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United States v. Mock

July 19, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
JOHN MOCK III, DEFENDANT-APPELLANT,
JESSE JAMES BELK, DEFENDANT.



SYLLABUS BY THE COURT

Appeal from the district court's denial of defendant's motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2).

AFFIRMED.

Per curiam.

Submitted: July 15, 2010

Before: WESLEY, HALL, Circuit Judges, and GOLDBERG, Judge.*fn1

Defendant-Appellant John Mock III appeals from the district court's denial of his motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2), which he filed based on the amendments to the U.S. Sentencing Guidelines relating to the base offense levels for crack-related offenses, see U.S.S.G., Supp. to App. C., Amend. 706 (effective Nov. 1, 2007); see also id. Amend. 713 (effective Mar. 3, 2008) (collectively, the "crack cocaine amendments"). The district court reasoned that, because Mock was originally sentenced as a career offender, see U.S.S.G. § 4B1.1, he was ineligible for a sentence reduction based on the crack cocaine amendments.

On appeal, Mock argues that the district court erred at his original sentencing because it did not state in open court the reasons for its application of the career offender Guideline. See 18 U.S.C. § 3553(c). Therefore, he argues, the district court also erred in denying his motion for a reduction in sentence by relying on its prior erroneous application of U.S.S.G. § 4B1.1. Based on these contentions, defendant seeks a remand for "analysis of [his] criminal history" and "compliance with 18 U.S.C. § 3553(c)."

Defendant's arguments misapprehend the scope of a district court's authority to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). As the Supreme Court recently made clear in Dillon v. United States, No. 09-6338, --- S.Ct. ---, 2010 WL 2400109 (U.S. June 17, 2010), this provision authorizes a "limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding." Id. at *5. Therefore, neither the district court nor this Court is free to address, in a proceeding pursuant to 18 U.S.C. § 3582(c)(2), defendant's arguments regarding procedural errors at his original, now-final sentencing. Moreover, at least for purposes of a motion for a reduced sentence, the record discloses that defendant was sentenced as a career offender under U.S.S.G. § 4B1.1. Consequently, under settled case law in this Circuit, he is ineligible for a reduction in sentence based on the crack cocaine amendments. See United States v. Martinez, 572 F.3d 82, 885-86 (2d Cir. 2009) (per curiam). Accordingly, we affirm.

I. BACKGROUND

In 1997, Mock pleaded guilty, pursuant to a plea agreement, to one count of possessing five or more grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). In the plea agreement, Mock and the government stipulated that: (1) Mock was a "career offender" under U.S.S.G. § 4B1.1(b); (2) based in part on that classification, the applicable Guidelines range was 188 to 235 months; and (3) they would jointly recommend to the district court a 188-month term of imprisonment. Following defendant's guilty plea, the U.S. Probation Department completed a presentence report ("PSR"), which also concluded that Mock was a career offender under U.S.S.G. § 4B1.1 and concurred in the Guidelines calculation in the plea agreement.

The district court conducted a sentencing proceeding in January 1998. After statements by Mock's counsel, Mock, and the government, the court declined to enter the 188-month sentence urged by the parties. Instead, it reasoned that, in light of "the magnitude of [Mock's] criminal conduct" and his "very serious criminal record," a 212-month term of imprisonment was appropriate. Following the sentencing, in its written statement of reasons, the district court indicated that it had "adopt[ed] the undisputed factual statements contained in the PSR."

Mock did not pursue a direct appeal of his conviction or sentence. However, following the crack cocaine amendments, Mock, acting pro se, filed a motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the motion on June 23, 2009, reasoning that, "[b]ecause defendant was sentenced as a career offender and did not receive a downward departure, he is ineligible in accordance with U.S.S.G. § 1B1.10, comment, for a sentence reduction." Still acting pro se, Mock filed a notice of appeal on October 3, 2009. We granted his motion for an appointment of counsel approximately one month later.*fn2

II. DISCUSSION

We review for abuse of discretion a district court's denial of a motion pursuant to 18 U.S.C. § 3582(c)(2). See United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009). Mock's principal appellate argument proceeds in two steps. First, he argues that the district court erred at his original sentencing by failing to state on the record the fact findings supporting the application of the career offender Guideline, U.S.S.G. § 4B1.1. See 18 U.S.C. § 3553(c). Second, Mock contends that, in light of the error at his ...


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