United States v. Edward Jones

Filing

OPINION FILED - THE COURT: James B. Loken, C. Arlen Beam and Lavenski R. Smith AUTHORING JUDGE:James B. Loken (PUBLISHED) [4444511] [15-2795]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2795
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Edward Jones
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 11, 2016
Filed: September 2, 2016
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Before LOKEN, BEAM, and SMITH, Circuit Judges.
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LOKEN, Circuit Judge.
Edward Jones appeals the district court’s1 denial of an 18 U.S.C. § 3582(c)(2)
sentence reduction based upon Sentencing Guidelines Amendment 782, which in
most cases retroactively reduced the drug quantity determination by two base offense

1

The Honorable Linda R. Reade, Chief Judge of the United States District
Court for the Northern District of Iowa.

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levels. See United States v. Thomas, 775 F.3d 982, 982-83 (8th Cir. 2014); U.S.S.G.
§ 1B1.10(d) and (e)(1).
On January 28, 2014, Jones pleaded guilty to one count of conspiracy to
distribute cocaine and crack cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B) and
846. At sentencing, the district court determined that his total offense level was 29
and his criminal history category was V, resulting in an advisory guidelines range of
140 to 175 months in prison. Jones and the government sought a two-level
downward variance in anticipation of the proposed Amendment 782. The court
denied a variance because the Amendment was not yet the law and imposed a 140month sentence, explaining:
Even if the guideline reduction were to go through . . . I think the
[offense level] would be 27, criminal history V, which I read as [a range
of] 120 to 150 months. Correct?
[AUSA] LIGHTFOOT: Yes, Your Honor.
THE COURT: So there is considerable overlap. After I analyzed
this case using the 3553(a) factors, I determined the sentence that is
sufficient but not greater than necessary to achieve the goals of
sentencing is a 140-month sentence. This would be my sentence even
if [Amendment 782 is] adopted by Congress and there’s a retroactive
imposition of this 2-level reduction. It wouldn’t change [the sentence]
at all . . . . And the reasons are pretty much as stated by Mr. Lightfoot.
We’ve got uncharged criminal conduct. . . . [A]t a minimum we have
felon in possession, and that wasn’t taken into account . . . . [I]f he’s
trafficking in firearms off the street, might even be a different charge
than felon in possession. . . . The quantity of drugs. The very
concerning conduct that he engaged in after he fled the jurisdiction; he
basically set himself up to continue to deal dope in Chicago . . . . Lastly,
his lack of respect for the law.

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In July 2015, acting on a report from the probation office, the district court
issued an Order stating that Jones “is eligible for a sentence reduction” under
§ 3582(c)(2) and U.S.S.G. § 1B1.10 because Amendment 782 was now in effect and
would reduce his amended guidelines range to 120 to 150 months in prison.
However, the district court denied a reduction, explaining:
[H]aving reviewed the defendant’s file, the provisions and commentary
of USSG §1B1.10, the factors set forth in 18 U.S.C. § 3553(a), the
nature and seriousness of the danger to any person or community that
may be posed by a reduction in the defendant’s term of imprisonment
and the defendant’s post-sentencing conduct, the court deems it
appropriate to exercise its discretion and to deny the defendant a
reduction that is permitted under 18 U.S.C. § 3582(c)(2) and USSG
§1B1.10. During the sentencing hearing, the court made clear that any
reduction related to Amendment 782 (subject to subsection (e)(1))
would not be warranted in light of aggravating factors, including but not
limited to the uncharged criminal conduct, the amount of drugs and the
lack of respect for the law. The court stands by its prior determination.
On appeal, Jones argues that the Supreme Court’s decision in Dillon v. United
States, 560 U.S. 817 (2010), “mandates” that a defendant eligible for a sentence
reduction under § 3582(c)(2) and § 1B1.10 is “entitled to the sentence as if the
amendment was allowed at the time of [initial] sentencing.” We disagree. In Dillon,
the Court explained that, when a defendant is eligible for a reduction, Ҥ 3582(c)(2)
instructs a court to consider any applicable § 3553(a) factors and determine whether,
in its discretion, the reduction authorized . . . is warranted in whole or in part under
the particular circumstances of the case.” Id. at 827. In other words, as we have often
stated, “§ 3582 does not entitle a defendant to a sentencing reduction.” United States
v. Van Osten, 639 F. App’x 393, 394 (8th Cir. 2016).
Alternatively, Jones argues that it “should be considered abuse of discretion”
when the district court initially sentences a defendant at the low end of the guidelines
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range and then maintains the same sentence after a two-level retroactive guidelines
amendment. Though there is surface logic to this contention, it misconstrues the
nature of a district court’s sentencing discretion. There is nothing illogical about a
district court concluding that the broadly stated § 3553(a) sentencing factors lead to
imposition of the same sentence, even if one of the complex advisory guidelines
determinants, here, drug quantity, has been amended. The district court fully
explained its reasons for reaching that conclusion in this case, both before and after
Amendment 782 became effective. Both times, the court examined all the § 3553(a)
factors, including drug quantity and various legitimate aggravating factors. It
concluded that a 140-month sentence was “sufficient but not greater than necessary
to achieve the goals of sentencing.” There was no abuse of discretion. Cf. United
States v. Hernandez-Marfil, 825 F.3d 410, 411-413 (8th Cir. 2016) (anticipating
Amendment 782, district court granted 7-month variance from bottom of range at
initial sentencing; no abuse of discretion to deny further reduction to bottom of
amended range when Amendment 782 became effective).
Finally, Jones argues the district court abused its discretion by basing its
decision in part on his post-sentence conduct because the probation office’s report did
not include any such information. This contention is without merit. It is the
defendant’s burden to establish that he warrants a § 3582(c)(2) reduction. The district
court may consider post-sentencing rehabilitation as warranting a reduction, so the
record often includes evidence of positive post-sentence conduct. Thus, the district
court may also consider the lack of positive post-sentence information in denying a
reduction.
The Order of the district court dated July 21, 2015, denying Jones a
§ 3582(c)(2) sentence reduction, is affirmed.
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