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Date: 09-04-2021
Case Style:
United States of America v. VINCE EDWARD WILSON
Case Number: 20-50015
Judge: PER CURIAM
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Meryl Holt (argued), Assistant United States Attorney; L.
Ashley Aull, Chief, Criminal Appeals Section; Nicola T.
Hanna, United States Attorney
Defendant's Attorney:
Description:
St. Louis, MO - Criminal defense lawyer represented defendant with eleven counts related to the importation and sale of a controlled substance (Counts 1–11); one count of possession of a firearm in furtherance of a drug trafficking crime charge.
In December 2005, Wilson was convicted of eleven
counts related to the importation and sale of a controlled
substance (Counts 1–11); one count of possession of a
firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(c) (Count 12), and one count of being a
felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count
13).
The Presentence Report (PSR) prepared for the district
court grouped Counts 1–11 with Count 13.1 Under the
Sentencing Guidelines, when counts are grouped together,the
offense level applicable to the group is “the highest offense
level of the counts in the Group.” U.S.S.G. § 3D1.3(a).
Following this rule, the PSR used the applicable offense level
1 Counts are grouped “[w]hen one of the counts embodies conduct
that is treated as a specific offense characteristic in . . . the guideline
applicable to another of the counts.” U.S. Sent’g Guidelines Manual
§ 3D1.2(c) (Nov. 2005). Possessing “a dangerous weapon (including a
firearm)” is one such “specific offense characteristic[]” for a drug
importation offense. U.S.S.G. § 2D1.1(b)(1).
UNITED STATES V. WILSON 7
for Counts 1–11, see id. § 2D1.1, because it is higher than
that for Count 13, see id. § 2K.2.1. Applying the Drug
Quantity Table in § 2D1.1(c)(2), the PSR calculated an
offense level of 36 for the quantity of drugs involved in
Counts 1–11. § 2D1.1(c)(2). The PSR also applied a 2-level
increase to the offense level because Wilson “was an
organizer, leader, manager, or supervisor in [the] criminal
activity.” § 3B1.1(c). The total offense level was thus 38.
The PSR determined that Wilson was in Criminal History
Category III. Therefore, the Guidelines sentencing range for
Counts 1–11 and 13 was 292–365 months imprisonment. For
Count 12, the statutory mandatory minimum sentence was
60 months, applied consecutively. 18 U.S.C.
§ 924(c)(1)(A)(i); U.S.S.G. § 5G1.2(e). Therefore, the PSR
calculated the Guidelines sentencing range for all counts as
352–425 months.
At Wilson’s sentencing in 2006, the district court (then
Judge Takasugi) relied on the calculations set out in the PSR.
For the grouped Counts 1–11 and 13, Judge Takasugi chose
to sentence Wilson to 292 months, the low end of the range.
But this low-end number exceeded the statutory maximum
sentence of 240 months for each of Counts 1–11. Under the
Guidelines, “[i]f the sentence imposed on the count carrying
the highest statutory maximum is less than the total
punishment, then the sentence imposed on one or more of the
other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total
punishment.” U.S.S.G. § 5G1.2(d). Following this direction,
the court sentenced Wilson to 240 months on each of Counts
1–11, to be served concurrently, and 52 months on Count 13,
to be served consecutively, for a total of 292 months (the lowend of the Guidelines range). Finally, for Count 12, the court
sentenced Wilson to the statutory minimum of 60 months, to
8 UNITED STATES V. WILSON
be served consecutively. 18 U.S.C. §924(c)(1)(A)(i);
U.S.S.G. § 5G1.2(e) (“[T]he sentence to be imposed on the
18 U.S.C. § 924(c) . . . count shall be imposed to run
consecutively to any other count.”). Wilson’s total sentence
was therefore 352 months.
In 2014, Congress approved Amendment 782 to the
Sentencing Guidelines, which retroactively amended the
Drug Quantity Table, U.S.S.G. § 2D1.1(c), thereby reducing
by two levels the offense levels assigned to specified
quantities of drugs. In Wilson’s case, this meant that the
Drug Quantity Table now showed an offense level of 34,
instead of 36, for the quantity of drugs involved in Counts
1–11, making him eligible for a sentence modification under
18 U.S.C. § 3582(c)(2).2
The following year, the government and the Office of the
Federal Public Defenders (FPD) entered into a joint
stipulation asking the district court (now Judge Hatter) to
appoint the FPD to represent a specified list of defendants,
including Wilson, and to reduce their sentences under
2
18 U.S.C. § 3582(c)(2) provides:
The court may not modify a term of imprisonment once
it has been imposed except that— . . . (2) 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 . . . , upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion,
the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to
the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by
the Sentencing Commission.
UNITED STATES V. WILSON 9
§ 3582(c)(2) as a result of Amendment 782.3 As for Wilson’s
sentence, the parties stipulated that the base offense level
should be reduced from 36 to 34. Adding the two-level
increase under § 3B1.1(c) (for being an organizer, leader,
manager or supervisor), the reduced total offense level was 36
(rather than 38) and the reduced Guidelines range was
235–293 months. Based on this reduction, the parties asked
for Wilson’s sentence to be modified to 235 months on each
of Counts 1–11, to be served concurrently, 52 months on
Count 13, to be served consecutively (adding up to
287 months on the grouped Counts 1–11 and 13), and
60 months on Count 12 to be served consecutively, for a total
of 347 months. Judge Hatter reduced Wilson’s sentence
exactly as requested in the stipulation.
3 Wilson does not claim that the FPD failed to discharge its ethical
obligation to consult with him regarding his first § 3582(c)(2) motion, and
there is no evidence in the record that the FPD violated this duty. In the
absence of evidence in the record, we assume that the FPD conducted
itself ethically. See Cal. Rules of Professional Conduct, rule 1.2(a) (“[A]
lawyer shall abide by a client’s decisions concerning the objectives of
representation and . . . shall reasonably consult with the client as to the
means by which they are to be pursued.”). In arguing that the FPD did not
communicate with Wilson about the stipulation, and that Wilson did not
learn of the stipulation until after the district court entered its order, the
dissent relies on a factual allegation made by Wilson’s attorney in oral
argument, unsupported by evidence in the record. Dissent at 29 & n.4.
Such attorney argument does not constitute evidence. See CarrilloGonzalez v. I.N.S., 353 F.3d 1077, 1079 (9th Cir. 2003). Finally, the
dissent’s argument that the district court did not appoint the FPD to seek
a plenary resentencing for Wilson, Dissent at 29 n.4, is irrelevant. The
Supreme Court has made clear that Congress intended § 3582(c)(2) “to
authorize only a limited adjustment to an otherwise final sentence and not
a plenary resentencing proceeding.” Dillon v. United States, 560 U.S.
817, 826 (2010). What is significant, however, is that the “limited
adjustment” in this case affected all of the grouped counts.
10 UNITED STATES V. WILSON
Three years later, in 2018, Wilson filed a motion for
reconsideration of the court’s sentence modification order.
According to Wilson, to accomplish Amendment 782’s “full
2-point deduction,” Judge Hatter should have given him the
low end of the new Guidelines range (235 months) for Counts
1–11 and 13, plus 60 months mandated for Count 12, for a
total of 295 months instead of 347 months. Judge Hatter
denied the motion. He reasoned that “[b]ecause Amendment
782 served only to reduce the total base offense level of the
drug convictions, Amendment 782 had no effect on the
sentence[] based on [Count 13].” Although Wilson appealed
this denial of his motion for reconsideration, his appeal was
subsequently dismissed for failure to prosecute.4
In October 2019, Wilson filed a second motion for
sentence modification under § 3582(c). Wilson argued that
Judge Hatter had erred in modifying his sentence in 2015
because Judge Hatter reduced his sentence only on Counts
1–11, and failed to reduce the sentence on Count 13, even
though Wilson was eligible for a reduction on that count as
well. According to Wilson, Judge Hatter failed to realize that
Judge Takasugi had allocated 52 months to Count 13 only
because the low end of the Guidelines range for the grouped
Counts 1–11 and 13 exceeded the statutory maximum
sentence of 240 months for Counts 1–11. After Amendment
782, the low end of the Guidelines range was less than the
statutory maximum for Counts 1–11, and so there was no
need to allocate 52 months to Count 13 to run consecutively.
4
In 2018, Wilson also filed a Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C § 2255, claiming, among other things, that the
PSR miscalculated his recommended Guidelines range and that the
consecutive sentences for Counts 12 and 13 violated double jeopardy.
Judge Hatter denied the motion on timeliness grounds.
UNITED STATES V. WILSON 11
In order to effectuate Judge Takasugi’s intent to sentence
Wilson to a low-end guideline sentence, Wilson argued,
Judge Hatter should modify his current term of imprisonment
so that the 52-month sentence for Count 13 ran concurrently
with his sentence on Counts 1–11. In effect, Wilson argued
that Judge Hatter erred by failing to give him the low-end of
the amended Guidelines range in 2015 as Judge Takasugi
originally did in 2006, and should correct that error in a
second sentence modification in 2019. The government
opposed the motion.
Judge Hatter denied Wilson’s motion for a sentence
modification. The court reviewed Wilson’s conviction, his
original sentence imposed in 2006, his resentencing in 2015,
and his 2018 motion for reconsideration. The court
acknowledged that “Amendment 782 increased the drug
quantity thresholds for most of the base offense levels of
§ 2D1.1’s Drug Quantity Table, which, consequently,
lowered the sentencing ranges for some individuals’ drug
convictions.” However, the court held that “Wilson points to
no authority . . . that supports the proposition that
Amendment 782’s changes to the drug quantity thresholds of
§ 2D1.1 had any effect on his firearm conviction,” and
therefore rejected Wilson’s argument that he was entitled to
a reduction of his firearm-related sentence (Count 13)
because it was grouped with his drug convictions and
therefore was based on the Drug Quantity Table. Further,
citing United States v. Dunn, 728 F.3d 1151, 1158–1160 (9th
Cir. 2013), Judge Hatter stated that “even assuming,
arguendo, that Wilson is eligible for a sentence reduction on
his [firearm] conviction under Amendment 782, the Court,
having considered the factors set forth in 18 U.S.C. § 3553
and, inter alia, the nature of Wilson’s crimes, declines to
exercise its discretion to resentence him.”
12 UNITED STATES V. WILSON
Wilson now appeals the district court’s denial of his
motion for a second sentence modification under § 3582(c).
He argues that Judge Hatter erred in concluding he lacked
authority to reduce the sentence for Count 13, and, according
to Wilson, this error tainted his discretionary denial of
Wilson’s motion. Wilson also contends that Judge Hatter
procedurally erred by failing to provide a sufficient
explanation for denying Wilson’s motion, see 18 U.S.C.
§ 3553(a). Finally, Wilson argues that the denial of his
motion rendered his sentence substantively unreasonable.
II
We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291. We review a district court’s discretionary
denial of a motion for sentence modification under
§ 3582(c)(2) for abuse of discretion. United States v. Colson,
573 F.3d 915, 916 (9th Cir. 2009). “A district court may
abuse its discretion if it does not apply the correct law or if it
rests its decision on a clearly erroneous finding of material
fact.” United States v. Lightfoot, 626 F.3d 1092, 1094 (9th
Cir. 2010) (citation omitted). Although it is an open question
whether Wilson is currently serving a term of imprisonment
that is based, even in part, on a sentencing range that has
subsequently been lowered by Amendment 782, cf.
Concurrence at 20–22; Dissent at 38–42, for purposes of this
appeal we assume without deciding that Wilson is eligible to
seek relief under § 3582(c)(2).
A
We begin with Wilson’s argument that Judge Hatter erred
in stating that there is no authority “that supports the
proposition that Amendment 782’s changes to the drug
UNITED STATES V. WILSON 13
quantity thresholds of § 2D1.1 had any effect on his firearm
conviction,” and that this error tainted his exercise of
discretion in denying the motion for a sentence modification.
To determine whether an amendment that affects the count
with the highest offense level (Counts 1–11 here) is also
deemed to affect other grouped counts (Count 13 here), such
that the sentence for all the counts are deemed to be “based
on a sentencing range that has subsequently been lowered by
the Sentencing Commission” for purposes of § 3582(c)(2),
we look to whether “the sentencing range in question was a
relevant part of the analytic framework the judge used to
determine the sentence.” See United States v.
Aguilar-Canche, 835 F.3d 1012, 1017 (9th Cir. 2016)
(cleaned up) (holding that the Guidelines range for the
combined offenses was not a relevant part of the analytic
framework for the sentence because the district court applied
the statutory minimum sentence to each charge). We have
not previously addressed this precise issue. And we need not
address it here, because in exercising his discretion to deny
Wilson’s second § 3582(c) motion, Judge Hatter assumed for
the sake of argument that Wilson was eligible for a sentence
reduction on Count 13 under Amendment 782. Given Judge
Hatter’s consideration of the applicable factors under
§ 3553(a), as explained below, even if Judge Hatter had erred
in his view regarding the effect of Amendment 782 on the
firearm offense, any such error was harmless. See United
States v. Munoz-Camarena, 631 F.3d 1028, 1030 & n.5 (9th
Cir. 2011) (per curiam) (noting that a district court’s
sentencing error is harmless if it performs the sentencing
analysis under the correct, as well as incorrect Guidelines
range).
14 UNITED STATES V. WILSON
B
We therefore turn to Wilson’s second argument that Judge
Hatter failed to provide a sufficient explanation of his reasons
for denying Wilson’s motion to modify his sentence. The
Supreme Court has recently provided some guidance on how
we should evaluate the adequacy of a court’s reasons for
modifying a sentence. See Chavez-Meza v. United States,
138 S. Ct. 1959, 1965 (2018).
In Chavez-Meza, the district court initially sentenced a
defendant to a sentence at the bottom of the Guidelines range.
Id. at 1966. After Amendment 782 to the Guidelines lowered
the relevant range, the defendant “asked the judge to reduce
his sentence to . . . the bottom of the new range,” but the
judge reduced the defendant’s sentence to a midway point
instead. Id. at 1967. The judge entered his order on a
“barebones form” that certified that the judge had considered
the defendant’s motion and taken into account the § 3553(a)
factors and relevant Guidelines policy statement, but
otherwise provided no explanation. Id. at 1965, 1967.
Chavez-Meza first acknowledged the government’s
argument that while a court has a statutory requirement to
“state in open court the reasons for its imposition of the
particular sentence” at the initial sentencing, 18 U.S.C.
§ 3553(c), no similar requirement is imposed at a
resentencing under § 3582(c)(2). Chavez-Meza, 138 S. Ct.
at 1965, 1967. But instead of addressing this argument,
Chavez-Meza “assum[ed] (purely for argument’s sake) [that]
district courts have equivalent duties when initially
sentencing a defendant and when later modifying the
sentence.” Id.
UNITED STATES V. WILSON 15
Making this assumption arguendo,Chavez-Meza held that
the court’s brief explanation was adequate. In reaching this
conclusion, the Court held there was no presumption that a
judge who picked the low range of a Guidelines sentence at
the initial sentencing would also pick the low range at the
resentencing. Id. at 1966. The Court next held that the length
or brevity of the explanation provided by a judge at
resentencing is mostly left to “the judge’s own professional
judgment.” Id. (cleaned up). Finally, the Court ruled that a
judge’s explanation provided at resentencing must be
considered in light of the initial sentencing, including the
court’s awareness of the defendant’s arguments, its
consideration of the relevant sentencing factors, and the
intuitive reason for picking a particular sentence. Id.
at 1966–68. The Court concluded that the judge’s
explanation in that case, which consisted solely of conclusory
statements on a pre-printed form, “fell within the scope of the
lawful professional judgment that the law confers upon the
sentencing judge.” Id. at 1968.
In short, under Chavez-Meza, even assuming that a
district court needs to provide an on-the-record explanation
of its reasons for imposing a particular sentence in a
resentencing proceeding under § 3582(c)(2), a minimal
explanation is adequate in light of the deference due to the
judge’s professional judgment and the context of a particular
case.
Applying this standard, we conclude that Judge Hatter
provided an adequate explanation for denying Wilson’s
motion to modify his term of imprisonment so that the
52-month sentence for Count 13 ran concurrently with his
sentence for Counts 1–11. Chavez-Meza, 138 S. Ct. at 1966.
Assuming arguendo that Wilson was eligible for a further
16 UNITED STATES V. WILSON
sentence modification in 2019, Judge Hatter stated that he
would decline to exercise his discretion to modify Wilson’s
sentence in light of “the factors set forth in 18 U.S.C. § 3553
and, inter alia, the nature of Wilson’s crimes.” We consider
this explanation in light of the initial sentencing and “the
intuitive reason[s]” why the district court may have made its
sentencing determination. Id. at 1967. Because Judge Hatter
had presided over Wilson’s first motion for sentence
modification, his motion for reconsideration, and his § 2255
motion challenging his sentence, Judge Hatter was well
familiar with Wilson’s crimes and arguments. Wilson’s
crimes were significant, and he had received a 2-level
enhancement due to his involvement as “an organizer, leader,
manager, or supervisor in [the] criminal activity.” U.S.S.G.
§ 3B1.1(c). Such culpability provides an “intuitive reason”
for the court’s decision to deny the motion for a sentence
reduction, Chavez-Meza, 138 S. Ct. at 1967. Moreover,
Judge Hatter stated that he had considered the § 3553(a)
factors. See id. at 1964–65 (approving a court’s explanation
as sufficient when it certified that it had “considered
petitioner’s motion and had taken into account the § 3553(a)
factors” (cleaned up)). Giving due deference to Judge
Hatter’s professional judgment, we conclude that Judge
Hatter’s “statement of reasons was brief but legally
sufficient,” and fell easily within the scope of “the judge’s
own professional judgment.” Rita v. United States, 551 U.S.
338, 339, 356, 358 (2007); see also Chavez-Meza, 138 S. Ct.
at 1967–68. The dissent attempts to distinguish Chavez-Meza
because Judge Hatter “denied all relief” when he denied
Wilson’s second § 3582(c)(2) motion, whereas the district
court in Chavez-Meza “grant[ed] substantial but not all
relief.” Dissent at 45. But there is no basis for the dissent’s
suggestion that a district judge must provide a longer or
shorter explanation depending on the amount of relief
UNITED STATES V. WILSON 17
granted. Dissent at 44–45. Rather, Chavez-Meza made clear
that we defer to “the judge’s own professional judgment,”
138 S. Ct. at 1966 (quoting Rita, 551 U.S. at 356), in
determining whether the judge’s explanation was adequate.
C
Wilson also argues that the district court’s denial of his
motion is substantively unreasonable. We review the
substantive reasonableness of a sentence imposed by the
district court “under an abuse-of-discretion standard,” Gall v.
United States, 552 U.S. 38, 51 (2007), “and will provide
relief only in rare cases,” United States v. Ressam, 679 F.3d
1069, 1088 (9th Cir. 2012) (en banc). Reversal is “not
justified simply because this court thinks a different sentence
is appropriate. Rather, this court should only vacate a
sentence if the district court’s decision not to impose a lesser
sentence was illogical, implausible, or without support in
inferences that may be drawn from the facts in the record.”
United States v. Laurienti, 731 F.3d 967, 976 (9th Cir. 2013)
(cleaned up). “Although we do not automatically presume
reasonableness for a within-Guidelines sentence, in the
overwhelming majority of cases, a Guidelines sentence will
fall comfortably within the broad range of sentences that
would be reasonable in the particular circumstances.” Id.
(cleaned up).
Wilson argues that his sentence is substantively
unreasonable because his current term of imprisonment
(52 months for Count 13 plus 235 months for Counts 1–11)
is not at the low end of the applicable range for the grouped
counts, unlike the term Judge Takasugi originally imposed in
2006. Because the nature of Wilson’s offense had not
changed since 2006, and there was evidence of his efforts to
18 UNITED STATES V. WILSON
rehabilitate himself since that time, Wilson claims there was
no reason for Judge Hatter to impose anything other than a
low-end sentence. According to Wilson, Judge Hatter was
substantively unreasonable in declining to modify the
sentence so the 52 month term for Count 13 would run
concurrently with the sentence on Counts 1–11.
We disagree. Wilson fails to recognize that it was within
Judge Hatter’s discretion to conclude that a 287-month
sentence for the grouped Counts 1–11 and 13 was
appropriate. As the Supreme Court explained in ChavezMeza, there is no presumption that Judge Hatter would take
the same approach in the § 3582(c) proceeding as that taken
by Judge Takasugi in the original sentencing and “choose a
point within the new lower Guidelines range that is
proportional to the point previously chosen in the older higher
Guidelines range.” 138 S. Ct. at 1966 (cleaned up). The 287-
month termthat Judge Hatter imposed for the grouped Counts
1–11 and 13 is within the applicable Guidelines range of
235–293 months.5 Moreover, the parties had stipulated to the
range Judge Hatter imposed, which further undercuts any
5 After Amendment 782, the applicable Guidelines range for the
grouped Counts 1–11 and 13 is 235–293 months. Under the Guidelines,
the offense level applicable to the most serious of the counts comprising
the group is the offense level applicable to the entire group. U.S.S.G.
§ 3D1.3(a). The parties do not argue that Judge Hatter applied an
incorrect Guidelines range in 2015 for the entire group, and the new term
of 287 months is within the range. Therefore, Wilson’s reliance on
Munoz-Camarena, 631 F.3d 1028, and United States v. Trujillo, 713 F.3d
1003 (9th Cir. 2013), is misplaced, because the district court in
Munoz-Camarena applied the incorrect range, 631 F.3d at 1029–30, and
the district court in Trujillo imposed a sentence outside of the Guidelines
range, 713 F.3d at 1005.
UNITED STATES V. WILSON 19
argument that taking the agreed-upon approach was an abuse
of discretion.
Nor was Judge Hatter required to give more weight to
Wilson’s rehabilitative efforts in prison than to the nature of
Wilson’s offense conduct. “The weight to be given the
various factors in a particular case is for the discretion of the
district court.” United States v. Gutierrez-Sanchez, 587 F.3d
904, 908 (9th Cir. 2009). Wilson argues that the district court
erred because the Guidelines already took into account the
aggravating circumstances of Wilson’s offense, but as we
have pointed out, “there is nothing under § 3553(a), or any
other provision, which barred the district court from
considering” factors that were “fully accounted for” by the
Guidelines calculations in deciding whether to grant or deny
a reduced sentence. Dunn, 728 F.3d at 1158–59.
In short, this is one of “the overwhelming majority of
cases,” wherein a within-Guidelines sentence “fall[s]
comfortably within the broad range of sentences that would
be reasonable in the particular circumstances.” Laurienti,
731 F.3d at 976 (cleaned up). Again, we have recognized that
“a Guidelines sentence ‘will usually be reasonable.’” United
States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (quoting
Rita, 551 U.S. at 338). We therefore conclude that the district
court’s denial of Wilson’s motion was not substantively
unreasonable.
Outcome: AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: