15

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United States of America v. Derry



## In the



# United States Court of Appeals

**For the Second Circuit**

________

August Term, 2015

No. 15

‐ 1829

U NITED S TATES OF A MERICA

, Appellee

,

v.

L EROY D ERRY

, Defendant

‐ Appellant. 1

________

Appeal from the United States District Court

for the District of Connecticut.

No. 97 Crim. 48 (MPS)

― Michael P. Shea, Judge

.

________

Argued: April 6, 2016

Decided: June 1, 2016

________

Before: P OOLER

, P ARKER

, and L IVINGSTON

, Circuit Judges

.

________

1 The Clerk of Court is directed to amend the caption as set forth above.No. 15

‐ 1829

Appeal from an order of the United States District Court for

the District of Connecticut (Shea, J. ) denying Leroy Derry’s motion

for a sentence modification pursuant to 18 U.S.C. § 3582(c)(2). Derry

received a sentence modification in 2011 based upon Amendment

750 to the Sentencing Guidelines and sought a second modification

in 2015 based upon Amendment 782. The district court concluded

that he was ineligible because Amendment 782 had not reduced his

guideline range below that applied at his prior sentence

modification. Derry contends that he is eligible because his

amended guideline range is lower than the range applied at his

original sentencing. We hold that when a defendant is serving a

term of imprisonment that has been modified pursuant to

§ 3582(c)(2), his sentence is “based on” the guideline range applied

at his most recent sentence modification, rather than the range

applied at his original sentencing. Because Derry’s sentence is

“based on” a guideline range that has not been lowered by

Amendment 782, he is ineligible for a sentence modification. The

judgment of the district court is accordingly AFFIRMED.

________

D AVID S. K EENAN

, Assistant Federal Defender, for

Terence S. Ward, Federal Public Defender for the

District of Connecticut, New Haven, Connecticut,

for Defendant

‐ Appellant.

A VI P ERRY

, Assistant United States Attorney

(Michael E. Runowicz & Marc H. Silverman,

Assistant United States Attorneys, on the brief ), for

Deirdre M. Daly, United States Attorney for the

District of Connecticut, for Appellee

.

________

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B ARRINGTON D. P ARKER

, Circuit Judge :

A federal sentence ordinarily may not be modified once it has

been imposed. 18 U.S.C. § 3582(b). An exception to this rule of

finality arises when a defendant has been sentenced to a term of

imprisonment “based on” a sentencing range that has “subsequently

been lowered by” a retroactive amendment to the United States

Sentencing Guidelines, id. § 3582(c)(2), and the “guideline range

applicable to the defendant” has been “lowered as a result,”

U.S.S.G. § 1B1.10(a)(1). Under those circumstances, a district court

may modify the term of imprisonment based upon the amended

guideline range. U.S.S.G. § 1B1.10(b)(1).

This appeal calls on us to determine whether a defendant who

has received a sentence modification is eligible for a further

modification when, as a result of a subsequent Guidelines

amendment, his revised guideline range is lower than that applied at

his original sentencing but not lower than the range applied at his

prior sentence modification. Leroy Derry was originally sentenced

in 2009 to a term of 396 months’ imprisonment based on a guideline

range of 360 months to life. In 2011, he received a sentence

modification based upon Amendment 750, which lowered the base

offense level for his crack cocaine convictions and thereby reduced

his guideline range to 235 to 293 months. In 2015, he sought a

second modification based on Amendment 782, which again

lowered the base offense level but, because of the Guidelines’

grouping procedures, yielded the same guideline range as before.

The United States District Court for the District of Connecticut (Shea,

J. ) concluded that Derry was ineligible for a second sentence

modification because Amendment 782 did not further reduce his

guideline range below that applied at his prior modification. Derry

contends that he is eligible because his amended guideline range is

lower than the range applied at his original sentencing.

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We hold that when a defendant is serving a term of

imprisonment that has been modified pursuant to § 3582(c)(2), his

sentence is “based on” the guideline range applied at his most recent

sentence modification, rather than the range applied at his original

sentencing. Because Derry’s sentence is “based on” a guideline

range of 235 to 293 months and that range has not subsequently been

lowered by Amendment 782, he is ineligible for a sentence

modification. The judgment of the district court is accordingly

affirmed.

BACKGROUND

Derry is a former member of the Latin Kings street gang who

was involved in the group’s Connecticut chapter in the mid

‐ to late

‐

1990s. In 1998, a jury convicted him of multiple counts of conspiracy

and possession with intent to distribute heroin or cocaine base, 21

U.S.C. §§ 841, 846, racketeering and racketeering conspiracy, 18

U.S.C. § 1962, attempted murder, and conspiracy to murder, 18

U.S.C. § 1959.

Prior to sentencing, the United States Probation Department

prepared a Presentence Report (“PSR”) that sorted Derry’s

convictions into three groups pursuant to the Guidelines’ grouping

provisions. See U.S.S.G. §§ 3D1.1–3D1.5. Group One included his

convictions for racketeering and drug trafficking. Based on 104.2

grams of cocaine base, Probation calculated a base offense level of 32

under the crack cocaine guideline, § 2D1.1, and then added six levels

for Derry’s possession of a firearm and leadership role in the

organization, §§ 2D1.1(b)(1), 3B1.1(a), yielding an adjusted offense

level of 38. For Groups Two and Three, which included Derry’s

convictions for attempted murder and conspiracy to murder,

Probation calculated adjusted offense levels of 32. Applying § 3D1.4,

Probation then assigned one unit to Group One and one

‐ half unit

each to Groups Two and Three, added the two units to the highest

adjusted offense level of 38, and calculated a total offense level of 40.

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Because Derry’s Criminal History level was Category IV, his

corresponding guideline range was 360 months to life

imprisonment. The district court (Nevas, J. ) adopted the PSR’s

findings and calculations and sentenced Derry principally to a term

of 396 months.

In 2011, the United States Sentencing Commission

promulgated Amendments 750 and 759, which retroactively revised

§ 2D1.1 to reduce the base offense level for crack cocaine offenses.

U.S.S.G. App’x C, Vol. III, Amends. 750, 759. In an addendum to the

PSR, Probation concluded that Derry was eligible for a sentence

modification because the amendments had reduced the base offense

level for Group One to 26, resulting in an adjusted offense level of

32. As Groups One, Two, and Three now all had the same offense

level, Probation assigned each group one unit per § 3D1.4, and,

using the highest adjusted offense level of 32 as the starting point,

calculated a revised total offense level of 35 and a revised guideline

range of 235 to 293 months. The district court (Burns, J. ) then sua

sponte reduced Derry’s sentence to 293 months. Derry did not seek

reconsideration or appellate review of that decision. 2

In April 2015, Derry moved for a further sentence

modification based on Amendments 782 and 788, which

2 The parties offer conflicting accounts as to whether Derry received notice of the PSR

addendum or was aware that the district court was considering modifying his sentence

sua sponte

. It is unclear whether Derry was entitled to notice that the court was

considering modifying his sentence. See United States v. Deglace

, 309 F. App’x 288, 290

(11th Cir. 2008) (observing that § 3582(c)(2) does not provide a defendant with a right to

notice of a potential modification); United States v. Johnson

, 703 F.3d 464, 469–71 (8th Cir.

2013) (concluding that § 3582(c)(2) does not implicate a constitutionally protected

liberty interest). But even if he was, his recourse was to seek reconsideration or

appellate review of that order, and the time to challenge the 2011 modification on direct

appeal has long since passed. Whatever complaints Derry may have regarding his

prior modification, we are bound by § 3582(c)(2) and may grant him relief only if he

meets the statute’s eligibility requirements with respect to Amendment 782. We

express no opinion on the viability of other potential avenues of relief with respect to

the 2011 modification.

5No. 15

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retroactively reduced the base offense levels for all drug offenses by

two. U.S.S.G. Supp. II App’x C., Amends. 782, 788. Probation

submitted another addendum to the PSR, but this time concluded

that Derry was ineligible. It reasoned that although the adjusted

offense level for Group One had been reduced to 30, the highest

adjusted offense level of 32 continued to serve as the starting point

and each group continued to receive one unit, leaving Derry’s total

offense level at 35 and his guideline range the same as before. On

May 27, 2015, the district court (Shea, J. ) held that Derry was

ineligible for a modification because the “guideline range

applicable” to him had not been “lowered as a result of”

Amendment 782. United States v. Derry

, No. 97

‐ cr

‐ 48, 2015 WL

3407924, at *2–3 (D. Conn.). Derry timely appealed. We review the

district court’s interpretation of statutes and the Guidelines de novo

. United States v. Savoy

, 567 F.3d 71, 72 (2d Cir. 2009) (per curiam).

DISCUSSION

I.

Because a sentence incorporated in a judgment of conviction is

final, courts are generally precluded from modifying a sentence once

it has been imposed. 18 U.S.C. § 3582(b), (c). Congress has,

however, recognized an exception when the Sentencing Commission

has issued a retroactive amendment, such as the amendments

reducing the crack cocaine guidelines, that would have reduced the

defendant’s guideline range had it been in place when the defendant

was initially sentenced. Specifically, a court is authorized to modify

an otherwise final sentence, on a motion or its own initiative,

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

6No. 15

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U.S.C. 994(o)

. . . after considering the

factors set forth in section 3553(a) to the

extent they are applicable, if such a

reduction is consistent with applicable

policy statements issued by the Sentencing

Commission.

18 U.S.C. § 3582(c)(2). 3 The Commission’s applicable policy

statement appears at U.S.S.G. § 1B1.10 and provides that a court may

modify a sentence “[i]n a case in which a defendant is serving a term

of imprisonment, and the guideline range applicable to that

defendant has subsequently been lowered as a result of an

amendment to the Guidelines Manual listed in subsection (d).”

U.S.S.G. § 1B1.10(a)(1). 4 A defendant is thus eligible for a

modification if he has been sentenced to a term of imprisonment

“based on” a guideline range that has “subsequently been lowered

by” an enumerated, retroactive amendment, and the “guideline

range applicable” to him has been “lowered as a result.”

To determine whether and to what extent a reduction is

warranted, a district court must calculate the “amended guideline

range that would have been applicable to the defendant if the

amendment(s) to the guidelines listed in [§ 1B1.10(d)] had been in

effect at the time the defendant was sentenced.” Id. § 1B1.10(b)(1).

In so doing, the court is directed to “substitute only the amendments

. . . for the corresponding guideline provisions that were applied

when the defendant was sentenced and [to] leave all other guideline

application decisions unaffected.” Id. If the court concludes that the

defendant is eligible for a sentence modification based upon the

amended guideline range, it should proceed to determine whether,

in its discretion, a reduction is warranted in light of the applicable

3 We have previously recognized that the “sentencing range” and “guideline range”

are the same. See United States v. Rivera

, 662 F.3d 166, 173 (2d Cir. 2011), superseded on

other grounds by U.S.S.G. § 1B1.10 (2011).

4 Amendment 782 is listed, in relevant part, in § 1B1.10(d).

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§ 3553(a) factors and the defendant’s circumstances, including post

‐ sentencing conduct. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10 cmt.

n.1(B)(i)–(iii); see also Dillon v. United States

, 560 U.S. 817, 826 (2010)

(describing this two

‐ step process). Thus, § 3582(c)(2) “does not

authorize a [plenary] sentencing or resentencing proceeding,” Dillon

,

560 U.S. at 825, but rather “empowers district judges to correct

sentences that depend on frameworks that later prove unjustified”

by reducing a sentence in circumstances specified by the

Commission, Freeman v. United States

, 564 U.S. 522, 526 (2011)

(plurality opinion).

II.

We now consider whether Derry is eligible for a sentence

modification based upon Amendment 782, which yielded a revised

guideline range (235 to 293 months) that was lower than the range

applied at his original sentencing (360 months to life) but the same

as the range applied at his 2011 sentence modification.

The district court assumed that Derry had been “ sentenced to a

term of imprisonment based on a sentencing range” that has been

lowered by Amendment 782, 2015 WL 3407924, at *1 (quoting 18

U.S.C. § 3582(c)(2)), because, in its view, the term “sentenced”

“likely refers to the sentence imposed at the original sentencing

hearing,” and the guideline range applied to Derry at his original

sentencing was subsequently lowered by the amendment, id. The

court went on to conclude, however, that under the Guidelines

policy statement, the “guideline range applicable” to Derry was the

range applied at his sentence modification, and that range had not

been “lowered as a result of ” Amendment 782 because it remained

the same as before. Id. at *2 (quoting U.S.S.G. § 1B1.10(a)(1)). The

court thought that this interpretation best accorded with the policy

of finality in sentencing: since Derry had “already been afforded

judicial consideration of whether his sentence should be reduced in

light of an amended sentencing range of 235–293 months,” allowing

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him to seek a modification based on the same range would be akin

to providing “multiple bites at the same apple.” Id. at *4.

Derry contends that the district court correctly determined

that he was sentenced to a term of imprisonment “based on” a

guideline range that has subsequently been lowered by Amendment

782, but erred when it construed “applicable guideline range” to

refer to the range applied at his 2011 sentence modification. With

respect to the former, Derry urges that the term “sentenced” in

§ 3582(c)(2) is equivalent to the formal process of “sentencing,”

which is distinct from a sentence modification and refers to the

procedure described in Federal Rule of Criminal Procedure 32 that

results after a number of steps in the imposition of a term of

imprisonment and the entry of a judgment of conviction. Under this

reading, Derry was “sentenced” to a term of imprisonment at his

original sentencing, and the guideline upon which his sentencing

was based is 360 months to life. The government effectively

concedes this point and opts to instead contest the meaning of

“applicable guideline range” under § 1B1.10. 5

We cannot agree that Derry has been sentenced to a term of

imprisonment “based on” the guideline range applied at his original

sentencing. Although Derry’s argument is creative, his reliance on

the term “sentenced” misses the mark. The focal point of § 3582 is

not the moment at which the defendant was “sentenced,” nor is it

the Rule 32 “sentencing.” Indeed, the latter term does not even

appear in the statute; the sole references to “sentencing” occur in the

contexts of the “Sentencing Commission” and the “sentencing

range.” See 18 U.S.C. § 3582(a), (c)(1)(A), (c)(2).

5 Although the government does not argue that Derry is ineligible for a further

reduction under the statutory text of § 3582(c)(2) and focuses instead on his eligibility

under the Guidelines policy statement, we nonetheless decide this appeal on this

ground because we find that, as a matter of statutory construction, § 3582(c)(2) does not

permit him the relief he seeks. Further, because Derry forcefully argued in his brief

and reply brief that he is eligible for relief under § 3582(c)(2), he is not prejudiced by

our taking up this issue in spite of the government’s silence.

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The operative term, rather, is the “term of imprisonment” or

“sentence” that the defendant is serving. We think this is apparent

from the text and structure of the statute. Section 3582 is titled

“Imposition of a sentence of imprisonment.” Subsection (a) outlines

the factors to be considered by the district court in deciding whether

to impose a “term of imprisonment” in the first instance and, if so, in

setting the term’s length. Subsection (b) provides that a “sentence to

imprisonment” may be appealed, modified, or corrected only in

limited circumstances. And subsection (c), titled “Modification of an

imposed term of imprisonment,” provides that “[t]he court may not

modify a term of imprisonment once it has been imposed except,”

inter alia

, when a defendant “has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently

been lowered.” Section 3582 thus sets forth the circumstances in

which a district court should impose a term of imprisonment on a

defendant and when that term may be revised.

Accordingly, the relevant inquiry under § 3582(c)(2) is not

when the formal process of “sentencing” occurred, but what term of

imprisonment the defendant is serving and what guideline range

serves as the basis for that sentence. When a district court modifies

a term of imprisonment pursuant to § 3582(c)(2), it replaces the

previous term of imprisonment with a new one based on the

amended guideline range, and amends the judgment to reflect the

sentence that comes into effect. See 18 U.S.C. § 3582(b)–(c). In other

words, as a matter of fact, the old sentence no longer exists, and the

only term of imprisonment to which the defendant has been

“sentenced” is “based on” the guideline range applied in the

modification proceeding. Derry’s reliance on the word “sentenced”

does not persuade us otherwise because “sentenced” is not the same

as the formal Rule 32 act of “sentenc ing ,” and a defendant who

receives a sentence modification undoubtedly has been sentenced to

a new term of imprisonment. That is, after all, why defendants like

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Derry seek a modification in the first place. 6

This conclusion is consistent with our case law in other

contexts. In United States v. Williams

, for instance, we held that a

defendant who was subject to the crack cocaine guideline but

sentenced pursuant to a higher statutory mandatory minimum was

ineligible for a modification based upon Amendment 706, which

reduced the crack cocaine guideline range, because the statutory

minimum had “subsumed and displaced the otherwise applicable

guideline range,” such that his sentence was “as a matter of fact”

based on the mandatory minimum. 551 F.3d 182, 185–86 (2d Cir.

2009) (alterations in original). In United States v. Johnson

, we

affirmed our holding in Williams that the mandatory minimum

displaces the otherwise applicable guideline range, and deemed a

defendant ineligible for a sentence modification when the

amendment at issue generated a guideline range of 120 months, as

opposed to the initial range of 120 to 134 months. 732 F.3d 109,

114–15 (2d Cir. 2013).

While neither of these cases addresses a scenario in which a

defendant seeks a further sentence modification, their focus upon

the final, as opposed to interim, guideline calculation is instructive.

Just as we do not look to the interim guideline ranges used in a

single sentencing proceeding, so too we should not look to the

guideline ranges applied in earlier sentencing proceedings when

those ranges have been subsumed and displaced by a range that

6 Dillon ’s distinction between plenary sentencing and sentence modification is

consequently inapposite. In any event, Dillon simply recognized that § 3582(c)(2)

proceedings are not “sentencing” proceedings that implicate the constitutional interests

underlying United States v. Booker

, 543 U.S. 220 (2005). Dillon

, 560 U.S. at 828. The

Supreme Court did not reject the basic proposition that a judge who exercises his

discretion to modify a sentence pursuant to § 3582(c)(2) assigns a new term of

imprisonment based on the § 3553(a) factors and the defendant’s circumstances. See id.

at 826–27 (observing that a court modifying a sentence “does not impose a new

sentence in the usual sense ” because its analysis is circumscribed by the eligibility

requirement and the Commission’s policy statements, such as those governing the

permissible extent of a reduction for eligible defendants) (emphasis added).

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provides the basis for the term of imprisonment that the defendant is

serving. In both scenarios, the defendant is serving a sentence based

on the guideline range that was most recently applied, and he

should be eligible for a modification only if an amendment affects

the guideline range that actually underlies his sentence. Cf. Freeman

,

564 U.S. at 535 (Sotomayor, J., concurring) (“To ask whether a

particular term of imprisonment is ‘based on’ a Guidelines

sentencing range is to ask whether that range serves as the basis or

foundation for the term of imprisonment.”). Derry’s alternative

reading would undermine the statute’s purpose of allowing a

narrow exception to the rule of finality in sentencing when a

defendant has been disadvantaged by the sentencing range that an

amendment sought to correct, such that a modification could

remedy “whatever marginal effect the since

‐ rejected Guideline had

on the defendant’s sentence.” Id. at 530 (plurality opinion). When a

defendant is serving a sentence based on a guideline range that has

not been further reduced by an amendment, he is not disadvantaged

because the marginal effect of the since

‐ rejected guideline range on

his sentence is non

‐ existent.

Our decision today is in accord with the holdings of our sister

circuits. In United States v. Tellis

, for example, the defendant was

subject to the career offender guideline, U.S.S.G. § 4B1.1, and the

crack cocaine guideline, U.S.S.G. § 2D1.1, and was sentenced under

the latter. The district court subsequently granted a sentence

modification based on Amendment 706, using § 4B1.1 as the new

“starting point” in its calculation. 748 F.3d 1305, 1307 (11th Cir.

2014). When Tellis sought a second modification based upon

Amendment 750, which further reduced the base offense level for

his crack cocaine conviction, the district court held that he was

ineligible “because he was sentenced as a career offender.” Id. at

1308. On appeal, Tellis argued that “relying on the career offender

provisions now would constitute a re

‐ sentencing proceeding as

opposed to a modification proceeding,” since the career offender

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guideline had not been applied at his original sentencing. Id. at 1309

(internal quotation marks omitted). The Eleventh Circuit disagreed,

reasoning that “[b]ecause Mr. Tellis’s Amendment 706 modification

properly resulted from his career offender status,” his “term of

imprisonment [was] based on the career offender guideline”;

consequently, “Amendment 750 [had] not lower[ed] his offense level

after the Amendment 706 modification, and thus [had] not alter[ed]

the guideline range.” Id. at 1309–10. Two other circuits have

reached the same conclusion. See United States v. Banks

, 770 F.3d 346,

348 (5th Cir. 2014) (per curiam) (“[U]nder section 3582, a defendant’s

sentence is ‘based on’ the guidelines range for the sentence he is

currently serving, not the guidelines range used in his original

sentencing.”); United States v. Wormley

, 471 F. App’x 837, 838 (10th

Cir. 2012) (“Since Wormley was resentenced [under § 3582(c)(2)]

pursuant to the statutory minimum rather than the guidelines, he

cannot claim to be serving a term of imprisonment based on a

sentencing range that was later lowered by the Sentencing

Commission.”). Cf. United States v. Trujillo

, 713 F.3d 1003, 1006 (9th

Cir. 2013) (where the defendant had been denied a prior

modification request, he was “serving a sentence of imprisonment

imposed upon him at the time of his conviction,” “and the district

court had jurisdiction under § 3582(c)(2) to entertain his second

motion because the term of that sentence was ‘subsequently’

lowered by the Sentencing Commission”). 7

Derry’s remaining argument as to § 3582(c)(2) is unpersuasive.

He contends that under United States v. Rivera

, “based on” and

“applicable guideline range” should be read identically, see 662 F.3d

166 (2d Cir. 2011), and, under U.S.S.G. § 1B1.10 cmt. a, the latter term

is defined as the guideline range applied at the original sentencing.

7 Two other circuits have held that a defendant is not eligible for a modification in

circumstances such as Derry’s, but it is not clear whether they did so because of

§ 3582(c)(2)’s “based on” requirement or § 1B1.10(a)’s “applicable guideline range”

requirement. See United States v. Manigault

, 541 F. App’x 145, 147–48 (3d Cir. 2013);

United States v. Broadwater

, 471 F. App’x 534, 535 (7th Cir. 2012).

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But even assuming that Derry’s interpretation of “applicable

guideline range” is correct, Rivera ’s understanding of that term

–

and, by implication, its relationship to “based on”

– has been

abrogated by the very Guidelines comment upon which he relies.

United States v. Steele

, 714 F.3d 751, 756 (2d Cir. 2013). As a result, we

would not be precluded from construing “based on” and “applicable

guideline range” differently.

In sum, we hold that a defendant who has received a sentence

modification is serving a term of imprisonment that is “based on”

the guideline range applied at his most recent sentence modification.

Here, Derry’s sentence is “based on” the guideline range of 235 to

293 months that was applied at his 2011 sentence modification, and

that range has not “subsequently been lowered by” Amendment

782. Accordingly, Derry is ineligible for a sentence modification.

CONCLUSION

For the foregoing reasons, and finding Derry’s remaining

arguments without merit, the decision of the district court is

AFFIRMED.

14