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United States v. Green

United States Court of Appeals, Tenth Circuit

April 6, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARCONIA LYNN GREEN, Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:10-CR-00079-F-1)

          Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender and Dean Sanderford, Assistant Federal Public Defender, on the briefs), Denver, Colorado, for Defendant-Appellant.

          Steven W. Creager, Assistant United States Attorney (Mark A. Yancey, United States Attorney, with him on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

          Before TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.

          BALDOCK, CIRCUIT JUDGE.

         In 2011, Defendant Marconia Green pleaded guilty to three counts of using a communication facility to facilitate the acquisition of cocaine powder in violation of 21 U.S.C. § 843(b). The district court sentenced him to 130 months' imprisonment. Three years after Defendant's sentencing, the U.S. Sentencing Commission promulgated Amendment 782, which reduced the base offense levels assigned to certain drug offenses by two levels. Invoking this amendment, Defendant filed a motion to reduce his sentence under 18 U.S.C § 3582(c)(2). The district court denied the motion, and this Court affirmed. Over a year later, Defendant filed another motion to reduce his sentence, again citing Amendment 782. The district court also denied this second motion. Defendant now appeals the denial, arguing the district court abused its discretion in not considering all the facts and circumstances of his case. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I.

         A grand jury initially indicted Defendant on seven counts of possessing cocaine powder and cocaine base with intent to distribute and three counts of using a communication facility to facilitate the acquisition of cocaine powder. Pursuant to a plea agreement, the Government dismissed the possession charges, and Defendant pleaded guilty to the three communication-facility counts. At Defendant's sentencing hearing, the district court held Defendant's guideline range was 92 to 115 months' imprisonment. Notably, this guideline range is less than what the presentence investigation report recommended (110 to 137 months' imprisonment) and also less than what the guideline range would have been absent the plea agreement (188 to 235 months' imprisonment).

         The district court, however, imposed an upward-variant sentence of 130 months' imprisonment. Before imposing this sentence, the court surveyed Defendant's extensive criminal history:

[D]efendant . . . has a criminal career going back about 30 years that starts with a manslaughter conviction, proceeds to convictions for distribution of cocaine base-and here I'm ignoring ones that are less serious than that-distribution of cocaine base, violation of a protective order, another distribution of cocaine base, and then a third distribution of crack cocaine in 2004 . . . . By my conservative count, I'm the 18th judge this defendant has been in front of presumably to say that he will change his ways.

Supp. ROA Vol. I at 25. Defendant then "ask[ed] the Court to be lenient . . . with [his] sentence, " explaining that he had been in drug rehabilitation for twenty-two months and realized he needed to change. Id. at 32-34. He also stated, "I mean, come on, I don't think what I done [sic] was really all that bad for me to have to go spend another 15 years in prison." Id. at 34. The court responded, "[T]hat request [for lenience] rings hollow with the Court." Id. at 36. After noting Defendant's lack of remorse for "the victims whose lives [he had] ruined by dispensing this horrible substance" and explaining "the need to impose a just punishment, the need for . . . deterrence, and the need for incapacitation, " the court imposed the upward-variant sentence. Id. at 36-38. Both Defendant's direct appeal and collateral attack on his sentence failed. United States v. Green, 504 Fed.Appx. 771 (10th Cir. 2012) (unpublished); United States v. Green, 548 Fed.Appx. 557 (10th Cir. 2013) (unpublished).

         Three years after Defendant's sentencing, the U.S. Sentencing Commission amended the sentencing guidelines by reducing the offense level of many drug offenses by two levels. U.S. Sentencing Guidelines Manual app. C supp., amend. 782 (U.S. Sentencing Comm'n 2016). The Commission made this amendment, Amendment 782, retroactive. Id., amend. 788. Citing Amendment 782, Defendant filed a pro se motion for a reduced sentence under 18 U.S.C. § 3582(c)(2). He argued he was eligible for a sentence reduction and that the court should grant such reduction because of the progress he had made while in prison, as evidenced by a transcript listing courses he had completed. The district court denied the motion, and this Court affirmed. United States v. Green, 625 Fed.Appx. 901 (10th Cir. 2015) (unpublished).

         Fifteen months later, Defendant filed another pro se motion for a reduced sentence under § 3582(c)(2). He again argued Amendment 782 rendered him eligible for such a reduction and that the court should grant a reduction because of the courses he had completed in prison. The only difference between his first and second motions was that, in his second motion, Defendant included more courses on his transcript and attached two new certificates acknowledging he had taken certain courses. The district court held that while Defendant was eligible for a reduced sentence under Amendment 782, this amendment did not mandate relief. The court then explained that his transcript of courses taken and certificates did not make a reduction appropriate. Thus, the district court denied the motion.

         Still proceeding pro se, Defendant filed a notice of appeal to this Court, the subject of which is before us now. In his opening brief, Defendant argued the district court abused its discretion by not considering all the facts and circumstances of his case, including Defendant's clean disciplinary record while incarcerated. The Government responded that the district court lacked jurisdiction to consider Defendant's second motion for a reduced sentence under Amendment 782 or, in the alternative, the court properly denied the motion on the merits. This Court appointed counsel to represent Defendant in responding to the Government's arguments. In his supplemental briefing, Defendant argues the district court did indeed have jurisdiction. He also argues this Court should ...


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