                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-25-2009

USA v. Brett Styer
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2951




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-2951


                           UNITED STATES OF AMERICA

                                            v.

                                    BRETT STYER,
                                      a/k/a FLY,
                                                 Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Crim. No. 02-cr-00570-001)
                   District Judge: Honorable Legrome D. Davis


                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 2, 2009


                   Before: BARRY, WEIS, and ROTH, Circuit Judges

                            (Opinion Filed: March 25, 2009)


                                        OPINION




BARRY, Circuit Judge

       Defendant Brett Styer appeals the District Court’s June 6, 2008 order denying his

motion pursuant to 18 U.S.C. § 3582(c) for modification of his sentence in light of the
recent retroactive amendment to the crack cocaine Sentencing Guidelines. See 18 U.S.C.

§ 3582(c); U.S.S.G. § 1B1.10. We will affirm.

                                              I.

       Pursuant to a written plea agreement, Styer pled guilty on November 20, 2002 to a

13-count Superceding Information charging him with distribution of more than five

grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); distribution of

more than 5 grams of cocaine base within 1,000 feet of a school zone, in violation of 21

U.S.C. § 860; and possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Styer’s original guideline range was 151-188 months, based on an offense

level of 31 and a criminal history category of IV. The District Court imposed a within-

guidelines sentence of 180 months incarceration on May 5, 2003.

       By letter of May 21, 2008, the Federal Community Defender Office for the Eastern

District of Pennsylvania, as part of a screening committee that also includes members of

the United States Attorney’s Office and the Probation Office, notified the District Court

that Styer was eligible for a retroactive reduction of his sentence by virtue of the recent

amendment to the Sentencing Guidelines regarding the applicable range for crack cocaine

offenses. By order of June 6, 2008, the Court concluded that although Styer was eligible

for a reduction, “consideration of the § 3553(a) factors and the safety and welfare of the

public make reduction of Styer’s sentence inappropriate.” (App. 50.) Styer then formally

moved for a reduction of sentence, citing, in addition to the amendment, his



                                            -2-
commendable conduct post-conviction.1 The Court again refused to reduce the sentence,

referring to its order of June 6, 2008 and the justifications articulated therein. (A. 74.)

Styer timely appealed that decision.

                                              II.2

       Effective November 1, 2007, the United States Sentencing Commission adopted

Amendment 706, which modified the guideline ranges applicable to crack cocaine

offenses and generally reduced by two the base offense levels for such offenses under §

2D1.1(c). U.S.S.G. App. C, Amend. 706 (Nov. 1, 2007); see United States v. Wise, 515

F.3d 207, 220 (3rd Cir. 2008). The Sentencing Commission later declared Amendment

706 to be retroactive. U.S.S.G. App. C., Amend. 713 (May 1, 2008).

       Styer sought a reduction of his sentence in accordance with Amendment 706 by

moving pursuant to 18 U.S.C. § 3582(c)(2), which provides, in relevant part:

       [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 . . . , 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.
   1
     Counsel argued that Styer had “completed courses in impulse control, cooking,
public speaking and parenting” and “prepared a video which was shown to a middle
school in Chester County to help dissuade students from participating in crimes.” (A. 53.)
Several letters from schoolchildren that had seen the video were also submitted, along
with Styer’s own letter in which he acknowledged his criminal past but professed his
reformed ways.
   2
     The District Court had jurisdiction to review Styer’s motion for modification of his
sentence under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

                                             -3-
The determination as to whether a reduction is warranted—“the court may reduce”

(emphasis added)—is committed to the discretion of the district court. Accordingly, as

our sister circuits have held, we apply an abuse of discretion standard. See, e.g., United

States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007); United States v. Rodriguez-Pena, 470

F.3d 431, 432 (1st Cir. 2006); United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir.

2005).

         Styer argues: (1) that the District Court denied him due process in resolving his §

3582(c)(2) motion without a hearing; (2) that the denial of that motion was predicated, in

part, on an erroneous and unsupported factual conclusion; and (3) that his unmodified

sentence is substantively unreasonable. He urges us to remand with an instruction that the

Court consider a modified sentence within the amended guideline range of 121-151

months, the same range suggested by the Federal Community Defender’s Office in its

letter to the Court of May 21, 2008. None of these contentions has merit.

                                              A.

         Styer was not entitled to an evidentiary hearing on his § 3582(c)(2) motion.

Section 1B1.10(a)(3) clearly states that “proceedings under 18 U.S.C. § 3582(c)(2) and

this policy statement do not constitute a full resentencing of the defendant.” U.S.S.G. §

1B1.10(a)(3); see also United States v. Faulks, 201 F.3d 208, 210 (3d Cir. 2000)

(distinguishing between a full resentencing and a proceeding under 18 U.S.C. §

3582(c)(2)). Instead, courts are constrained to consider only the retroactive amendment at



                                             -4-
issue and are instructed to “leave all other guideline application decisions unaffected.” Id.

§ 1B1.10(b)(1); see United States v. McBride, 283 F.3d 612, 615 (3d Cir. 2002). As other

Courts of Appeals have found, “a proceeding under 18 U.S.C. § 3582(c) is not a do-over

of an original sentencing proceeding where a defendant is cloaked in rights mandated by

statutory law and the Constitution.” United States v. Tidwell, 178 F.3d 946, 949 (7th Cir.

1999); see United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000). Indeed, according

to Rule 43(b)(4) of the Federal Rules of Criminal Procedure, a defendant “need not be

present” for a § 3582(c)(2) proceeding. Fed. R. Crim. P. 43(b)(4).3

       How a court decides to consider a § 3582(c)(2) motion is a matter of discretion.

See Tidwell, 178 F.3d at 949. Here, the District Court, which had sentenced Styer in the

first instance, was familiar with the facts of the case and in the best position to determine

whether a hearing was warranted. The Court considered Styer’s factual arguments before

concluding that a reduction was not warranted. Critically, Styer does not identify what

information he would have presented at a hearing that he did not include in the papers



   3
      While Styer cites several cases in which courts have ordered factual hearings on §
3582(c) motions, none stands for the proposition that a court must do so on all such
motions. (Appellant’s Br. 12.) Moreover, Styer’s reliance on United States v. Byfield, 391
F.3d 277 (D.C. Cir. 2004), is misplaced. While the D.C. Circuit in Byfield reversed and
remanded where the district court denied without a hearing the defendant’s motion to
modify his sentence under § 3582(c)(2), the factual question in that case was whether a
listed amendment at issue had the effect of lowering the defendant’s sentence in
accordance with § 1B1.10(a)(2)(B). See id. at 280-81. The question before us is
fundamentally different. Here, there is no dispute that Amendment 706 rendered Styer
eligible for a reduced sentence; the relevant question, however, is whether a reduction
was warranted.

                                            -5-
supporting his motion. Accordingly, the Court acted within its discretion when it

determined that a hearing was not necessary.

                                              B.

       Next, the District Court did not abuse its discretion by concluding that Styer

continued to pose a threat to public safety. The record demonstrates that the Court

recognized Styer’s rehabilitative efforts and, in fact, commended him on his “progress

since incarceration.” (A. 74.) Ultimately, however, the Court concluded that this single

factor did not override the concerns articulated in its order of June 6, 2008, including the

nature of Styer’s crime, his criminal history, his use of firearms, the need for deterrence,

and public safety.4 While Styer disagrees with the comparatively little weight the Court

accorded his post-conviction conduct in relation to other factors, we cannot conclude that

the Court’s reasoned balancing of those factors was an abuse of discretion.

                                              C.

       Finally, we consider whether Styer’s unmodified sentence of 180 months was

substantively reasonable, that is, “‘whether the district judge imposed the sentence he or

she did for reasons that are logical and consistent with the factors set forth in section

3553(a).’” United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006) (quoting United

States v. Williams, 425 F.3d 478, 481 (7th Cir.2005)). In proceedings under § 3582(c)(2),



   4
     We also note that the commentary to § 1B1.10 provides that courts may consider
post-conviction conduct but are under no obligation to do so. U.S.S.G. § 1B1.10, cmt.
n.1(B)(iii).

                                             -6-
the § 3553(a) factors are supplemented by the directive that the court “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, cmt. n.1(b)(ii).

As the district court is in the best position to determine the appropriate sentence, we may

not reverse simply because we would have imposed a different sentence. United States v.

Wise, 515 F.3d 207, 218 (3d Cir. 2008). Rather, we must ensure that the sentence, even if

beyond the guideline range, is “within the broad range of possible sentences that can be

considered reasonable in light of the § 3553(a) factors.” Id.

       Styer argues that his sentence was substantively unreasonable in light of the

reduction for which he was eligible per Amendment 706. We disagree. Taken as a

whole, and given the deferential standard with which we review sentencing

determinations, we find that the District Court’s decision to leave the sentence alone was

reached after consideration of the factors set forth in § 3553(a) and the commentary to §

1B1.10. The Court stressed that Styer was a danger to the community, that he had shot

five times at a police officer, and that he had endeavored to conceal firearms from

investigators. Thus, while the Court recognized Styer’s eligibility for a reduction under

the amended guidelines, it carefully articulated its reasons for not granting that reduction.

This weighing and consideration of multiple factors, expressly left to a court’s discretion,

is exactly the type of “reasoned appraisal” to which we defer on review. Kimbrough v.

United States, 128 S.Ct. 558, 576 (2007).



                                            -7-
                                            III.

       For the reasons set forth above, we will affirm the District Court’s order denying

the request for a modified sentence.




                                           -8-
