     Case: 15-20662   Document: 00513854884        Page: 1   Date Filed: 01/30/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 15-20662                            FILED
                                                                     January 30, 2017
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

             Plaintiff - Appellee

v.

CHARLES LEWIS CHAPPLE, JR., also known as Derek Netten, also known
as Anthony Moore, also known as Mark Clayton,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, SMITH and PRADO, Circuit Judges.
PER CURIAM:

      Charles Lewis Chapple, Jr., appeals pro se from the district court’s
denial of a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).
His motion was based on retroactive Guidelines Amendment 782, which
lowered offense levels for a number of drug offenses by two base-offense levels.
At the time of the Amendment, however, Chapple had already completed his
term of imprisonment for the sentence that was eligible for the reduction and
was serving time for subsequent offenses. Finding that Chapple is therefore
ineligible for the reduction, we AFFIRM.
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                                     No. 15-20662
                                            I.
      Chapple was charged in the Southern District of Texas in 2005 with
conspiracy to possess with intent to distribute a mixture and substance
containing a detectable amount of cocaine in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(C).        He was sentenced to an 87-month term of
imprisonment, which ran consecutively to an undischarged imprisonment term
that he was serving in California. After Chapple began serving his prison term
for the Texas conviction, he escaped from the federal correctional facility where
he was located in California and was later arrested on drug-trafficking charges
in New Jersey. As a result of these developments, he faced a 48-month term
of imprisonment for the New Jersey charge and a 15-month term of
imprisonment for escaping from custody in California. The terms were to run
consecutively in the order in which they were sentenced.
       In March 2015, Chapple filed a motion requesting a reduction in his
Texas sentence pursuant to 18 U.S.C. § 3582(c)(2). In denying his request, the
district court noted that “the defendant discharged the sentence in [the Texas
conviction] of 87 (eighty-seven) months [of] imprisonment, on July 6, 2012,”
and that Chapple was “currently serving sentences for cases out of New Jersey
and California.” Chapple then appealed, but his appeal was not within the 14-
day time limit imposed by Rule 4(b)(1)(A) of the Federal Rules of Appellate
Procedure. Furthermore, he did not file a motion for an extension of time to
file a notice of appeal. In the light of the unique circumstances 1 contributing
to the delay in Chapple’s appeal, however, the Government expressly waived
this non-jurisdictional requirement. See United States v. Martinez, 496 F.3d
387, 388 (5th Cir. 2007) (finding that the deadline for filing a notice of appeal


      1  Specifically, Chapple did not receive notice of the district court’s denial of his
§ 3582(c)(2) motion because the denial was sent to his former attorney, who had been
deceased for nine years.
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                                 No. 15-20662
under Rule 4(b)(1)(A) of the Federal Rules of Appellate Procedure in criminal
cases is not jurisdictional and may be waived).
                                       II.
      We review a district court’s interpretations of the Sentencing Guidelines
de novo, and its factual findings for clear error. United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009). Further, we review a district court’s decision in
response to a § 3582(c)(2) motion for sentence reduction under an abuse of
discretion standard. Id. If the district court “bases its decision on an error of
law or a clearly erroneous assessment of the evidence,” the court abuses its
discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011)
(quoting United States v. Smith, 417 F.3d 483, 486-87 (5th Cir. 2005)). Claims
that were not raised before the district court are subject to plain error review.
Evans, 587 F.3d at 671.
                                      III.
      Chapple contends that the district court erred in denying his motion for
sentence reduction under § 3582(c)(2) and that the retroactive application of
Amendment 782 should reduce his previously served sentence, thereby
hastening his ultimate release from prison. His argument centers on the
Supreme Court’s decision in Garlotte v. Fordice, 515 U.S. 39 (1995), in which
the Court held that a prisoner serving consecutive sentences could attack the
earlier sentence in the context of collateral review because he was “in custody”
for the purposes of filing a habeas petition. Chapple also raises a due process
argument for the first time on appeal.
      In general, § 3582 limits the ability of a court to reduce a sentence term
that has already been imposed. Subsection (c)(2) of § 3582, however, provides:
      [I]n 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
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                                      No. 15-20662
       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.
18 U.S.C. § 3582(c)(2) (2012) (emphasis added).                   The applicable policy
statement here is § 1B1.10 of the Sentencing Guidelines. As the Supreme
Court explained in Dillon v. United States, 560 U.S. 817, 826 (2010), Section
3582(c)(2) thereby articulates a two-step inquiry: “A court must first determine
that a reduction is consistent with § 1B1.10 before it may consider whether the
authorized reduction is warranted, either in whole or in part, according to the
factors set forth in § 3553(a).”
       In particular, § 1B1.10(b)(2)(C) of the Guidelines prohibits a court from
reducing a term of imprisonment to a period “less than the term of
imprisonment the defendant has already served.”                    The Commentary to
§ 1B1.10 reiterates: “In no case, however, shall the term of imprisonment be
reduced below time served.” U.S.S.G. § 1B1.10 n.3. Amendment 782 became
retroactively applicable on November 1, 2015, to defendants who were
sentenced prior to the effective date for eligible offenses. 2 Because Chapple
had already served the sentence that was eligible for reduction under
Amendment 782, his § 3582(c)(2) motion was not “consistent with § 1B1.10.”
Thus, the modification was appropriately rejected, and its denial did not result
in an abuse of discretion.




       2 Amendment 782 “revises the guidelines applicable to drug trafficking offenses by
changing how the base offense levels in the Drug Quantity Table in §2D1.1 . . . incorporate
the statutory mandatory minimum penalties for such offenses”; in particular, it “reduces by
two levels the offense levels assigned to the quantities that trigger the statutory mandatory
minimum penalties.” U.S. SENTENCING GUIDELINES MANUAL, SUPPLEMENT TO APPENDIX C,
amend. 782, at 70 (U.S. Sentencing Comm’n 2016).
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                                        No. 15-20662
       Chapple, relying on habeas corpus jurisprudence and quoting language
from Garlotte, 515 U.S. at 40, argues that he is serving what amounts to a
“continuous stream” of imprisonment. As such, Chapple contends, the district
court should have “aggregat[ed] the consecutive sentences for the purpose of a
retroactive sentence reduction [that] would advance [his] release date.” 3
Chapple also cites to 18 U.S.C. § 3584(c), which states that “[m]ultiple terms
of imprisonment ordered to run consecutively or concurrently shall be treated
for administrative purposes as a single, aggregate term of imprisonment.” 18
U.S.C. § 3584(c).       The Government counters that Garlotte pertains to the
habeas corpus context, which is                    not subject to the limitation in
§ 1B1.10(b)(2)(C) that “[i]n no event may the reduced term of imprisonment
[due to a retroactive Guidelines Amendment] be less than the term of
imprisonment the defendant has already served.” U.S.S.G. § 1B1.10(b)(2)(C).
The Government further responds that § 3584 only applies to aggregation “for
administrative purposes” and does not impact the court’s judicial discretion
under § 3582. We find the Government’s argument, based on § 1B1.10(b)(2)(C),
to be more sound.
       Although this question has not been previously addressed in this Circuit,
it has been addressed in other circuits. 4 Indeed, the First Circuit’s decision in
United States v. Vaughn, 806 F.3d 640 (1st Cir. 2015), contains facts that are
very similar to those of the instant case. In Vaughn, the First Circuit affirmed
the district court’s denial of Vaughn’s motion for a sentence reduction under
18 U.S.C. § 3582(c)(2). Vaughn had received two separate convictions for two



       3 Chapple claims that if Amendment 782 had been in place when he was sentenced,
“he would have been sentenced to to [sic] 57-71 months (i.e., approximately 16-30 months less
than the sentence he actually received) . . . .” Accordingly, the sentence reduction “would
advance his release date by no less than 16-30 months.”
       4 See, e.g., United States v. Parker, 472 F. App’x 415, 417 (7th Cir. 2012); United States

v. Gamble, 572 F.3d 472, 474-75 (8th Cir. 2009).
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                                       No. 15-20662
different crimes, on separate instances, from two different judges. Vaughn,
806 F.3d at 641. Vaughn’s second sentence was to run consecutively to his first
sentence. Id. at 642. While serving his second sentence, Vaughn made a
motion in the district court for a § 3582(c)(2) reduction in his previously served
sentence based on Amendments 782 and 788 to the Sentencing Guidelines. Id.
To support his argument, Vaughn—like Chapple—referred to Garlotte and the
habeas “in custody” requirement. Id. at 645. The First Circuit distinguished
habeas as a “unique context” and affirmed the district court’s denial of the
sentence reduction on the basis of § 1B1.10(b)(2)(C). Id. at 643, 645. We agree.
       The Vaughn court did not find it necessary to address whether the timing
of the imposition of the sentences was material; that is, whether
“simultaneously imposed consecutive sentences” might be aggregated, whereas
sentences that were imposed separately might not be. 5 Vaughn, 806 F.3d at
644. The court did note with respect to the timing that “[t]here is no . . .
fairness concern when, as here, a defendant commits a crime while
incarcerated and receives an additional consecutive sentence while he is
already serving the first sentence.”              Id. Similarly, Chapple received his
consecutive sentences on separate occasions. Thus, we find it unnecessary to
address the possibility that simultaneously imposed sentences might raise
fairness concerns.
       Moreover, we find that Chapple’s argument that the district court’s
denial of the § 3582(c)(2) motion violates his rights under the Due Process



       5  For example, in Garlotte the consecutive sentences of three years and life
imprisonment were simultaneously imposed. Garlotte, 515 U.S. at 44–45. The Vaughn court
was sure to note that it “express[ed] no opinion on the question” of “whether it was necessary
to the [Garlotte] Court’s holding that the consecutive sentences there were simultaneously
imposed.” Vaughn, 806 F.3d at 645 & n.3. Even if such a situation affects the analysis, it is
not apparent that this distinction would carry over into the § 3582(c)(2) context; the concept
of “in custody” for the purposes of habeas proceedings has been “very liberally construed” by
the Supreme Court. Id. at 645 (quoting Garlotte, 515 U.S. at 45).
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                                No. 15-20662
Clauses of the Fifth and Fourteenth Amendments fails under plain error
review. No error has occurred because the granting of a sentence reduction is
discretionary. See Evans, 587 F.3d at 673 & n.9. In any event, the district
court’s understanding of § 1B1.10(b)(2)(C) was correct.
                                     IV.
      In sum, we find that the district court did not abuse its discretion in
denying Chapple’s § 3582(c)(2) motion for a reduction in his previously served
sentence. Accordingly, we AFFIRM.




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