15-3245-cr (L)
United States v. Lewis

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
19th day of October, two thousand sixteen.

Present:
            GUIDO CALABRESI
            DEBRA ANN LIVINGSTON,
                    Circuit Judges,
            JED S. RAKOFF
                    District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                         Plaintiff-Appellee,

                 v.                                                15-3245-cr(L)
                                                                   15-3307-cr(CON)

SAMOL UM, AKA Sam, ANDREW BLAIR, ROBERT
EDWARDS, AKA Robert Williams, AKA Bo-Rock,
KEVIN GALLMAN, AKA Kev, Robert Bonner, Floyd
Williams, AKA Mouse, CARLENE O’CONNOR,
ROBERT BOWEN, AKA Cuz, AKA Cream, AKA
Bowen Kizair, CONNIE ALSTON, HENRY NEAL,
AKA Hank, TREMAINE WARD, AKA Papi, JASON
ROMAN, AKA Baby J, AKA JS,


*
   Judge Jed S. Rakoff, of the United States District Court for the Southern District, sitting by
designation.


                                                1
                       Defendants,

ANTHONY LEWIS, AKA Tony, AKA Barry
Fitzgerald James, AKA Jamaican Tony,

                  Defendant-Appellant.
_____________________________________

For Defendant-Appellant:                 RICHARD A. REEVE, Sheehan & Reeve, New Haven,
                                         CT

For Defendant-Appellee:                  ANTHONY E. KAPLAN, Assistant United States
                                         Attorney (SANDRA S. GLOVER, Assistant United States
                                         Attorney, of counsel, on the brief), for Dierdre M.
                                         Daly, United States Attorney for the District of
                                         Connecticut, New Haven, CT

       UPON       DUE       CONSIDERATION         WHEREOF      it   is    hereby   ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       On December 3, 2004, Defendant-Appellant Anthony Lewis (“Defendant”) pled guilty to

one count of conspiring to possess with intent to distribute fifty or more grams of cocaine

base/crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846. The

district court initially calculated Defendant’s total offense level as 37 — 38 for unlawful

possession of 1.5 kilograms or more of cocaine under § 2D1.1(c)(1) of the Sentencing

Guidelines, with a two-level increase for possession of a firearm under § 2D1.1(b)(1), and a

three-level decrease for acceptance of responsibility under § 3E1.1(a).   While Defendant was

also a career offender, his total offense level under the Career Offender Table would only have

been 34, U.S.S.G. § 4B1.1(b), and so, as required by the Guidelines, the district court used

Defendant’s drug table offense level in calculating the governing Guidelines range.   Based on

his total offense level of 37 and his Criminal History Category of VI, Defendant faced 360

months to life in prison.




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       At sentencing, while the Government indicated that Defendant had “provide[d]

assistance,” it maintained that he “did not live up to his cooperation agreement” in connection

with trial testimony he provided.   App’x 58–60.    The Government therefore elected not to file

a motion for a departure from the Guidelines. See U.S.S.G. § 5K1.1. Nonetheless the district

court (Kravitz, J.) sentenced Defendant to a below-Guidelines sentence of 192 months, together

with five years of supervised release, based on Defendant’s “substantial cooperation and

assistance to the Government,” his age, and “all the other factors set forth in 18 U.S.C.

§ 3553(a).” App’x 77.

       Congress and the Sentencing Commission subsequently reduced the Guidelines for

crack-cocaine offenses in 2007, 2010, and 2014.       Following each change, Defendant filed a

motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction.      The district court denied each

motion.     Defendant appeals the most recent two denials.   We review de novo a district court’s

determination, as here, that a defendant is ineligible for a sentencing reduction. United States v.

Christie, 736 F.3d 191, 195 (2d Cir. 2013).

       I.       Defendant’s 2011 Motion

       As relevant here, Defendant filed his first motion for a sentence reduction on December

30, 2011 following passage of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat.

2372 (2010).     Under the amended drug table, Defendant’s total offense level would have been

33, leading to a Guidelines range of 235 to 293 months.1      Defendant’s sentence was therefore

lower than the amended Guidelines range.




1
  The Probation Department reasoned that because Defendant was a career offender, and his
offense level under the Career Offender Table was 37 (34 after the three-level decrease for
acceptance of responsibility), that offense level dictated the plicable Guidelines range, namely

                                                3
       Section 1B1.10 of the Sentencing Guidelines, a policy statement the Supreme Court has

deemed controlling, see Dillon v. United States, 560 U.S. 817, 821 (2010); see also 18 U.S.C.

§ 3582(c)(2), provides that a district court may not reduce a defendant’s term of imprisonment to

“less than the minimum of the amended guideline range” unless the sentence was originally

lower than the then-applicable Guidelines range “pursuant to a government motion to reflect the

defendant’s substantial assistance to authorities.”     U.S.S.G. § 1B1.10(b)(2).      Accordingly,

given that any reduction in Defendant’s sentence would have produced a term of imprisonment

below the applicable amended Guidelines range, he was not entitled to a sentence reduction

absent a Government motion. See United States v. Steele, 714 F.3d 751, 755 (2d Cir. 2013).

       While Defendant admits that the Government did not file the requisite motion at his

sentencing, he argues that he still rendered substantial assistance that led to his below-Guidelines

sentence, and that, therefore, he is still eligible for a sentence reduction.               Section

§ 1B1.10(b)(2)(B) is unambiguous, however, in requiring a government motion.

       Further, the record does not suggest that Defendant provided the amount of assistance

that warranted a motion.     The Government elected not to file a § 5K1.1 motion because it

believed Defendant did not testify truthfully.   The district court likewise recognized that while

Defendant’s cooperation was “of assistance pretrial” so as to justify consideration under 18

U.S.C. § 3553(a), App’x 39, it was not “significant [enough] to generate the 5k1 [motion],” id. at

68.

       Our decision in United States v. Erskine, 717 F.3d 131 (2d Cir. 2013), does not counsel a

different outcome.   The footnote Defendant cites, see id. at 137 n.6, merely summarizes the



262 to 327 months. See U.S.S.G. § 4B1.1(b). This determination is irrelevant to Defendant’s
first motion, but it is of central importance to his second.


                                                 4
practical import of § 1B1.10(b)(2)(B), and it nowhere suggests that the provision of substantial

assistance is sufficient absent a motion.    The district court therefore correctly concluded that

Defendant was ineligible for a reduced sentence. See United States v. Thompson, 639 F. App’x

39, 41 (2d Cir. 2016) (summary order) (finding defendant ineligible for a sentence reduction in

part because “the government did not file a substantial-assistance motion at the time of

sentencing”).

        II.     Defendant’s 2015 Motion

        On August 24, 2015, while Defendant’s motion for reconsideration was pending, and

following an additional reduction in the crack-cocaine Sentencing Guidelines, see Sentencing

Guidelines Manual, app. C., amend. 782 (2014), Defendant filed another motion under 18 U.S.C.

§ 3582(c)(2).    Pursuant to the drug table, Defendant’s new total offense level would have been

31, leading to a Guidelines range of 188 to 235 months.      The Probation Department reasoned,

however, that under § 4B1.1(b) of the Sentencing Guidelines, Defendant’s offense level of 37

under the Career Offender Table governed. Accordingly, his total offense level would have

been 34 (after a three-level reduction for acceptance of responsibility), and his amended

Guidelines range would have been 262 to 327 months, once again rendering his actual sentence

below the applicable Guidelines range.

        On September 15, 2015, the district court summarily denied Defendant’s motion in a

form order.     Both parties appear to assume that the district court adopted the Probation

Department’s reasoning in denying Defendant’s motion.         We agree that Defendant was not

eligible for a sentence reduction on that basis.

        In determining whether a defendant is eligible for a sentence reduction, § 1B1.10(b)(1)

directs district courts to


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       determine the amended guideline range that would have been applicable to the
       defendant if the [applicable amendments] had been in effect at the time the
       defendant was sentenced. In making such determination, the court shall
       substitute only the [applicable amendments] for the corresponding guideline
       provisions that were applied when the defendant was sentenced and shall leave all
       other guideline application decisions unaffected.

Defendant’s principal claim is that he was eligible for a reduced sentence because, when he was

sentenced, the district court used his drug table offense level under § 2D1.1 of the Sentencing

Guidelines, rather than his Career Offender Table offense level under § 4B1.1(b).          Defendant

contends that such choice was a “guideline application decision[]” that cannot be disturbed. This

argument is meritless.

       Section 1B1.10(b)(1) plainly requires the district court to look to the “guideline range that

would have been applicable” had the reduction been in effect at the time of sentencing.

Determining the applicable Guidelines range involves calculating the offense level.          This, in

turn, requires applying § 4B1.1(b) of the Sentencing Guidelines, which provides that “if the

offense level for a career offender from the table in this subsection is greater than the offense

level otherwise applicable, the offense level from the table in this subsection shall apply.”

Therefore, because Defendant’s offense level under the Career Offender Table was higher than

that under the drug table, the former governed, leading to an applicable Guidelines range that

was higher than the sentence Defendant received, and rendering Defendant ineligible for a

sentence reduction.      See U.S.S.C. § 1B1.10 Application Note 1(A) (emphasis added)

(explaining that a reduction is not authorized where “an amendment . . . is applicable to the

defendant but the amendment does not have the effect of lowering the defendant's applicable

guideline range because of the operation of another guideline or statutory provision.”).

       This reasoning has support both in our Circuit, see United States v. Howard, 331 F.

App’x 818, 820 (2d Cir. 2009) (summary order) (“[D]efendant's status as a career offender was

                                                6
an independent basis for establishing a base offense level of 34. Accordingly, the application of

a new base offense level for defendant's crack cocaine conviction did not lower defendant's base

offense level as a career offender, and defendant was not entitled to a reduction in his sentence.”)

(citations omitted), and among our sister circuits, see United States v. Tellis, 748 F.3d 1305,

1309 (11th Cir. 2014) (explaining that because the defendant was a career offender, the

guidelines amendment “did not lower his offense level . . . and thus did not alter the guideline

range” and so “the district court correctly concluded that it had no discretion to lower his

sentence.”); United States v. Hubbard, 508 F. App’x 561, 562 (7th Cir. 2013) (explaining that

the defendant was sentenced under the drug-quantity guidelines only because they provided a

higher offense level than the Career Offender Table, and that “if Amendment 750 had been in

effect at the time of the original sentencing, [the defendant] would have been sentenced as a

career offender,” such that use of Career Offender Table was warranted when considering the

defendant’s motion for a sentence reduction); United States v. Counts, 500 F. App’x 220, 220–21

(4th Cir. 2012) (per curiam) (indicating that where a retroactive amendment to the guidelines

reduces a defendant’s drug table offense level to lower than that dictated by the Career Offender

Table, the latter controls on a motion for a reduced sentence).

       Our decision in United States v. McGee, 553 F.3d 225 (2d Cir. 2009) (per curiam), does

not suggest otherwise. In that case, we found a defendant eligible for a sentence reduction

where the district court explicitly granted a downward departure from the Guidelines range

dictated by the Career Offender Table to that dictated by the drug tables, thereby, in our view,

rendering the latter range the operative one for sentence-reduction purposes. 2           No such



2
 The Sentencing Commission also subsequently, and explicitly, rejected McGee’s reasoning,
making clear that the “applicable guideline range” for sentence reduction purposes is that

                                                 7
circumstance exists here—there is no allegation that the district court departed from the Career

Offender Table.     To the contrary, the district court used Defendant’s drug table offense level

under § 2D1.1 to determine the appropriate Guidelines range precisely because the base offense

level was higher thereunder.

           Following § 4B1.1(b) here likewise does not produce a “perverse” result.    Appellant’s

Br. 27.     That section of the Sentencing Guidelines was applicable both before and after the

relevant sentencing reductions, and so it governed Defendant’s sentence at all relevant times.   If

anything, it would be perverse to allow Defendant to evade the career offender guidelines simply

because he initially was subject to an even higher offense level.           Indeed, Defendant’s

interpretation would result in him facing a lower Guidelines range upon resentencing than an

identical defendant would face if sentenced for the first time.

          III.   Conclusion

          We have considered Defendant’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




determined prior to consideration of any departure. United States v. Montanez, 717 F.3d 287,
294 (2d Cir. 2013).


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