Submitted: April 11, 2016
from United States District Court for the Northern District
of Iowa - Dubuque
COLLOTON, ARNOLD, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
31, 2006, Torris Izell Boyd pled guilty to distribution of
cocaine base near a playground in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 860 as well as 18
U.S.C. § 2. At sentencing, the district
court calculated a total offense level of 38
along with a category IV criminal history. The guideline
range equated to 324-405 months, but the district court
imposed a below-guidelines sentence of 308 months'
imprisonment pursuant to United State Sentencing Guideline
("U.S.S.G.") § 5K1.1. We affirmed Boyd's
conviction and sentence on November 28, 2007. United
States v. Boyd, 256 F.App'x 890 (8th Cir. 2007) (per
curiam) (unpublished). In 2008, the district court
retroactively applied two amendments to the Guidelines,
Amendment 706 and Amendment 715, and exercised its discretion to
grant Boyd a reduction in his sentence under 18 U.S.C. §
3582(c)(2) and U.S.S.G. § 1B1.10. Boyd's sentence
was ultimately reduced to 279 months. The district court
again examined Boyd's sentence in 2013 to determine
whether a sentence reduction pursuant to Amendment
was warranted. The district court denied Boyd's motion to
reduce his sentence but advised that if Boyd improved his
disciplinary record and availed himself of educational
courses within the prison system over the next three years,
he could move the court for a sentence reduction at that
782 became effective November 1, 2014, and retroactively
reduced most drug quantity base offense levels by two levels.
United States v. Thomas, 775 F.3d 982, 982-83 (8th
Cir. 2014) (per curiam). Based on his conviction and
sentence, Boyd was eligible for an Amendment 782 reduction.
The district court held a hearing on April 28, 2015 pursuant
to its own motion under § 3582(c)(2) to determine
whether a reduction in Boyd's sentence in accordance with
Amendment 782 was justified. The district court noted
Boyd's extensive criminal history and record of
misconduct while incarcerated, which included over thirty
disciplinary violations. Emphasizing the nature and
seriousness of the danger to a person or the community that
may be posed by a reduction in Boyd's term of
imprisonment, the district court considered the 18 U.S.C.
§ 3553(a) factors, as well as the provisions and
commentary of U.S.S.G. § 1B1.10, and determined that in
light of the defendant's criminal history and extensive
record of post-sentencing misconduct, a further reduction was
timely appealed the district court's denial of the §
3582(c)(2) motion. We review the district court's
decision on a retroactive sentence reduction under §
3582(c)(2) for an abuse of discretion. United States v.
Anderson, 707 F.3d 973, 974 (8th Cir. 2013) (per
curiam). Boyd argues the district court abused its discretion
by failing to recognize that his prior criminal history and
recidivism were fully accounted for in his original sentence
and that his prison disciplinary violations were adequately
addressed through the prison disciplinary system, including a
substantial loss of credit for good time.
district court may reduce a previously imposed prison term if
the defendant's sentence was 'based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission . . . if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.'" Thomas, 775 F.3d at 982
(quoting 18 U.S.C. § 3582(c)(2)). The plain language of
§ 3582(c)(2) allows a district court wide latitude,
stating that "the court may reduce the term of
imprisonment, after considering the factors set forth in [18
U.S.C. §] 3553(a) to the extent that they are
applicable." (emphasis added). Even where a defendant is
eligible for a sentence reduction, the "doubly
discretionary" language of § 3582(c)(2) does not
entitle a defendant to a reduced sentence. United States
v. Long, 757 F.3d 762, 764 (8th Cir. 2014) (quoting
United States v. Johnson, 703 F.3d 464, 470 (8th
Cir. 2013)). In fact, "[f]ar from creating a substantive
right to a modification, '§ 3582(c)(2) represents a
congressional act of lenity.'"
Johnson, 703 F.3d at 469 (emphasis added) (quoting
Dillon v. United States, 560 U.S. 817, 828 (2010)).
U.S.S.G. § 1B1.10(b)(1), a district court "shall
substitute" the amended Guidelines range for the initial
range and "shall leave all other guideline application
decisions unaffected." The Application Notes for
U.S.S.G. § 1B1.10 advise the district court to consider
the § 3553(a) factors, "the nature and seriousness
of the danger to any person or the community that may be
posed by a reduction in the defendant's term of
imprisonment, " and "post-sentencing conduct of the
defendant that occurred after imposition of the term of
imprisonment." U.S.S.G. § 1B1.10 cmt. n. 1(B).
that Boyd's criminal history contained a second-degree
murder conviction among multiple other offenses committed as
both a juvenile and an adult. His record of misconduct while
incarcerated for his current conviction includes thirty acts
that required administrative sanctions, including fights,
introduction of drugs/alcohol, possession of a dangerous
weapon, assault, property destruction, and sexual activity.
Given the district court's explicit statement regarding
its consideration of the § 3553(a) factors, the nature
and seriousness of the danger to other persons or the
community that a reduction in Boyd's sentence may pose,
and Boyd's post-sentencing conduct, we are satisfied that
the district court adequately weighed the appropriate factors
in its decision to deny a sentence reduction. The length of
Boyd's post-sentencing misconduct report demonstrates
both his failure to improve his behavior as well as the
seriousness of the danger posed to the community by a further
reduction in his sentence. Boyd's loss of good time
credit as a result of his behavior is of no consequence to
the district court's sentence reduction decision. Our
review of Boyd's sentence reveals no abuse of the
district court's wide discretion.
we affirm the district court's denial of the 18 U.S.C.
§ 3582(c)(2) motion to reduce Boyd's sentence
pursuant to Amendment 782.
The Honorable Linda R. Reade, Chief
Judge, United States District Court for the Northern District
Amendment 706 reduced the base offense
level for offenses involving cocaine base by two levels.
United States v. Higgins, 584 F.3d 770, 771 (8th
Cir. 2009). In 2008, Amendment 715 replaced Amendment 706 and
created a uniform two-level reduction for the same offenses.
United States v. Ivory, 388 ...