Professional Documents
Culture Documents
No. 15-6966
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:07-cr-00010-MR-1)
Argued:
October 7, 2015
Before TRAXLER,
Judges.
Chief
Decided:
Judge,
and
KING
and
February 8, 2016
THACKER,
Circuit
Chief
PER CURIAM:
Albert Eugene Hardy, Jr., appeals from the June 2015 order
entered in the Western District of North Carolina, granting him
a sentence reduction from 168 to 140 months under 18 U.S.C.
3582(c)(2).
As explained
below, the record does not reveal that the court appreciated the
scope
of
its
authority,
and
it
also
shows
that
the
court
I.
On
May
3,
2007,
Hardy
pleaded
guilty
to
conspiracy
to
criminal
history
of
V,
the
Sentencing
The
statutorily
maximum
of
required
the
minimum
applicable
sentence
guideline
is
greater
range,
the
than
the
statutorily
to
the
January
30,
2008
sentencing
hearing,
the
granted
the
governments
substantial-assistance
motion
and
months,
and
it
equaled
70%
of
the
240-month
mandatory
minimum.
Seven
motion
in
seeking
years
the
later,
district
sentence
Guidelines.
on
In
April
court
under
reduction
response,
23,
2015,
18
under
the
Hardy
U.S.C.
Amendment
probation
filed
his
3582(c)(2),
750
officer
to
the
filed
memorandum with the court on April 27, 2015, advising that Hardy
was ineligible for relief under Amendment 750. 3
officer
further
advised
the
court,
however,
The probation
that
Hardy
was
More
of
168
months
minimum.
The
was
equal
probation
to
70%
officer
of
the
then
240-month
calculated
Finally,
pursuant
to
probation
months.
the
applicable
officer
Guidelines
recommended
policy
comparable
statement,
reduction
to
the
98
was 70% of 140 months, or 70% of the low end of Hardys revised
Guidelines range.
On
June
1,
the
government
agreed
that
Hardy
was
Moreover,
Hardy
responded the very next day, requesting that the court award him
the unopposed sentence reduction to 98 months.
By its one-page order (AO Form 247) of June 17, 2015, the
district
court
granted
Hardys
3582(c)(2)
motion
in
part,
See United
Hardys Original Guideline Range was 240 months, and that his
Amended Guideline Range was also 240 months.
specifying
Amendment 782.
that
the
reduced
sentence
was
based
on
It
also did not mark another option that reads, The previous term
6
of
imprisonment
imposed
was
less
than
the
guideline
range
and explained:
Defendants [original] sentence was enhanced pursuant
to a 851 notice.
His cooperation was recognized
b[y] allowing him a reduction to a sentence at the low
end of the Guideline Range without consideration of
the 851 notice. Defendants reduced sentence herein
is likewise at the low end of the revised Guideline
Range after Amendment 782, without consideration of
the 851 notice.
Hardy has filed a timely notice of appeal of the district
courts sentence reduction decision.
We possess jurisdiction
II.
Absent
district
an
abuse
courts
of
discretion,
sentence
reduction
we
will
decision
not
under
disturb
18
U.S.C.
3582(c)(2).
Cir. 2013).
757
district
(4th
Cir.
courts
1996).
An
misapprehension
error
of
of
the
law
may
scope
of
include
its
legal
III.
Hardy contends that the district court erred in failing to
recognize its authority under the Sentencing Commissions policy
statement and in calculating the extent of a comparably less
reduction
below
Appellant 8.
failed
to
sentence
his
amended
range.
See
Br.
of
appreciate
to
Guidelines
98
that
months
Guidelines range).
it
(70%
was
of
authorized
the
low
end
to
of
reduce
his
his
amended
government,
was
neither
erroneous
nor
an
abuse
of
discretion.
The Supreme Courts decision in Dillon v. United States
explained the two-step approach that a district court must
undertake when resolving a 3582(c)(2) motion.
817,
827
(2010).
First,
the
court
[must]
follow
the
out
prisoners
extent
of
in
Guidelines
eligibility
the
for
reduction
section
a
1B1.10
sentence
authorized.
8
to
determine
modification
Id.
(emphasis
and
the
the
added).
Second,
the
court
must
consider
any
applicable
[18
U.S.C.]
with
that
extent
of
the
Commissions
Dillon,
Hardy
Id.
was
district
eligible
for
court
initially
sentence
reduction
permissible
policy
1B1.10(b)(2)(B).
the
reduction
statement
authorized
in
by
Guidelines
the
section
See id.
Guidelines
(providing
for
Guidelines
range).
Dillons
first
range.
percentage
Put
step.
See
id.
reduction
simply,
The
1B1.10(c)
from
the
courts
low
end
court
did
failure
to
cmt.
n.4(B)
of
amended
not
complete
identify
the
720
F.3d
193,
196
(4th
9
Cir.
2013)
(observing
that
pressing
fully
the
contrary
understood
the
assertion
scope
of
its
that
the
district
authority
the
First, it
contends
that
the
court
must
have
Second, the
recognized
its
box
indicating
that
it
was
granting
comparably
less
reduction.
There are other aspects of the Order, however, that serve
to undermine the governments contention.
Order
states
contains
Original
both
an
error
Guideline
240
months
of
Range
(the
law:
and
it
Amended
mandatory
that
Guideline
statutory
Hardys
Range
minimum).
are
That
to
the
240-month
mandatory
minimum.
See
USSG
was not 240 months, as the district court stated in the Order,
but
was
140
to
175
months,
as
determined
circumstances,
we
are
not
scope
of
by
the
probation
officer. 5
In
district
these
court
3582(c)(2).
appreciated
the
persuaded
its
that
authority
the
under
We are therefore
IV.
Pursuant
remand
for
to
such
the
foregoing,
other
and
we
further
vacate
the
proceedings
judgment
as
may
and
be
appropriate.
VACATED AND REMANDED
11
judge
and
when
the
judge
chooses
sentence
that
is
the
district
court
fully
understood
the
scope
of
its
the
maximum
reduction.
The
district
court
acted
well
defendant
has
been
sentenced
to
term
of
reduce
the
term
of
imprisonment
12
after
considering
the
The court is
United
This
sentence
reduction
under
3582(c)(2)
for
abuse
of
discretion.
Cir. 2013).
the
district
court
granted
Hardys
motion
and
reduced his sentence from 168 months to 140 months, Hardy argues
that
the
district
court
failed
to
understand
that
it
could
To properly
authority
and
3582(c)(2).
contrary
and
applicable
properly
policy
considered
statements
the
as
indication,
we
presume
13
district
court
3553(c)
required
by
[A]bsent a
deciding
3582(c)(2)
motion
has
considered
the
18
U.S.C.
3553(a)
Id. (internal
district
determine
court
the
when
amended
considering
guideline
range
sentence
that
reduction
would
have
to
been
effect
at
the
time
the
defendant
was
sentenced.
The
U.S.S.G. 1B1.10(b)(2)(A).
sentence
substantial
was
assistance
below
the
departure
guideline
under
range
based
3553(e),
on
then
a
a
mandatory
months.
minimum,
Hardys
Nevertheless, in light of
guideline
sentence
was
240
range
pursuant
to
government
motion
to
reflect
reduction
comparably
less
than
the
amended
U.S.S.G. 1B1.10(c).
the
district
court
reduction to be appropriate.
in
its
discretion
found
however,
granted
such
Hardy
downward
The district
departure
under
Defendants
J.A. 89.
The fact that the one-page form order does not explicitly
state
that
the
court
is
aware
that
98-month
sentence
is
[I]n
196.
the
The
district
court
chose
to
go
to
bottom
of
the
17