                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    July 11, 2017
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 16-2037
                                               (D.C. No. 2:00-CR-00557-LH-1)
 JAMES EARL MERIDYTH,                                     (D. N.M.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, and HARTZ, Circuit Judges. **



      James Meridyth, a convicted drug trafficker, has twice moved to reduce his

prison sentence based on retroactive amendments to his Sentencing Guideline

range. The district court partially granted both of Meridyth’s motions. The first

time, the district court reduced his sentence by one-sixth. The district court cited

Meridyth’s extensive criminal history and disciplinary infractions in prison as


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         Per the court’s June 13, 2017 Order, The Honorable Bobby R. Baldock,
who attended the April 27, 2017 oral arguments for this case, determined it was
necessary to recuse, and he does not participate in this order and judgment.
reasons for not reducing his sentence further. Meridyth appealed and we affirmed

the sentence-reduction order.

      After a second request for a sentence reduction, the district court again

reduced Meridyth’s sentence by one-sixth, citing the explanation it provided the

first time. Meridyth contests the explanation the district court supplied, arguing

he has avoided prison disciplinary infractions since his first sentence reduction.

In his view, that means he should not have received the same proportional

reduction he did the first time, when that reduction expressly accounted for his

infractions. He thus argues, in effect, that the district court was legally required

to credit his improved conduct in prison by granting him a proportionally more

generous reduction than the first reduction.

      We disagree, and AFFIRM the district court’s sentence-reduction order.

Nothing indicates the district court abused its discretion when it reduced

Meridyth’s sentence by one-sixth. No legal authority requires the district court to

grant a proportionally more generous reduction when a prisoner’s disciplinary

record improves. Moreover, the district court adequately explained the basis for

its sentence.

                                 I. Background

      A jury convicted Meridyth of three counts of violating federal drug

trafficking laws. The district court imposed a 360-month prison sentence, the



                                         -2-
Sentencing Guidelines minimum. We subsequently affirmed his conviction. See

United States v. Meridyth, 364 F.3d 1181 (10th Cir. 2004).

      In 2014, after the Sentencing Commission amended the Guidelines to

reduce the relevant offense levels, Meridyth sought a sentence reduction pursuant

to 18 U.S.C. § 3582(c)(2). Although the amendments lowered Meridyth’s

guidelines range to 235–293 months, the district court ultimately reduced

Meridyth’s sentence from 360 months to 300 months—a one-sixth reduction. The

court explained its decision in a detailed memorandum opinion, citing Meridyth’s

extensive criminal history and disciplinary infractions in prison since

commencing his imprisonment in 2003.

      Meridyth then appealed the sentence-reduction order, arguing the district

court abused its discretion by sentencing him above his amended guidelines

range. We disagreed, finding no abuse of discretion in the court’s reasoning or

the sentence imposed. United States v. Meridyth, 573 F. App’x 791 (10th Cir.

2014) (unpublished).

      After his first appeal, the Sentencing Commission amended the Guidelines

to further reduce the relevant offense levels. The new amendments lowered the

guidelines range to 188–235 months. And Meridyth sought another sentence

reduction. The district court granted his motion, but only reduced Meridyth’s

sentence from 300 months to 250 months—the same one-sixth reduction the court

had previously granted.

                                         -3-
      Once again, the court wrote a memorandum opinion explaining its decision.

The court re-examined the history outlined above, and then concluded:

      While recognizing that the Bureau of Prisoners has not reported any
      further misconduct by Defendant [in the preceding four years], the
      [c]ourt again finds that a full reduction in Defendant’s sentence is not
      appropriate. For the reasons stated fully in its Memorandum Opinion
      of December 10, 2013, the [c]ourt finds that a partial reduction of
      Defendant’s sentence is appropriate and by a contemporaneously
      entered Order, his sentence will be reduced to 250 months
      imprisonment.

R., Vol. 1 at 193. And once again, Meridyth appealed to this court.

                                  II. Analysis

      Meridyth contends a one-sixth sentence reduction cannot be an appropriate

response to both of his sentence-reduction motions, because his circumstances

changed between the two. At the time of his first sentence reduction, argues

Meridyth, he had engaged in recent misconduct in prison, and the government

opposed any reduction at all. But at the time of his second motion, there was no

recent misconduct, and the government did not oppose his motion. Moreover,

Meridyth submitted a letter to the district court accompanying his second motion,

in which he wrote that he had matured in prison, overcome his struggles with

mental-health issues, and was earnestly attempting to rehabilitate himself (for

example, by pursuing his GED).

      A district court may reduce a sentence “based on a sentencing range that

has subsequently been lowered by the Sentencing Commission.” 18 U.S.C.


                                        -4-
§ 3582(c)(2). The statute leaves the decision to reduce a sentence in the

discretion of the district court: “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.” Id. (emphasis added). The relevant

policy statement also provides that “the court may reduce the defendant’s term of

imprisonment as provided by 18 U.S.C. § 3582(c)(2)” if a reduction is consistent

with the policy statement. USSG § 1B1.10(a)(1) (emphasis added). The

accompanying application notes provide that the court “shall consider” the factors

in § 3553 as well as the nature and seriousness of any threat to public safety. Id.

§ 1B1.10, cmt. n. 1(B). In addition, the court “may consider” the defendant’s

post-sentencing conduct. Id. (emphasis added).

      We review a district court’s decision to grant or deny a § 3582(c)(2) motion

for an abuse of discretion. United States v. Chavez-Meza, 854 F.3d 655, 657

(10th Cir. 2017). “We ‘do not disturb decisions entrusted by statute or other rule

of law to the discretion of a district court unless we have a definite and firm

conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.’” Chavez-Meza, 854 F.3d at

659 (quoting United States v. Ruiz–Terrazas, 477 F.3d 1196, 1201 (10th Cir.

2007)).




                                          -5-
      The sole issue before us is whether the district court abused its discretion

by granting a one-sixth reduction in response to Meridyth’s second § 3582(c)(2)

motion, even though Meridyth had improved his prison conduct and purportedly

taken steps toward rehabilitation. 1 [Aplt. Br. at 2.]

      We see nothing in the district court’s approach that amounts to a “clear

error of judgment” or that “exceeded the bounds of permissible choice.” No legal

authority requires the court to assign a certain weight to a defendant’s conduct in

prison. Indeed, the Sentencing Guidelines expressly do not require district courts

to consider post-sentencing conduct. See USSG § 1B1.10, cmt. n. 1(B)(iii) (“The

court may consider post-sentencing conduct of the defendant . . . .” (emphasis

added)); but cf., e.g., id. cmt. n. 1(B)(i) (“[T]he court shall consider the factors

set forth in 18 U.S.C. 3553(a) . . . .” (emphasis added)).

      Apart from cases discussing this court’s jurisdiction and the appropriate

standard of review, Meridyth’s briefs only cite two cases.




      1
          We grant Meridyth’s April 21, 2017 sealed motion to supplement the
record on appeal only to the extent it involves materials that were presented to the
district court. “Federal Rule of Appellate Procedure 10(e) authorizes the
modification of the record only to the extent it is necessary to ‘truly disclose[ ]
what occurred in the district court.’ This court will not consider material outside
the record before the district court.” United States v. Kennedy, 225 F.3d 1187,
1191 (10th Cir. 2000) (citation omitted) (quoting Fed. R. App. P. 10(e)).
Although in rare circumstances “we have an inherent equitable power to
supplement the record on appeal,” id. at 1192, we decline to exercise that power
here.

                                          -6-
      First, Meridyth cites Pepper v. United States, 562 U.S. 476, 481 (2011).

But Pepper is not on point. Pepper held that “when a defendant’s sentence has

been set aside on appeal, a district court at resentencing may consider evidence of

the defendant’s postsentencing rehabilitation and that such evidence

may . . . support a downward variance” from the guidelines range. Id. at 481. As

a threshold matter, as a case about resentencing, Pepper has no bearing on §

3582(c)(2) sentence-reduction motions. 2 But even if it were on point, it would

not get Meridyth very far: no one debates the proposition that a district court may

consider the defendant’s post-sentencing conduct in sentence-reduction

proceedings. See USSG § 1B1.10, cmt. n. 1(B)(iii) (“The court may consider

post-sentencing conduct of the defendant . . . .”). And that is the proposition for

which Pepper stands.

      2
         As the Supreme Court explains in Dillon v. United States, 560 U.S. 817,
825 (2010), § 3582(c)(2) proceedings are different from the “resentencing”
proceedings discussed in Pepper. See id. at 825 (“The language of § 3582(c)(2)
belies Dillon’s characterization of proceedings under that section. By its terms,
§ 3582(c)(2) does not authorize a sentencing or resentencing proceeding.”), 826
(“Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress
intended to authorize only a limited adjustment to an otherwise final sentence and
not a plenary resentencing proceeding.”); 827 (“Because reference to § 3553(a) is
appropriate only at the second step of this circumscribed inquiry, it cannot serve
to transform the proceedings under § 3582(c)(2) into plenary resentencing
proceedings.”); 831 (“As noted, § 3582(c)(2) does not authorize a resentencing.
Instead, it permits a sentence reduction within the narrow bounds established by
the Commission.”); see also Pepper, 562 U.S. at 490 (directing readers to the
portion of Dillon that distinguishes § 3582(c)(2) proceedings from plenary
resentencing proceedings). Compare Aplt. Br. at 14 (citing Pepper as if it were a
case about sentence reduction); Aple. Br. at 12 (referring to sentence-reduction
proceedings as “resentencing[s]”); Reply Br. at 3 (same).

                                        -7-
      Second, Meridyth cites a Seventh Circuit case, United States v. Miller, 832

F.3d 703 (7th Cir. 2016). Although Miller is a sentence-reduction case, it is no

more helpful here, because the facts are easily distinguishable. Miller involved

an attorney who completely failed to submit evidence of the defendant’s positive

achievements in prison to the district court. Id. at 704. The Seventh Circuit

objected to the district court’s characterization of three-year-old disciplinary

infractions as ones that had “occurred relatively recently” and were “serious.” Id.

And the Seventh Circuit noted that the district court had failed to discuss whether

the defendant would be “likely to remain a significant danger to the community

when he is released.” Id. In light of these three shortcomings, the Seventh

Circuit remanded. Id. at 805.

      Here, by contrast, Meridyth does not allege that the district court did not

have all the relevant evidence in front of him. Nor did the district court

mischaracterize the chronology of the disciplinary infractions; as we explain

below, the district court was aware of Meridyth’s improved behavior. See R.,

Vol. 1 at 193 (“[R]ecognzing that the Bureau of Prisons has not reported any

further misconduct by Defendant since March 2012 . . .”); see also R., Vol. 1 at

137 (noting the dates of each disciplinary infraction and noting that Meridyth

“has been discipline free since March 1, 2012”). And the district court

extensively considered whether Meridyth would be a significant danger to the

community when he is released. See R., Vol. 1 at 135–36 (explaining that

                                         -8-
Meridyth “basically engaged in a pattern of criminal conduct for his entire adult

life” and rejecting Meridyth’s assertion that “this past conduct is less relevant

because of its age”).

      In any event, the record makes clear that the district court was aware that

Meridyth had stayed out of trouble in prison since his first sentence reduction.

Far from failing to consider Meridyth’s recent prison record, the district court

expressly acknowledged it. See R., Vol. 1 at 193 (“[R]ecognizing that the Bureau

of Prisons has not reported any further misconduct by Defendant [in the preceding

four years] . . . .”). And although Meridyth contends that the district court “did

not know of [Meridyth’s improvement in his mental health issues and his

educational efforts] when it last acted,” the record reveals Meridyth presented

similar arguments in his first sentence-reduction proceedings. See R., Vol. 1, at

10–12 (arguing that “Meridyth has made concerted efforts to better himself during

his period of incarceration,” including earning several certificates, and

emphasizing his “recent and on-going self-improvement efforts”). Meridyth

moreover concedes that only three of the fifteen programs and classes in which he

participated occurred after the first sentence reduction. See Aplt. Br. at 10.

      The district court’s first sentence reduction opinion goes into considerable

detail regarding its decision. It discusses the underlying offense. R., Vol. 1 at

130–31. It lists the factors a court may consider—including post-sentencing

conduct—as well as the § 3553(a) factors the court is required to consider. R.,

                                         -9-
Vol. 1 at 132–36. Recounting Meridyth’s extensive criminal history, the court

describes him as a danger to the community. R., Vol. 1 at 135–36; see USSG

§ 1B1.10, cmt. n. 1(B) (providing that the court “shall consider” the nature and

seriousness of any threat to public safety.). After listing Meridyth’s prison

disciplinary infractions, the court notes that “Meridyth’s pre- and post-sentencing

behavior . . . is of major concern to the [c]ourt and heavily influences its

determination of any reduction in his sentence.” R., Vol. 1 at 137.

      In context, it is evident that the post-sentencing infractions were not the

most important factor in the court’s first sentence-reduction decision. The court

noted that the Bureau of Prisons described Meridyth’s behavior as “relatively

decent,” that he had been incident-free for a year and a half, and that he had

“good rapport with staff and inmates.” Id. The court also noted that Meridyth

was “working closely with psychology services regarding his medication and self-

improvement programming,” and that he had gained more than five years of work

experience. Id.

      The one-sixth reduction, explained the court, reflected several

considerations: (1) the defendant’s “criminal history and characteristics,” (2) “his

behavior in prison,” (3) “the need . . . to promote respect for the law,” (4) the

need to “provide adequate deterrence,” and (5) the need to “protect the public

from further crimes of the [d]efendant.” R., Vol. 1 at 139.




                                         -10-
      In sum, the district court did not abuse its discretion by referring back to its

original explanation. The defendant’s criminal history and characteristics

remained unchanged. The need to promote respect for the law, provide adequate

deterrence, and to protect the public remained unchanged. Meridyth’s record of

prison infractions remained basically unchanged, except that some additional time

had passed since his last infraction. But the same incidents were on his record as

before; and just as before, his recent record reflected an effort at rehabilitation.

Given that the circumstances were largely the same as before, we cannot say the

district court should have had to discard its thorough explanation from just a

couple years prior only to recapitulate it.

      And it is worth emphasizing in closing that Meridyth benefited

considerably from the district court’s decision. Sentence reduction is an “act of

lenity.” Dillon, 560 U.S. at 828. More than four years were taken off his

sentence. The district court has not penalized Meridyth—Meridyth simply wishes

the act of lenity had gone further.

                                 III. Conclusion

      The decision of the district court is therefore AFFIRMED.

                                                 ENTERED FOR THE COURT

                                                 Timothy M. Tymkovich
                                                 Chief Judge




                                          -11-
