                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0627n.06

                                            No. 08-5903                                   FILED
                                                                                      Sep 02, 2009
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE EASTERN
                                       )                  DISTRICT OF TENNESSEE
LESTER TERRELL,                        )
                                       )
                                                                  OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE, GIBBONS, and FRIEDMAN,* Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge.                      Defendant-Appellant Lester Terrell

(“Terrell”) appeals the district court’s judgment partially granting his motion to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2), in light of Amendment 706 to the Sentencing Guidelines.

Terrell asserts that the district court abused its discretion in awarding him only a four-month

reduction in his sentence by (1) relying on an erroneous fact and (2) departing upward from Terrell’s

amended effective guidelines range without giving him notice or a hearing as required by Federal

Rule of Criminal Procedure 32(h). For the reasons discussed below, we AFFIRM the district court’s

judgment.




       *
       The Honorable Daniel M. Friedman, United States Circuit Judge for the United States Court
of Appeals for the Federal Circuit, sitting by designation.
                                 I. FACTS AND PROCEDURE

       In February 2005, Terrell pleaded guilty to possession with intent to distribute five grams or

more of cocaine base in violation of 21 U.S.C. § 841, pursuant to a written plea agreement. A

presentence report (“PSR”) was prepared, which assigned Terrell a total offense level of 23 and a

criminal history category of III, resulting in a guidelines range of 57 to 71 months. However, Terrell

was subject to a statutory mandatory-minimum sentence of 60 months pursuant to 21 U.S.C.

§ 841(b)(1)(B); thus, Terrell’s effective guidelines range was 60 to 71 months. On June 6, 2005, the

district court sentenced Terrell to 71 months of imprisonment.

       On April 4, 2008, Terrell filed a “Motion to Reduce Sentence Pursuant to 18 USC [§]

3582(c),” asserting that Amendment 706 to the Sentencing Guidelines, made retroactive on March

3, 2008, reduced Terrell’s total offense level by two points. Record on Appeal (“ROA”) at 37-38

(Mot. to Reduce Sent.). Terrell contended that this reduced offense level resulted in an amended

guidelines range of 46 to 57 months; however, because of the applicable mandatory minimum,

Terrell’s amended effective guidelines range was 60 months. Terrell asserted that his sentence

should be reduced to 60 months.

       On April 10, 2008, the district court ordered the government to file a response to Terrell’s

motion and instructed the probation office to “prepare and provide to the Court and to counsel for

the parties a supplemental sentencing report or Sentence Modification Report” addressing several

issues, including “[a]ny information available . . . concerning [Terrell]’s post-sentencing conduct or

misconduct while imprisoned in federal custody[,] . . . relevant public safety considerations,

including the danger to any person or the community that may be posed by a reduction in the term

of imprisonment[, and a] recommendation for the Court’s disposition of the 18 U.S.C. § 3582(c)(2)


                                                  2
motion.” Record (“R.”) at 101 (4/10/08 Order at 1-2). The district court also informed the parties

that they could object to the probation office report.

        The government filed its response on April 28, 2008, asserting that “Amendment 706 does

not lower the applicable Guidelines range in the instant case because a mandatory minimum

sentence, unchanged by the amendment, established the floor for the Guidelines range.” ROA at 39

(Resp. to Def.’s § 3582(c) Mot. at 1). Terrell then filed a motion on May 13, 2008, requesting oral

argument “to address the continual changing and shifting responses,” ROA at 44 (Request for Oral

Argument), which the district court summarily denied on May 15, 2008. On June 17, 2008, the

probation department disclosed a “Memorandum Regarding Retroactivity” (“MRR”), stating, among

other things, that “Terrell has completed the 40-hour drug education course, but has elected to not

sign-up for the 500-hour RDAP Program.” MRR at 3. Neither party asserts failure to receive a copy

of this MRR, nor did either party file any objections to the MRR at any time.

        On June 24, 2008, the district court partially granted Terrell’s § 3582(c)(2) motion. The

district court concluded that “[p]ursuant to Amendment 706, the guideline range applicable to Mr.

Terrell is 60 months.” ROA at 46 (06/24/08 Mem. and Order at 1). The district court then stated

that it had

        considered not only the guidelines, but it also considered the factors specified in 18
        U.S.C. § 3553(a). Most prominent among those factors with respect to Mr. Terrell
        was the need to protect the public from further crimes of the defendant. 18 U.S.C.
        § 3553(a)(2)(C). This factor was, and is, particularly applicable to Mr. Terrell
        because of his lengthy criminal record, which includes a 2nd Degree Murder
        conviction.

ROA at 46-47 (06/24/08 Mem. and Order). The district court then declined to reduce Terrell’s

sentence to 60 months “[b]ecause of the need to protect the public, and because the defendant has



                                                  3
elected not to participate in the Bureau of Prison’s 500 hour [Residential Drug Abuse Program

(“RDAP”)], despite having a substance abuse problem, thereby increasing the possibility of

recidivism.” ROA at 47 (06/24/08 Mem. and Order at 2). However, the district court did find that

Terrell had “made some attempt to better himself during the period of his incarceration,” and thus

warranted a four-month sentence reduction. Id.

       The same day, the government filed a motion to reconsider, asserting that Terrell was not

eligible for a reduction under § 3582(c)(2) because Amendment 706 did not lower his guidelines

range,1 which the district court denied on July 2, 2008. The government did not appeal this

determination. On June 30, 2008, while the government’s motion was pending in the district court,

Terrell filed a pro se motion responding to the government’s motion to reconsider, requesting a

ruling on his § 3582(c)(2) motion, and requesting either the appointment of new counsel or



       1
          A recent case from our circuit confronts a similar issue, but is distinguishable from the
instant appeal. See United States v. Johnson, 564 F.3d 419 (6th Cir. 2009). In Johnson, the
defendant’s original guidelines range resulting from his offense level and criminal history category
was 235 to 293 months, but the defendant was subject to a mandatory-minimum sentence of 240
months, resulting in an effective guidelines range of 240 to 293 months. The government filed a
motion for downward departure under 18 U.S.C. § 3553(e), which the district court granted, and the
district court sentenced the defendant to 108 months of imprisonment. In light of Amendment 706,
the defendant made a motion to reduce his sentence pursuant to § 3582(c)(2), which the district court
denied. A panel of this court affirmed, holding that the defendant “was not in fact sentenced based
on a Guidelines range that was subsequently reduced. Rather, his sentence was based on the
mandatory minimum imposed by 21 U.S.C. § 841(b)(1)(A), which remained unchanged by
Guidelines Amendment 706.” Id. at 423. The panel stressed that “if Johnson were resentenced
today, the amended Guidelines would still require a sentence of 240 months, and the court would
be departing from this same 240-month baseline if again presented with the government’s
substantial-assistance motion.” Id.
         Johnson is distinguishable from the instant case because, although Terrell was subject to a
mandatory minimum that set the floor for his original guidelines range and was unchanged by
Amendment 706, unlike Johnson, Terrell was originally sentenced at the high end of his guidelines
range. Amendment 706 lowered the top of Terrell’s guidelines range, thereby narrowing Terrell’s
effective guidelines range to 60 months.

                                                 4
permission to proceed pro se. On July 7, 2008, the district court denied as moot Terrell’s motion for

a ruling and for the appointment of new counsel because the district court had entered a final

decision on the § 3582(c)(2) motion on June 24.

       On July 7, Terrell filed an unverified and unsworn pro se motion to reconsider the June 24

order, asserting that he had completed the first phase of the Drug Abuse Education Program and was

on a waiting list for the 500-hour RDAP. To this motion, Terrell attached an undated Institutional

Adjustment Report that states that he completed the 40-hour Drug Education Program in March

2007, but that did not mention that Terrell was on a waiting list for the 500-hour RDAP.2 This report

merely states that “[a]t the time of sentencing, it was recommended that inmate Terrell participate

in the 500 hour [RDAP].” ROA at 62 (Institutional Adjustment Report). The district court denied

this pro se motion on July 14, 2008, noting that Terrell was not authorized to make a motion for

reconsideration and that his proper remedy was to file a notice of appeal pursuant to Fed. R. App.

P. 4(b). The district court also concluded that, after “consider[ing] the contentions and arguments

presented by Terrell[,] . . . a further reduction in the sentence of imprisonment is [not] warranted.”

ROA at 64 (07/14/08 Order at 2). Terrell filed a pro se notice of appeal on July 18, 2008.

                                           II. ANALYSIS

A. Appellate Jurisdiction

       There is a question of appellate jurisdiction in this case and, “[a]lthough the parties did not

raise the issue of appellate jurisdiction in their briefs, we are under an independent obligation to



       2
          The Institutional Adjustment Report specifically states that Terrell “completed the 40 hour
drug education on March 36, 2007.” ROA at 62 (Institutional Adjustment Report). Although this
date is clearly a typographical error, Terrell’s certificate of completion for the program notes that he
completed the program on March 26, 2007. ROA at 61 (Certificate of Completion).

                                                   5
police our own jurisdiction.” Bonner v. Perry, 564 F.3d 424, 426 (6th Cir. 2009) (internal quotation

marks omitted). We therefore raise the issue sua sponte. A notice of appeal must “designate the

judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). “Compliance with this

Rule is both a mandatory and a jurisdictional prerequisite.” United States v. Glover, 242 F.3d 333,

335 (6th Cir. 2001) (internal quotation marks omitted); United States ex rel. Eisenstein v. City of

New York, New York, --- S. Ct. ----, 2009 WL 1576570, at *5 n.4 (quoting the Supreme Court’s

holding in Torres v. Oakland Scavenger Co., 487 U.S. 312, 318 (1988), regarding Rule 3(c)’s role

as “a jurisdictional prerequisite”); see also 16A CHARLES ALAN WRIGHT , ARTHUR R. MILLER,

EDWARD H. COOPER, & CATHERINE T. STRUVE, FEDERAL PRACTICE AND PROCEDURE : JURISDICTION

4th § 3949.6 (4th ed. 2008) (noting that the requirements of Rule 3 have been described by the

Supreme Court “as mandatory and jurisdictional”). Moreover, “a court of appeals has jurisdiction

only over the areas of a judgment specified in the notice of appeal as being appealed.” JGR, Inc. v.

Thomasville Furniture Indus., Inc., 550 F.3d 529, 532 (6th Cir. 2008). However, we must construe

a notice of appeal liberally, id., and this principle applies especially to documents filed by pro se

litigants, see Owens v. Keeling, 461 F.3d 763, 776 (6th Cir. 2006); Haines v. Kerner, 404 U.S. 519,

520 (1972).

       Terrell’s pro se notice of appeal states that “he is appealing the order of this Court dated June

6, 2008 and July 7, 2008.” ROA at 65 (Notice of Appeal). The docket sheet does not contain any

order filed or entered on June 6, 2008. Moreover, the order dated July 7, 2008, concerns only

Terrell’s pro se motion requesting “a ruling on his motion for reduction of sentence pursuant to 18

U.S.C. § 3582(c)(2)” and Terrell’s request for new counsel or to proceed pro se. R. at 114 (07/07/08

Order at 1). Thus, by its express terms, Terrell’s notice of appeal does not appeal the district court’s


                                                   6
June 24, 2008 order partially granting a reduction of Terrell’s sentence, the sole issue that Terrell

addresses in his brief before this court. Therefore, in order for this court to have jurisdiction over

this issue, we must conclude that Terrell’s notice of appeal, liberally construed, encompasses the

district court’s June 24, 2008 order. We so hold. The only order that the district court issued in June

was the June 24 order; there was never any order issued on June 6 or any other day in June regarding

Terrell’s case. Thus, we believe that it is clear that Terrell’s mention of a June order was in

reference to the June 24 order.

       Furthermore, while generally “the failure [of a party] to designate [in a notice of appeal] the

judgment, order, or part thereof being appealed” strips this court of jurisdiction over the appeal,

Glover, 242 F.3d at 336-37 (internal quotation marks omitted), we have held that “‘a notice of appeal

that names only a post-judgment decision may extend to the judgment itself if it can be reasonably

inferred from the notice of appeal that the intent of the appellant was to appeal from the final

judgment and it also appears that the appellee has not been misled,’” United States v. Grenier, 513

F.3d 632, 635 (6th Cir. 2008) (quoting Harris v. United States, 170 F.3d 607, 608 (6th Cir. 1999)).

A court may “rel[y] upon briefs and other subsequent filings to infer the intent of the appellant.” Id.

In the instant case, Terrell’s brief clearly indicates that he is appealing the June 24 order; the

correctness of that order is the only issue discussed in his brief. Further, the government would not

be prejudiced by our consideration of the June 24 order because the government’s brief also

addresses only the June 24 order. Thus, the government has not been misled by Terrell’s notice of

appeal. In sum, we conclude that we have jurisdiction to review the merits of the June 24 order.




                                                  7
B. Standard of Review

       We review “a district court’s decision to grant or deny a motion to modify under 18 U.S.C.

§ 3582 for an abuse of discretion.” United States v. Peveler, 359 F.3d 369, 373 (6th Cir. 2004)

(citing United States v. Ursery, 109 F.3d 1129, 1137 (6th Cir. 1997)). “Abuse of discretion exists

only when a district court relies upon clearly erroneous factual findings, applies the law improperly,

or uses an erroneous legal standard.” DiLaura v. Twp. of Ann Arbor, 471 F.3d 666, 671 (6th Cir.

2006) (internal quotation marks omitted).

C. Reduction of Sentence under 18 U.S.C. § 3582(c)(2)

       “The authority of a district court to resentence a defendant is limited by statute.” United

States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001). Pursuant to 18 U.S.C. § 3582(c)(2), the district

court may reduce a previously imposed sentence

       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) . . . 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). However, there is no right to a reduced sentence. See U.S.S.G. § 1B1.10

cmt. background (noting that a reduction under § 1B1.10 is discretionary and “does not entitle a

defendant to a reduced term of imprisonment as a matter of right”); United States v. Johnson, 564

F.3d 419, 421 (6th Cir. 2009) (noting that “a district court has the discretion to reduce a sentence

based upon a change in the Sentencing Guidelines”); Ursery, 109 F.3d at 1137 (stating that “a district

court has the discretion to deny a section 3582(c)(2) motion, even if the retroactive amendment has

lowered the guideline range”).




                                                  8
       Amendment 706, as further amended by Amendment 711, reduced the base offense level of

most crack cocaine offenses by two levels. U.S.S.G. MANUAL app. C amend. 706, 711 (Supp. 2008).

Amendment 706 was made retroactive by U.S.S.G. § 1B1.10, which also articulates the procedure

for evaluating a sentence reduction under § 3582(c)(2) based upon the amendment:

       (b) Determination of Reduction in Term of Imprisonment.—

               (1) In General.—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 guideline range that would have been
               applicable to the defendant if the amendment(s) to the guidelines
               listed in subsection (c) had been in effect at the time the defendant
               was sentenced. In making such determination, the court shall
               substitute only the amendments listed in subsection (c) for the
               corresponding guideline provisions that were applied when the
               defendant was sentenced and shall leave all other guideline
               application decisions unaffected.

U.S.S.G. § 1B1.10(b)(1). When determining whether a defendant should receive a sentence

reduction, the district court must consider both the 18 U.S.C. § 3553(a) factors and “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,” and “may consider post-sentencing conduct of the defendant.”

U.S.S.G. § 1B1.10 cmt. n.1(B) (emphasis added). Furthermore, “proceedings under 18 U.S.C. [§]

3582(c)(2) and [§ 1B1.10] do not constitute a full resentencing of the defendant.” § 1B1.10(a)(3).

       Terrell asserts that the district court abused its discretion when it reduced Terrell’s sentence

by only four months, rather than by the eleven months requested by Terrell, because (1) the reduced

sentence was predicated on an allegedly erroneous fact (that Terrell did not participate in the 500-

hour RDAP); and (2) Fed. R. Crim. P. 32(h) requires a district court to give a defendant notice and




                                                  9
a hearing before imposing a sentence that departs upward from the guidelines range. Each argument

lacks merit.

        First, the district court was not clearly erroneous in concluding that Terrell had not

participated in the 500-hour RDAP. A district court’s factual finding is “clearly erroneous when,

although there may be evidence to support it, the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been committed.” United States v. Oliver, 397

F.3d 369, 374 (6th Cir. 2005) (internal quotation marks omitted). Terrell has presented evidence that

he has completed a 40-hour drug education program, in the form of his program completion

certificate, but this program is different from the 500-hour RDAP. See ROA at 62 (Institutional

Adjustment Report) (listing the RDAP and the drug education program separately). However,

contrary to Terrell’s assertion, the Institutional Adjustment Report that he submitted to the district

court does not reflect that Terrell was on a waiting list for the 500-hour RDAP. This report merely

notes that, “[a]t the time of sentencing, it was recommended that inmate Terrell participate in the 500

hour [RDAP].” Id. Other than Terrell’s unverified and unsubstantiated assertion in his motion to

reconsider that he was “on the waiting list for the next available docket for the 500 hour RDAP

program, scheduled to start in August, 2008,” ROA at 58 (Terrell Mot. to Recons. at 1),3 Terrell has

provided no evidence to refute the district court’s finding that Terrell elected not to participate in the

500-hour RDAP. On this record, we cannot say that we “are left with the definite and firm

conviction that a mistake has been committed.” Oliver, 397 F.3d at 374.




        3
       There is no evidence in the record regarding whether Terrell did in fact start this program
in August 2008.

                                                   10
       Second, although Rule 32(h) requires that, “[b]efore the court may depart from the applicable

sentencing range on a ground not identified for departure either in the presentence report or in a

party’s prehearing submission, the court must give the parties reasonable notice that it is

contemplating such a departure,” Fed. R. Crim. P. 32(h), the district court’s decision to reduce

partially Terrell’s sentence was not an upward departure. Instead, if we were to classify the district

court’s decision to sentence Terrell above the amended effective guidelines range as an outside-the-

guidelines-range sentence, we would classify the action as a variance, given the district court’s

reliance on the § 3553(a) factors in choosing the partial reduction. See United States v. Jordan, 544

F.3d 656, 671 n.12 (6th Cir. 2008) (explaining that “[a] sentence outside the Guidelines . . . based

on the § 3553(a) factors is a ‘variance’”). The Supreme Court has recently held that Rule 32(h) does

not apply to variances. Irizarry v. United States, --- U.S. ---, 128 S. Ct. 2198, 2203 (2008).

Therefore, Rule 32(h) does not provide Terrell with a special right to a hearing or notice.

       Moreover, Terrell was not entitled to a hearing after he filed his motion to reconsider

claiming that the district court erred in its determination regarding the 500-hour RDAP because, as

explained above, Terrell failed to provide any evidence to the district court showing that he was on

the waiting list for the 500-hour RDAP. Terrell merely asserted in his unverified and unsworn

motion to reconsider that he was on the waiting list. Because of the unverified and unsworn nature

of the motion, the motion itself is not evidence. See 28 U.S.C. § 1746 (provision for unsworn

declarations under penalty of perjury). Given Terrell’s failure to offer any evidence to contradict the

PSR’s statement that Terrell elected not to participate in the 500-hour RDAP, the district court did

not need to hold a hearing to review the issue. Therefore, we conclude that the district court did not

abuse its discretion when it reduced Terrell’s sentence by only four months.


                                                  11
                                      III. CONCLUSION

       Because the district court did not abuse its discretion in awarding Terrell only a four-month

reduction in his sentence, we AFFIRM the district court’s judgment partially granting Terrell’s

§ 3852(c)(2) motion.




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