United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3523

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brandon Thompson

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 15-2144

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brandon Thompson

lllllllllllllllllllll Defendant - Appellant

____________

Appeals from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: November 16, 2015

 Filed: March 28, 2016

[Unpublished] 

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Before SMITH, BYE, and BENTON, Circuit Judges.

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PER CURIAM. 

Brandon Thompson was sentenced to 365 months' imprisonment after the

district court granted a partial reduction of his original 380-month sentence pursuant 1

to 18 U.S.C. § 3582. On appeal, Thompson argues that the district court erred in (1)

denying his motion for a downward variance or, in the alternative, motion to continue

his originalsentencing based on an anticipated change in the Guidelines; (2) granting

the government's motion for an upward departure at his original sentencing based on

underrepresentation of criminal history; and (3) denying Thompson a fullsentencing

reduction under Amendment 782. We affirm. 

I. Background

Thompson pleaded guilty pursuant to a written plea agreement to possession

with intent to distribute 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine, or 50 grams or more of actual

methamphetamine, after a prior drug felony conviction, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), and 851.

The presentence investigation report calculated Thompson's sentencing range

to be 292 to 365 months' imprisonment. In advance of the sentencing hearing, the

government filed a motion for an upward departure pursuant to U.S.S.G. § 4A1.3.

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa.

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Thompson filed a sentencing memorandum that included a motion for a downward

variance and, alternatively, a request to continue the sentencing hearing until on or

after November 1, 2014. He requested a one-level downward variance based on

proposed Amendment 782 to the Drug Quantity Table in U.S.S.G. § 2D1.1. 

"Amendment 782 became effective November 1, 2014, and applies

retroactively to reduce most drug quantity base offense levels by two levels." United

States v. Lawin, 779 F.3d 780, 781 n.2 (8th Cir. 2015) (per curiam) (citing United

States v. Thomas, 775 F.3d 982, 982 (8th Cir. 2014) (per curiam)). "Amendment 782

has a broader focus than the crack cocaine amendments, lowering the base offense

level for most drug quantity offenses under § 2D1.1." Thomas, 775 F.3d at 982–83. 

At sentencing on October 20, 2014, both parties agreed that the applicable

Guidelines range was 292 to 365 months' imprisonment. That range was based on an

offense level of 38 after a two-level enhancement was added to the base offense level

of 36 for possession of a dangerous weapon. The court granted a two-level reduction

for acceptance of responsibility, and the government requested—and the court

granted—an additional one-level reduction for acceptance of responsibility. That

yielded a total offense level of 35 and a criminal history category of VI for career

offender status. Thompson had a total of 20 criminal history points, only 13 of which

were needed to reach a criminal history category of VI. This resulted in the

undisputed Guidelines range of 292 to 365 months' imprisonment.

The government then argued for an upward departure for underrepresentation

of criminal history under § 4A1.3. The government noted that (1) the current offense

wasThompson's "tenth felony drug conviction";(2) "[h]e was under a criminal justice

sentence for seven different cases at the time of the instant offense"; and (3) "[h]e is

a career offender with five separate scoring predicate convictions" and other

convictions that "would have counted had they been separately scored." The

government characterized Thompson as "not a typical career offender," noting that

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Thompson's "base offense level didn't even change due to his career offender status

because his quantity was so high." The government pointed out that one of

Thompson's predicate offenses was for "eluding causing bodily injury," a crime of

violence.

After hearing from Thompson's counsel, the court then granted the

government's motion for an upward departure, concluding that Thompson's case "is

not a typical criminal history category VI situation because of the 10 felony drug

offenses, the fact that he was on paper for seven different offenses at the time of the

arrest for this offense." The court noted that Thompson had 20 criminal history points

and that only 13 were needed for him to have a criminal history category of VI. The

court found Thompson "at high risk to recidivate" based "on his criminal past . . . but

probably more importantly on the fact that he's been unsuccessful on supervision in

the state court system." The court departed upward to an offense level of 36, resulting

in a new Guidelines range of 324 to 405 months' imprisonment. 

The government requested "that the [c]ourt impose a sentence of at least 365

months"—the middle of the new range. Thompson requested a sentence at the bottom

of the Guidelines range because (1) the drug quantity was at the lower end of the

applicable range, (2) his Guidelines range already reflected the upward departure for

criminal history, and (3) he attempted to assist law enforcement. Thompson also

requested that the court grant "an additional level off for the change in the

[G]uidelines, which will be effective on November 1st."

After hearing from counsel and Thompson, the court denied Thompson's

request for a variance and sentenced him to 380 months' imprisonment. The court

stated that it had "carefully considered each and every factor under 18 United States

Code Section 3553(a)" in arriving at the 380-month sentence. The court explained

that it was denying Thompson a variance because "if [it] were to vary at this point or

even consider a variance, [the court] would not be treating people the same because

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even if Congress does not act by November 1, 2014, there is a year delay in any

reduction of sentence that the Court would impose." The court left "for another day"

whether it would reduce Thompson's sentence, citing Thompson's "horrible criminal

history" and the fact that he had "repeatedly violated the law by possessing with

intent to deliver or actually delivering drugs" and had "a number of other very serious

felonies: Absconds/escapes, resists law enforcement, placing everyone in danger."

The court advised Thompson that "he should not count on" a sentence reduction

because he was "not a particularly attractive defendant."

Nevertheless, the court emphasized that it would examine Thompson's case, as

it was going to do "every single other drug case that [the court] ha[d] sentenced,"

"between November 1st of 2014 and November 1st of 2015." It observed that "[n]o

sentence reductions for anyone in the United States can go into effect until November

1st of 2015" and advised that Thompson need not do anything for the court to review

his case in light of Amendment 782. According to the court, "If it looks like I'm going

to deny his request or I'm uncertain if I'm going to grant it, I would appoint counsel

and give him an opportunity at a hearing over the telephone to convince me that he

is an individual that is deserving of the sentence reduction."

Although the court recognized that it "ha[d] the power to vary today," it chose

not to grant Thompson's downward-variance request. The court then discussed the

circumstances of the offense, Thompson's criminal history, and his personal

characteristicsin reaching the 380-month sentence. The court stressed that in crafting

the 380-month sentence, it had "considered all the statutory factors that apply" but

was "not going to dictate them into the record today."

Thereafter, on May 14, 2015, the court held a hearing on its own motion under

18 U.S.C. § 3582(c)(2) after making a preliminary finding that Thompson was

eligible for a sentence reduction. Although Amendment 782 had reduced Thompson's

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drug offense level, his status as a career offender resulted in only a one-level

reduction to level 34. 

At the hearing, the court noted that the reduction was discretionary under

§ 3582 and that, in order to make that decision, the court must analyze the § 3553(a)

factors. The court explained that under retroactive Amendment 782 that went into

effect on November 1, 2014, Thompson's total offense level became a 34 with a

criminal history category of VI; this resulted in a Guidelines range of 262 to 324

months' imprisonment. According to the court, if it departed upward one

level—which it had done at the original sentencing—then Thompson's new range of

imprisonment would be 292 to 365 months' imprisonment. The court then asked for

argument from the parties. 

The government characterized Thompson's "criminal history" as "quite

amazing," noting that eight felony convictions exist from 1998 to 2014. The

government asked for the court to again impose an upward departure for understated

criminal history. The government "suggest[ed] that the full reduction in this case may

be unwarranted and . . . suggest[ed] that a partial reduction to a sentence lessthan 380

but more than the 365 is appropriate."

In response, Thompson's counsel asked the court to consider four factors: (1)

Thompson was already limited in the amount of the sentence reduction by the career

offender guideline, which restricted him to a one-level instead of a two-level

reduction; (2) given Thompson's age, if he served a 380-month sentence, then he

would not be released until he was approximately 71 years old; (3) Thompson was

in state custody and had not started serving his federalsentence; and (4) prior to being

indicted, Thompson voluntarily met with law enforcement. Thompson asked that the

court grant the reduction to "put him in the same position as others who have gotten

a reduction because of the change in the guideline."

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The court then reduced Thompson's sentence to 365 months' imprisonment. In

granting a partial sentencing reduction, the court observed that it did "not think [it]

erred in [its] original sentencing of him" by departing upward based on its findings

that Thompson's "criminal history category did not capture fully the seriousness of

his criminal conduct" and that Thompson was at a "high risk to recidivate." As a

result, the court gave Thompson "a slight reduction, but for the very same reasons that

[it] stated when [it] sentenced him originally—he has a very serious criminal history,

recidivism." The court cited Thompson's "8 prior felony drug convictions, 2

weapon-based convictions, [and] 5 career offender predicates." The court declined

to give Thompson "a full reduction because his background suggeststhat he is at high

risk to recidivate." 

II. Discussion

On appeal, Thompson argues that the district court erred in (1) denying his

motion for a downward variance or, in the alternative, motion to continue his original

sentencing based on an anticipated change in the Guidelines; (2) granting the

government's motion for an upward departure at his original sentencing based on

underrepresentation of criminal history; and (3) denying Thompson a fullsentencing

reduction under Amendment 782. 

A. Downward Variance/Continuance of Original Sentencing

Thompson argues that the district court erred in refusing to vary downward one

level at his original sentencing to account for then-proposed Amendment 782. He

notes that his counsel reminded the court that it would be virtually impossible for

Congress to modify the proposed amendment in the 12 days prior to November 1,

2014, because Congress was not in session until after that date. Counsel suggested

that considerable court resources would be saved if the court granted Thompson the

benefit of the additional level at the time of original sentencing rather than at a postsentencing reduction under 18 U.S.C. § 3582(c)(2). Thompson argues that the court's

failure to grant the reduction prejudiced him "because a variance granted at the time

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of originalsentencing was certain to take into account the guideline change, whereas

waiting for re-sentencing next year is only speculative." He also argues that the court

abused its discretion in refusing to continue the October 20, 2014 sentencing hearing

until November 1, 2014, so that Thompson's sentencing hearing could take place after

the effective date of the amendment. He notes that he made the request two weeks

prior to the scheduled sentencing date and asked for a delay of only two weeks until

after the effective date of the new guideline.

"[W]hether [Thompson] is entitled to a reduction in his sentence based on

§ 3582(c)(2) is a separate question from whether the district court erred in denying

his motions" to vary downward in anticipation of Amendment 782 and continue

sentencing until after November 1, 2014. See Lawin, 779 F.3d at 782. Nonetheless,

Thompson's argument that the district court erred in denying these motions fails. 

We have recently rejected the argument that a "district court erred in denying

[a] motion to vary downward . . . from the correctly calculated guidelines range in

anticipation of Amendment 782." Id. at 781. "Our case law on this issue is clear:

[T]he district court was not required to consider the pending guidelines amendment.

Consideration of the pending amendment is merely permissible, not required." Id.

(alteration in original) (quotation and citations omitted); see also United States v.

Riehl, 779 F.3d 776, 778 (8th Cir. 2015) (per curiam) (holding that the district court

was not required to consider pending Amendment 782 in sentencing defendant prior

to amendment's effective date because the consideration of pending amendment was

merely permissible, not required). "[O]ur holdings were not limited to any specific

amendment. Moreover, they follow the firmly-established principle that the court

must apply the Sentencing Guidelines in effect at the time ofsentencing unless doing

so would violate the ex post facto clause of the United States Constitution." Lawin,

779 F.3d at 781 (citation omitted). In the present case, "[t]he district court considered

and rejected prospectively applying Amendment 782. It did not err in so doing." See

id. 

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Thompson "also argues the district court erred in denying his request to

continue the sentencing hearing until after November 1, 2014." See id. "'We will

reverse a district court's decision to deny a motion for continuance only if the court

abused its discretion and the moving party was prejudiced by the denial.'" Id. at

781–82 (quoting United States v. Woods, 642 F.3d 640, 644 (8th Cir. 2011)). Similar

to the defendant in Woods, Thompson essentially "argues a district court abuses its

discretion unless it suspends all sentencing upon the enactment of potentially

favorable legislation or Guidelines amendments until the changes are fully effective

and all the details become known." 642 F.3d at 644–45. We have rejected such an

argument as "untenable." Id. at 645. Even though Thompson "may believe he had

good reason to delay, . . . his desire to postpone his sentencing further does not

compel the district court to grant his request." See id.

B. Upward Departure

Thompson argues that the district court abused its discretion in failing to fully

consider his personal characteristics and history and other factors supporting leniency

when it granted the government's motion for an upward departure at his original

sentencing. He argues that a person in his situation with no prior criminal history

score would face an advisory Guidelines range beginning at 108 months, but because

he is a career offender, his Guidelines range jumped to around 30 years. He asserts

that his criminal history score already accounted for a set of past convictions that the

Sentencing Commission has deemed of sufficient seriousness to warrant a sentence

near the top of the applicable statutory limit. He also argues that the court failed to

explain how additional prison time beyond age 70 (Thompson is in his mid-40s) will

result in lower recidivism or to consider Thompson's other personal characteristics

and history. 

We review for an abuse of discretion a district court's decision to depart

upward. United States v. King, 627 F.3d 321, 323 (8th Cir. 2010). Section

4A1.3(a)(1) of the Guidelines directs that a district court may depart upward "[i]f

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reliable information indicates that the defendant's criminal history category

substantially under-represents the seriousness of the defendant's criminal history or

the likelihood that the defendant will commit other crimes." According to

§ 4A1.3(a)(4)(B):

In a case in which the court determines that the extent and nature of the

defendant's criminal history, taken together, are sufficient to warrant an

upward departure from Criminal History Category VI, the court should

structure the departure by moving incrementally down the sentencing

table to the next higher offense level in Criminal History Category VI

until it finds a guideline range appropriate to the case.

"When deciding whether to depart based on the inadequacy of a category VI criminal

history, 'the court should consider that the nature of the prior offenses rather than

simply their number is often more indicative of the seriousness of the defendant's

criminal record.'" King, 627 F.3d at 323 (quoting U.S.S.G. § 4A1.3, cmt. n.2(B)).

Thompson's "case fits squarely within U.S.S.G. § 4A1.3(a)(2)(A) . . . . That

section provides that an upward departure may be based on information concerning

'[p]rior sentence(s) not used in computing the criminal history category . . . .'" See id.

(second alteration in original) (quoting U.S.S.G. § 4A1.3(a)(2)(A)). We have

previously rejected a defendant's argument "that the district court's upward departure

was unwarranted because his career offender status 'already punished him.'" Id. "A

career offender is not immune from an upward departure under U.S.S.G. § 4A1.3."

Id. This is because "[a]n upward departure is appropriate where a category VI

criminal history does not adequately reflect the defendant's criminal past." Id. (citing

U.S.S.G. § 4A1.3 cmt. n.2(B)). "This principle is no less applicable where the

defendant is a career offender." Id. We have recognized that not all career offenders

are the same; "'[t]he length and scope of the career that lands the criminal under the

career-offender guideline are appropriate grounds for departure, either upward or

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downward, in an unusual case.'" Id. at 323–24 (quoting United States v. Greger, 339

F.3d 666, 672 (8th Cir. 2003)).

Here, the district court noted that Thompson had accumulated 20 criminal

history points and that only 13 were needed for him to have a criminal history

category of VI. See United States v. Outlaw, 720 F.3d 990, 993 (8th Cir. 2013)

(affirming upward departure under § 4A1.3 where "the district court found that a

category VI criminal history under-represented [the defendant's] criminal history,"

considering that "Category VI requires a minimum of 13 criminal history points" and

the defendant's "23 points far exceeded this minimum"). Thompson also had five

separate career offender predicates, which were all committed in a ten-year time

period. And, he had additional convictions that would have been career-offender

predicate convictions if they had been separately scored. The district court also noted

Thompson's criminal history indicated that he was "at a high risk to recidivate." "A

defendant's recidivism is a reasonable basis for applying an upward departure."

United States v. Gonzalez, 573 F.3d 600, 606 (8th Cir. 2009) (citation omitted). The

court also properly considered that Thompson was "on paper for seven different

offenses at the time of the arrest for this offense."

Therefore, we conclude that the district court did not abuse its discretion in

departing upward. 

C. Sentencing Reduction

Thompson argues that the district court abused its discretion in reducing his

sentence to only 365 months' imprisonment. According to Thompson, instead of

imposing a comparable sentence of 342 months asthe probation office had suggested,

the court imposed a term at the top of the reduced Guidelines range of 292 to 365

months' imprisonment because of Thompson's high risk to recidivate. Thompson

argues that the court had already considered this factor at the time of his original

sentence and that, as a result, the court had granted the government's motion to depart

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upward one level. Thompson contends that nothing in his criminal background had

changed between his original sentencing and modification hearing. In summary, he

asserts that "[h]aving already taken recidivism and criminal history into account by

departing upward one level, the court should not have imposed a sentence at the top

of the range."

"We review a district court's decision under § 3582(c)(2) to reduce a sentence

and the extent of any reduction for an abuse of discretion." United States v. Burrell,

622 F.3d 961, 964 (8th Cir. 2010) (citation omitted). 

Section 3582(c)(2) provides that

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 pursuant to 28 U.S.C. 994(o),

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.

"To obtain a reduction in a term of imprisonment based on an amendment to

the Sentencing Guidelines, the relevant amendment must be listed in U.S.S.G.

§ 1B1.10(d)." United States v. Diaz, __F. App'x__, 2015 WL 6143126, at *2 (11th

Cir. Oct. 20, 2015) (per curiam) (citing U.S.S.G. § 1B1.10(a)(1)). Amendment "782

to the Sentencing Guidelines [is] listed in § 1B1.10(d)." Id. (citing U.S.S.G.

§ 1B1.10(d)). That amendment "reduced by two levels the base offense levels that

apply to offenses involving cocaine." Id. (citation omitted).

In determining whether, and to what extent, a reduction in the

defendant's term of imprisonment under 18 U.S.C. 3582(c)(2) and this

policy statement is warranted, the court shall determine the amended

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guideline range that would have been applicable to the defendant if

[Amendment 782] . . . had been in effect at the time the defendant was

sentenced. In making such determination, the court shall substitute only

[Amendment 782] . . . for the corresponding guideline provisions that

were applied when the defendant wassentenced and shall leave all other

guideline application decisions unaffected.

U.S.S.G §1B1.10(b)(1).

Under § 3582(c)(2), a district court employs a "two-step approach" in a

sentencing-modification proceeding. Dillon v. United States, 560 U.S. 817, 827

(2010). First, the court must "follow the Commission's instructions in § 1B1.10 to

determine the prisoner's eligibility for a sentence modification and the extent of the

reduction authorized." Id. Pursuant to § 1B1.10(b)(1), a court must "begin by

'determin[ing] the amended guideline range that would have been applicable to the

defendant' had the relevant amendment been in effect at the time of the initial

sentencing." Id. (alteration in original) (quoting U.S.S.G. § 1B1.10(b)(1)). The

applicable Guidelines range in the 3582(c)(2) context isthe range "determined before

consideration of any departure provision in the Guidelines Manual or any variance."

U.S.S.G. §1B1.10 cmt. n.1(A).

According to § 1B1.10(b)(1), "'[i]n making such determination, the court shall

substitute only the amendments listed in subsection ([d]) for the corresponding

guideline provisions that were applied when the defendant was sentenced and shall

leave all other guideline application decisions unaffected.'" Dillon, 560 U.S. at 827

(quoting U.S.S.G. § 1B1.10(b)(1)). Because of "the limited nature of § 3582(c)(2)

proceedings, § 1B1.10(b)(2) also confinesthe extent of the reduction authorized." Id.

This means that "[c]ourts generally may 'not reduce the defendant's term of

imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term that is less than the

minimum of the amended guideline range' produced by the substitution." Id.

(alteration in original) (quoting U.S.S.G. § 1B1.10(b)(2)(A)). Furthermore, "[o]nly

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if the sentencing court originally imposed a term of imprisonment below the

Guidelines range does § 1B1.10 authorize a court proceeding under § 3582(c)(2) to

impose a term 'comparably' below the amended range." Id. (quoting

§ 1B1.10(b)(2)(B)).

Second, the court must "consider any applicable § 3553(a) factors and

determine whether, in its discretion, the reduction authorized by reference to the

policies relevant at step one is warranted in whole or in part under the particular

circumstances of the case." Id. Specifically, "[t]he court shall consider the nature and

seriousness of the danger to any person or the community that may be posed by a

reduction in the defendant's term of imprisonment." U.S.S.G. § 1B1.10(b) cmt.

n.1(B)(ii). A court's "reference to § 3553(a) is appropriate only at the second step of

this circumscribed inquiry." Dillon, 560 U.S. at 827. Proceedings pursuant to

§ 3582(c)(2) are not "plenary resentencing proceedings." Id. 

Here, the district court followed the two-step process for determining to what

extent to reduce Thompson's sentence. The court first calculated the amended

Guidelines range, and Thompson does not dispute that the district court did this

properly. Second, the court noted its consideration of the § 3553(a) factors at

sentencing without specifically discussing them individually. See United States v.

Castillo, 713 F.3d 407, 412 (8th Cir. 2013) ("When considering the § 3553(a) factors,

'[a] district court is not required to make specific findings; all that is generally

required to satisfy the appellate court is evidence that the district court was aware of

the relevant factors.'" (alteration in original) (quoting United States v. Perkins, 526

F.3d 1107, 1110 (8th Cir. 2008))). The district court determined the extent of the

reduction from the 380-month sentence to the new, reduced sentence based upon

Thompson's extensive criminal history and the risk his release posed to the

community—factors similar to those considered in the original U.S.S.G. §4A1.3

upward departure. Consideration of "the nature and seriousness of the danger to

. . . the community" is a factor that the district court was required to consider

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pursuant to § 1B1.10(b) cmt. n.1(B)(ii). The district court has "substantial latitude to

determine how much weight to give the various factors under § 3553(a)" and chose

to give more weight to the aggravating factors ofrecidivismand Thompson's criminal

history. See United States v. Timberlake, 679 F.3d 1008, 1012 (8th Cir. 2012)

(quotation and citation omitted). As a result, the district court did not abuse its

discretion in reducing Thompson's 380-month sentence to 365 months'imprisonment. 

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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