United States of America v. VINCE EDWARD WILSON

St. Louis, MO - Criminal defense lawyer represented defendant with eleven counts related to the importation and sale of a controlled substance (Counts 1–11); one count of possession of a firearm in furtherance of a drug trafficking crime charge.

In December 2005, Wilson was convicted of eleven

counts related to the importation and sale of a controlled

substance (Counts 1–11); one count of possession of a

firearm in furtherance of a drug trafficking crime in violation

of 18 U.S.C. § 924(c) (Count 12), and one count of being a

felon in possession of a firearm, 18 U.S.C. § 922(g)(1) (Count

13).

The Presentence Report (PSR) prepared for the district

court grouped Counts 1–11 with Count 13.1 Under the

Sentencing Guidelines, when counts are grouped together,the

offense level applicable to the group is "the highest offense

level of the counts in the Group.” U.S.S.G. § 3D1.3(a).

Following this rule, the PSR used the applicable offense level

1 Counts are grouped "[w]hen one of the counts embodies conduct

that is treated as a specific offense characteristic in . . . the guideline

applicable to another of the counts.” U.S. Sent'g Guidelines Manual

§ 3D1.2(c) (Nov. 2005). Possessing "a dangerous weapon (including a

firearm)” is one such "specific offense characteristic[]” for a drug

importation offense. U.S.S.G. § 2D1.1(b)(1).

UNITED STATES V. WILSON 7

for Counts 1–11, see id. § 2D1.1, because it is higher than

that for Count 13, see id. § 2K.2.1. Applying the Drug

Quantity Table in § 2D1.1(c)(2), the PSR calculated an

offense level of 36 for the quantity of drugs involved in

Counts 1–11. § 2D1.1(c)(2). The PSR also applied a 2-level

increase to the offense level because Wilson "was an

organizer, leader, manager, or supervisor in [the] criminal

activity.” § 3B1.1(c). The total offense level was thus 38.

The PSR determined that Wilson was in Criminal History

Category III. Therefore, the Guidelines sentencing range for

Counts 1–11 and 13 was 292–365 months imprisonment. For

Count 12, the statutory mandatory minimum sentence was

60 months, applied consecutively. 18 U.S.C.

§ 924(c)(1)(A)(i); U.S.S.G. § 5G1.2(e). Therefore, the PSR

calculated the Guidelines sentencing range for all counts as

352–425 months.

At Wilson's sentencing in 2006, the district court (then

Judge Takasugi) relied on the calculations set out in the PSR.

For the grouped Counts 1–11 and 13, Judge Takasugi chose

to sentence Wilson to 292 months, the low end of the range.

But this low-end number exceeded the statutory maximum

sentence of 240 months for each of Counts 1–11. Under the

Guidelines, "[i]f the sentence imposed on the count carrying

the highest statutory maximum is less than the total

punishment, then the sentence imposed on one or more of the

other counts shall run consecutively, but only to the extent

necessary to produce a combined sentence equal to the total

punishment.” U.S.S.G. § 5G1.2(d). Following this direction,

the court sentenced Wilson to 240 months on each of Counts

1–11, to be served concurrently, and 52 months on Count 13,

to be served consecutively, for a total of 292 months (the lowend of the Guidelines range). Finally, for Count 12, the court

sentenced Wilson to the statutory minimum of 60 months, to

8 UNITED STATES V. WILSON

be served consecutively. 18 U.S.C. §924(c)(1)(A)(i);

U.S.S.G. § 5G1.2(e) ("[T]he sentence to be imposed on the

18 U.S.C. § 924(c) . . . count shall be imposed to run

consecutively to any other count.”). Wilson's total sentence

was therefore 352 months.

In 2014, Congress approved Amendment 782 to the

Sentencing Guidelines, which retroactively amended the

Drug Quantity Table, U.S.S.G. § 2D1.1(c), thereby reducing

by two levels the offense levels assigned to specified

quantities of drugs. In Wilson's case, this meant that the

Drug Quantity Table now showed an offense level of 34,

instead of 36, for the quantity of drugs involved in Counts

1–11, making him eligible for a sentence modification under

18 U.S.C. § 3582(c)(2).2

The following year, the government and the Office of the

Federal Public Defenders (FPD) entered into a joint

stipulation asking the district court (now Judge Hatter) to

appoint the FPD to represent a specified list of defendants,

including Wilson, and to reduce their sentences under

2

18 U.S.C. § 3582(c)(2) provides:

The court may not modify a term of imprisonment once

it has been imposed except that— . . . (2) in 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 . . . , upon motion of the defendant or the

Director of the Bureau of Prisons, or on its own motion,

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.

UNITED STATES V. WILSON 9

§ 3582(c)(2) as a result of Amendment 782.3 As for Wilson's

sentence, the parties stipulated that the base offense level

should be reduced from 36 to 34. Adding the two-level

increase under § 3B1.1(c) (for being an organizer, leader,

manager or supervisor), the reduced total offense level was 36

(rather than 38) and the reduced Guidelines range was

235–293 months. Based on this reduction, the parties asked

for Wilson's sentence to be modified to 235 months on each

of Counts 1–11, to be served concurrently, 52 months on

Count 13, to be served consecutively (adding up to

287 months on the grouped Counts 1–11 and 13), and

60 months on Count 12 to be served consecutively, for a total

of 347 months. Judge Hatter reduced Wilson's sentence

exactly as requested in the stipulation.

3 Wilson does not claim that the FPD failed to discharge its ethical

obligation to consult with him regarding his first § 3582(c)(2) motion, and

there is no evidence in the record that the FPD violated this duty. In the

absence of evidence in the record, we assume that the FPD conducted

itself ethically. See Cal. Rules of Professional Conduct, rule 1.2(a) ("[A]

lawyer shall abide by a client's decisions concerning the objectives of

representation and . . . shall reasonably consult with the client as to the

means by which they are to be pursued.”). In arguing that the FPD did not

communicate with Wilson about the stipulation, and that Wilson did not

learn of the stipulation until after the district court entered its order, the

dissent relies on a factual allegation made by Wilson's attorney in oral

argument, unsupported by evidence in the record. Dissent at 29 & n.4.

Such attorney argument does not constitute evidence. See CarrilloGonzalez v. I.N.S., 353 F.3d 1077, 1079 (9th Cir. 2003). Finally, the

dissent's argument that the district court did not appoint the FPD to seek

a plenary resentencing for Wilson, Dissent at 29 n.4, is irrelevant. The

Supreme Court has made clear that Congress intended § 3582(c)(2) "to

authorize only a limited adjustment to an otherwise final sentence and not

a plenary resentencing proceeding.” Dillon v. United States, 560 U.S.

817, 826 (2010). What is significant, however, is that the "limited

adjustment” in this case affected all of the grouped counts.

10 UNITED STATES V. WILSON

Three years later, in 2018, Wilson filed a motion for

reconsideration of the court's sentence modification order.

According to Wilson, to accomplish Amendment 782's "full

2-point deduction,” Judge Hatter should have given him the

low end of the new Guidelines range (235 months) for Counts

1–11 and 13, plus 60 months mandated for Count 12, for a

total of 295 months instead of 347 months. Judge Hatter

denied the motion. He reasoned that "[b]ecause Amendment

782 served only to reduce the total base offense level of the

drug convictions, Amendment 782 had no effect on the

sentence[] based on [Count 13].” Although Wilson appealed

this denial of his motion for reconsideration, his appeal was

subsequently dismissed for failure to prosecute.4

In October 2019, Wilson filed a second motion for

sentence modification under § 3582(c). Wilson argued that

Judge Hatter had erred in modifying his sentence in 2015

because Judge Hatter reduced his sentence only on Counts

1–11, and failed to reduce the sentence on Count 13, even

though Wilson was eligible for a reduction on that count as

well. According to Wilson, Judge Hatter failed to realize that

Judge Takasugi had allocated 52 months to Count 13 only

because the low end of the Guidelines range for the grouped

Counts 1–11 and 13 exceeded the statutory maximum

sentence of 240 months for Counts 1–11. After Amendment

782, the low end of the Guidelines range was less than the

statutory maximum for Counts 1–11, and so there was no

need to allocate 52 months to Count 13 to run consecutively.

4

In 2018, Wilson also filed a Motion to Vacate, Set Aside, or Correct

Sentence under 28 U.S.C § 2255, claiming, among other things, that the

PSR miscalculated his recommended Guidelines range and that the

consecutive sentences for Counts 12 and 13 violated double jeopardy.

Judge Hatter denied the motion on timeliness grounds.

UNITED STATES V. WILSON 11

In order to effectuate Judge Takasugi's intent to sentence

Wilson to a low-end guideline sentence, Wilson argued,

Judge Hatter should modify his current term of imprisonment

so that the 52-month sentence for Count 13 ran concurrently

with his sentence on Counts 1–11. In effect, Wilson argued

that Judge Hatter erred by failing to give him the low-end of

the amended Guidelines range in 2015 as Judge Takasugi

originally did in 2006, and should correct that error in a

second sentence modification in 2019. The government

opposed the motion.

Judge Hatter denied Wilson's motion for a sentence

modification. The court reviewed Wilson's conviction, his

original sentence imposed in 2006, his resentencing in 2015,

and his 2018 motion for reconsideration. The court

acknowledged that "Amendment 782 increased the drug

quantity thresholds for most of the base offense levels of

§ 2D1.1's Drug Quantity Table, which, consequently,

lowered the sentencing ranges for some individuals' drug

convictions.” However, the court held that "Wilson points to

no authority . . . that supports the proposition that

Amendment 782's changes to the drug quantity thresholds of

§ 2D1.1 had any effect on his firearm conviction,” and

therefore rejected Wilson's argument that he was entitled to

a reduction of his firearm-related sentence (Count 13)

because it was grouped with his drug convictions and

therefore was based on the Drug Quantity Table. Further,

citing United States v. Dunn, 728 F.3d 1151, 1158–1160 (9th

Cir. 2013), Judge Hatter stated that "even assuming,

arguendo, that Wilson is eligible for a sentence reduction on

his [firearm] conviction under Amendment 782, the Court,

having considered the factors set forth in 18 U.S.C. § 3553

and, inter alia, the nature of Wilson's crimes, declines to

exercise its discretion to resentence him.”

12 UNITED STATES V. WILSON

Wilson now appeals the district court's denial of his

motion for a second sentence modification under § 3582(c).

He argues that Judge Hatter erred in concluding he lacked

authority to reduce the sentence for Count 13, and, according

to Wilson, this error tainted his discretionary denial of

Wilson's motion. Wilson also contends that Judge Hatter

procedurally erred by failing to provide a sufficient

explanation for denying Wilson's motion, see 18 U.S.C.

§ 3553(a). Finally, Wilson argues that the denial of his

motion rendered his sentence substantively unreasonable.

II

We have jurisdiction over this appeal pursuant to

28 U.S.C. § 1291. We review a district court's discretionary

denial of a motion for sentence modification under

§ 3582(c)(2) for abuse of discretion. United States v. Colson,

573 F.3d 915, 916 (9th Cir. 2009). "A district court may

abuse its discretion if it does not apply the correct law or if it

rests its decision on a clearly erroneous finding of material

fact.” United States v. Lightfoot, 626 F.3d 1092, 1094 (9th

Cir. 2010) (citation omitted). Although it is an open question

whether Wilson is currently serving a term of imprisonment

that is based, even in part, on a sentencing range that has

subsequently been lowered by Amendment 782, cf.

Concurrence at 20–22; Dissent at 38–42, for purposes of this

appeal we assume without deciding that Wilson is eligible to

seek relief under § 3582(c)(2).

A

We begin with Wilson's argument that Judge Hatter erred

in stating that there is no authority "that supports the

proposition that Amendment 782's changes to the drug

UNITED STATES V. WILSON 13

quantity thresholds of § 2D1.1 had any effect on his firearm

conviction,” and that this error tainted his exercise of

discretion in denying the motion for a sentence modification.

To determine whether an amendment that affects the count

with the highest offense level (Counts 1–11 here) is also

deemed to affect other grouped counts (Count 13 here), such

that the sentence for all the counts are deemed to be "based

on a sentencing range that has subsequently been lowered by

the Sentencing Commission” for purposes of § 3582(c)(2),

we look to whether "the sentencing range in question was a

relevant part of the analytic framework the judge used to

determine the sentence.” See United States v.

Aguilar-Canche, 835 F.3d 1012, 1017 (9th Cir. 2016)

(cleaned up) (holding that the Guidelines range for the

combined offenses was not a relevant part of the analytic

framework for the sentence because the district court applied

the statutory minimum sentence to each charge). We have

not previously addressed this precise issue. And we need not

address it here, because in exercising his discretion to deny

Wilson's second § 3582(c) motion, Judge Hatter assumed for

the sake of argument that Wilson was eligible for a sentence

reduction on Count 13 under Amendment 782. Given Judge

Hatter's consideration of the applicable factors under

§ 3553(a), as explained below, even if Judge Hatter had erred

in his view regarding the effect of Amendment 782 on the

firearm offense, any such error was harmless. See United

States v. Munoz-Camarena, 631 F.3d 1028, 1030 & n.5 (9th

Cir. 2011) (per curiam) (noting that a district court's

sentencing error is harmless if it performs the sentencing

analysis under the correct, as well as incorrect Guidelines

range).

14 UNITED STATES V. WILSON

B

We therefore turn to Wilson's second argument that Judge

Hatter failed to provide a sufficient explanation of his reasons

for denying Wilson's motion to modify his sentence. The

Supreme Court has recently provided some guidance on how

we should evaluate the adequacy of a court's reasons for

modifying a sentence. See Chavez-Meza v. United States,

138 S. Ct. 1959, 1965 (2018).

In Chavez-Meza, the district court initially sentenced a

defendant to a sentence at the bottom of the Guidelines range.

Id. at 1966. After Amendment 782 to the Guidelines lowered

the relevant range, the defendant "asked the judge to reduce

his sentence to . . . the bottom of the new range,” but the

judge reduced the defendant's sentence to a midway point

instead. Id. at 1967. The judge entered his order on a

"barebones form” that certified that the judge had considered

the defendant's motion and taken into account the § 3553(a)

factors and relevant Guidelines policy statement, but

otherwise provided no explanation. Id. at 1965, 1967.

Chavez-Meza first acknowledged the government's

argument that while a court has a statutory requirement to

"state in open court the reasons for its imposition of the

particular sentence” at the initial sentencing, 18 U.S.C.

§ 3553(c), no similar requirement is imposed at a

resentencing under § 3582(c)(2). Chavez-Meza, 138 S. Ct.

at 1965, 1967. But instead of addressing this argument,

Chavez-Meza "assum[ed] (purely for argument's sake) [that]

district courts have equivalent duties when initially

sentencing a defendant and when later modifying the

sentence.” Id.

UNITED STATES V. WILSON 15

Making this assumption arguendo,Chavez-Meza held that

the court's brief explanation was adequate. In reaching this

conclusion, the Court held there was no presumption that a

judge who picked the low range of a Guidelines sentence at

the initial sentencing would also pick the low range at the

resentencing. Id. at 1966. The Court next held that the length

or brevity of the explanation provided by a judge at

resentencing is mostly left to "the judge's own professional

judgment.” Id. (cleaned up). Finally, the Court ruled that a

judge's explanation provided at resentencing must be

considered in light of the initial sentencing, including the

court's awareness of the defendant's arguments, its

consideration of the relevant sentencing factors, and the

intuitive reason for picking a particular sentence. Id.

at 1966–68. The Court concluded that the judge's

explanation in that case, which consisted solely of conclusory

statements on a pre-printed form, "fell within the scope of the

lawful professional judgment that the law confers upon the

sentencing judge.” Id. at 1968.

In short, under Chavez-Meza, even assuming that a

district court needs to provide an on-the-record explanation

of its reasons for imposing a particular sentence in a

resentencing proceeding under § 3582(c)(2), a minimal

explanation is adequate in light of the deference due to the

judge's professional judgment and the context of a particular

case.

Applying this standard, we conclude that Judge Hatter

provided an adequate explanation for denying Wilson's

motion to modify his term of imprisonment so that the

52-month sentence for Count 13 ran concurrently with his

sentence for Counts 1–11. Chavez-Meza, 138 S. Ct. at 1966.

Assuming arguendo that Wilson was eligible for a further

16 UNITED STATES V. WILSON

sentence modification in 2019, Judge Hatter stated that he

would decline to exercise his discretion to modify Wilson's

sentence in light of "the factors set forth in 18 U.S.C. § 3553

and, inter alia, the nature of Wilson's crimes.” We consider

this explanation in light of the initial sentencing and "the

intuitive reason[s]” why the district court may have made its

sentencing determination. Id. at 1967. Because Judge Hatter

had presided over Wilson's first motion for sentence

modification, his motion for reconsideration, and his § 2255

motion challenging his sentence, Judge Hatter was well

familiar with Wilson's crimes and arguments. Wilson's

crimes were significant, and he had received a 2-level

enhancement due to his involvement as "an organizer, leader,

manager, or supervisor in [the] criminal activity.” U.S.S.G.

§ 3B1.1(c). Such culpability provides an "intuitive reason”

for the court's decision to deny the motion for a sentence

reduction, Chavez-Meza, 138 S. Ct. at 1967. Moreover,

Judge Hatter stated that he had considered the § 3553(a)

factors. See id. at 1964–65 (approving a court's explanation

as sufficient when it certified that it had "considered

petitioner's motion and had taken into account the § 3553(a)

factors” (cleaned up)). Giving due deference to Judge

Hatter's professional judgment, we conclude that Judge

Hatter's "statement of reasons was brief but legally

sufficient,” and fell easily within the scope of "the judge's

own professional judgment.” Rita v. United States, 551 U.S.

338, 339, 356, 358 (2007); see also Chavez-Meza, 138 S. Ct.

at 1967–68. The dissent attempts to distinguish Chavez-Meza

because Judge Hatter "denied all relief” when he denied

Wilson's second § 3582(c)(2) motion, whereas the district

court in Chavez-Meza "grant[ed] substantial but not all

relief.” Dissent at 45. But there is no basis for the dissent's

suggestion that a district judge must provide a longer or

shorter explanation depending on the amount of relief

UNITED STATES V. WILSON 17

granted. Dissent at 44–45. Rather, Chavez-Meza made clear

that we defer to "the judge's own professional judgment,”

138 S. Ct. at 1966 (quoting Rita, 551 U.S. at 356), in

determining whether the judge's explanation was adequate.

C

Wilson also argues that the district court's denial of his

motion is substantively unreasonable. We review the

substantive reasonableness of a sentence imposed by the

district court "under an abuse-of-discretion standard,” Gall v.

United States, 552 U.S. 38, 51 (2007), "and will provide

relief only in rare cases,” United States v. Ressam, 679 F.3d

1069, 1088 (9th Cir. 2012) (en banc). Reversal is "not

justified simply because this court thinks a different sentence

is appropriate. Rather, this court should only vacate a

sentence if the district court's decision not to impose a lesser

sentence was illogical, implausible, or without support in

inferences that may be drawn from the facts in the record.”

United States v. Laurienti, 731 F.3d 967, 976 (9th Cir. 2013)

(cleaned up). "Although we do not automatically presume

reasonableness for a within-Guidelines sentence, in the

overwhelming majority of cases, a Guidelines sentence will

fall comfortably within the broad range of sentences that

would be reasonable in the particular circumstances.” Id.

(cleaned up).

Wilson argues that his sentence is substantively

unreasonable because his current term of imprisonment

(52 months for Count 13 plus 235 months for Counts 1–11)

is not at the low end of the applicable range for the grouped

counts, unlike the term Judge Takasugi originally imposed in

2006. Because the nature of Wilson's offense had not

changed since 2006, and there was evidence of his efforts to

18 UNITED STATES V. WILSON

rehabilitate himself since that time, Wilson claims there was

no reason for Judge Hatter to impose anything other than a

low-end sentence. According to Wilson, Judge Hatter was

substantively unreasonable in declining to modify the

sentence so the 52 month term for Count 13 would run

concurrently with the sentence on Counts 1–11.

We disagree. Wilson fails to recognize that it was within

Judge Hatter's discretion to conclude that a 287-month

sentence for the grouped Counts 1–11 and 13 was

appropriate. As the Supreme Court explained in ChavezMeza, there is no presumption that Judge Hatter would take

the same approach in the § 3582(c) proceeding as that taken

by Judge Takasugi in the original sentencing and "choose a

point within the new lower Guidelines range that is

proportional to the point previously chosen in the older higher

Guidelines range.” 138 S. Ct. at 1966 (cleaned up). The 287-

month termthat Judge Hatter imposed for the grouped Counts

1–11 and 13 is within the applicable Guidelines range of

235–293 months.5 Moreover, the parties had stipulated to the

range Judge Hatter imposed, which further undercuts any

5 After Amendment 782, the applicable Guidelines range for the

grouped Counts 1–11 and 13 is 235–293 months. Under the Guidelines,

the offense level applicable to the most serious of the counts comprising

the group is the offense level applicable to the entire group. U.S.S.G.

§ 3D1.3(a). The parties do not argue that Judge Hatter applied an

incorrect Guidelines range in 2015 for the entire group, and the new term

of 287 months is within the range. Therefore, Wilson's reliance on

Munoz-Camarena, 631 F.3d 1028, and United States v. Trujillo, 713 F.3d

1003 (9th Cir. 2013), is misplaced, because the district court in

Munoz-Camarena applied the incorrect range, 631 F.3d at 1029–30, and

the district court in Trujillo imposed a sentence outside of the Guidelines

range, 713 F.3d at 1005.

UNITED STATES V. WILSON 19

argument that taking the agreed-upon approach was an abuse

of discretion.

Nor was Judge Hatter required to give more weight to

Wilson's rehabilitative efforts in prison than to the nature of

Wilson's offense conduct. "The weight to be given the

various factors in a particular case is for the discretion of the

district court.” United States v. Gutierrez-Sanchez, 587 F.3d

904, 908 (9th Cir. 2009). Wilson argues that the district court

erred because the Guidelines already took into account the

aggravating circumstances of Wilson's offense, but as we

have pointed out, "there is nothing under § 3553(a), or any

other provision, which barred the district court from

considering” factors that were "fully accounted for” by the

Guidelines calculations in deciding whether to grant or deny

a reduced sentence. Dunn, 728 F.3d at 1158–59.

In short, this is one of "the overwhelming majority of

cases,” wherein a within-Guidelines sentence "fall[s]

comfortably within the broad range of sentences that would

be reasonable in the particular circumstances.” Laurienti,

731 F.3d at 976 (cleaned up). Again, we have recognized that

"a Guidelines sentence 'will usually be reasonable.'” United

States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (quoting

Rita, 551 U.S. at 338). We therefore conclude that the district

court's denial of Wilson's motion was not substantively

unreasonable.

AFFIRMED.