s substantial assistance, which was
granted by the district court. Consequently, Donaldson’s initial sentence was 228 months.
On November 6, 2015, the government moved for an additional seventy-two month
reduction to Donaldson’s sentence pursuant to Rule 35(b) of the Federal Rules of Criminal
Procedure, citing further substantial assistance on his part. The district court also granted this
motion and lowered Donaldson’s sentence to 156 months.
During Donaldson’s term of incarceration, the United States Sentencing Commission in
November 2014 retroactively amended USSG § 2D1.1(c), which specifies offense levels for drug
quantities. U.S. Sentencing Guidelines Manual, Supplement to Appendix C, Amendment 782
(2014). Donaldson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) in light of
Amendment 782. On January 4, 2016, the United States Probation Office filed a Sentence
Modification Report for Donaldson affirming his eligibility for the sentence modification and
recommended granting his motion. The report specified that as a consequence of Amendment
782, his initial guideline range should have been set at 235 to 240 months. Assuming a sentence
at the low end of the guideline range, the probation officer proceeded to credit all of Donaldson’s
reductions for substantial assistance, and proposed a new sentence of 151 months. Unsatisfied
with this proposed outcome, Donaldson filed a response requesting a reduction of his sentence to
101 months. The district court considered the recommendation and Donaldson’s argument and
ultimately decided to accept the sentence proposed by the probation officer and only lower
Donaldson’s sentence to 151 months. On March 18, 2016 Donaldson filed a timely notice of
appeal.

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DISCUSSION
Standard of Review
This Court reviews determinations granting or denying a sentence reduction pursuant to
18 U.S.C. § 3582(c)(2) for abuse of discretion. See United States v. Wilson, 651 F. App’x 489,
490 (6th Cir. 2016) (per curiam); United States v. Washington, 584 F.3d 693, 695 (6th Cir.
2009). A district court abuses its discretion when it relies on clearly erroneous factual findings,
improperly applies the law, uses an erroneous legal standard, or, in rare circumstances, when it
fails to adequately explain its decision. United States v. Howard, 644 F.3d 455, 458–59 (6th Cir.
2011).
Analysis
Generally speaking, once a court has imposed a sentence, it does not have the authority to
change or modify that sentence unless such authority is expressly granted by statute. United
States v. Houston, 529 F.3d 743, 748 (6th Cir. 2008). Section 3582(c)(2) expressly allows a
reduction “in the case of a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). The Sentencing Commission, however, must first incorporate an
amendment to a guideline sentencing range into its policy statement, found at U.S. Sentencing
Guidelines § 1B1.10, before a court may reduce a term of imprisonment based on that new
guideline range. In the present case, the U.S. Sentencing Commission has amended the
sentencing guidelines to reduce the base offense level related to § 2D1.1(c) of the Guidelines
though Amendment 782. Neither party disputes that Donaldson is eligible for a reduction under
Amendment 782. Therefore, the only issue we must decide on appeal concerns whether or not

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the district court abused its discretion during the course of calculating Donaldson’s new
sentence.
The U.S. Sentencing Commission has expressed that an amendment to the Guidelines
“seeks to isolate whatever marginal effect the since-rejected Guideline had on the defendant’s
sentence.” Freeman v. United States, 564 U.S. 522, 530 (2011). Therefore, as we previously
held, when modifying a sentence, “a court should substitute only the retroactive amendment and
leave all original guideline determinations in place.” United States v. Hammond, 712 F.3d 333,
335 (6th Cir. 2013) (per curiam). “The Commission has [further] instructed that, in determining
whether and to what extent a defendant should receive an authorized sentence reduction, the
district court must consider the § 3553(a) factors to the extent that they are applicable; must
consider the impact on public safety; and may consider the defendant’s post-sentencing
conduct.” United States v. Monday, 390 F. App’x 550, 554 (6th Cir. 2010) (emphasis added).
Normally, pursuant to 18 U.S.C. § 3582, a district court is not authorized to reduce a defendant’s
sentence below the amended Guidelines range. USSG § 1B1.10(b)(2)(A); Washington, 584 F.3d
at 701. However, an exception exists for defendants who receive a sentence reduction based on
substantial assistance. USSG § 1B1.10(b)(2)(B) (“If the term of imprisonment imposed was less
than the term of imprisonment provided by the guideline range applicable to the defendant at the
time of sentencing pursuant to a government motion . . . a reduction comparably less than the
amended guideline range determined under subdivision (1) of this subsection may be
appropriate”) (emphasis added). As noted by the commentary to the guidelines, “the sentencing
court has the discretion to determine whether, and to what extent, to reduce a term of
imprisonment under this section.” See USSG § 1B1.10, cmt. n.3 (emphasis added).

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The district court reduced Donaldson’s base offense level from thirty-two to thirty, while
preserving every other original guideline determination. The court concluded that a new
guideline range of 235 to 240 months was appropriate and decided—in its discretion, which it
was not obligated to exercise—to set Donaldson’s sentence at the minimum of the range. After
crediting Donaldson’s substantial assistance and reducing his sentence by the same eighty-four
months by which his original sentence was reduced, the district court set his new sentence at
151 months. Donaldson’s new sentence is now five months shorter than his previous sentence.
Nonetheless, Donaldson argues that he is entitled to an additional reduction that lowers his
sentence to 101 months. The basis for such an assertion is unclear. Donaldson appears to argue
that his initial baseline sentence was inappropriately calculated because it failed to properly
account for his cooperation with the government. To the extent we understand his argument to be
that his substantial assistance should have been factored into a reduction of his baseline offense
level rather than as a reduction to his actual sentence pursuant to the government’s Rule 35
motion and request for a reduction, such an argument is foreclosed to him on appeal.1
A district court does not have the ability, in considering a defendant’s motion for a
reduction pursuant to an amendment in the guidelines, to alter the original sentence in any
manner except by substituting the retroactive amendment and keeping all original guidelines
determinations in place. See Hammond, 712 F.3d at 335. In the present case, Donaldson requests
something the district court lacks the authority to accomplish. And because we see nothing

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Donaldson filed a supplemental brief arguing that the language of § USSG 1B1.10 requires the district
court to apply a methodology that achieves a fundamentally unfair result in his case. He cites no case law for this
proposition. Nor does he articulate a sufficient reason why this Court should reject the policies expressed in the
Guidelines, aside from the fact that his sentence would be shorter under a different methodology.

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otherwise improper in the manner by which the district court calculated Donaldson’s sentence,
we conclude that the district court did not abuse its discretion.2
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.

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In the last paragraph of his brief, Donaldson raises a final argument, stating that the guidelines provide
that a district court should consider the nature and seriousness of the danger to any person or the community that
may be imposed by a reduction, and may consider the post-sentencing conduct of the defendant. Donaldson offers
nothing further by way of his brief that explains his argument. Accordingly, we deem any such argument waived.
See Spirko v. Mitchell, 368 F.3d 603, 612 (6th Cir. 2004); United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)
(“It is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.”) (internal citations and quotations are omitted).

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