United States of America v. JULIUS LEWIS and TITUS LEWIS

This disposition is not appropriate for publication and is not precedent except as*
provided by Ninth Cir. R. 36-3.
The Honorable Raner C. Collins, United States District Judge for the District of**
Arizona, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JULIUS LEWIS and TITUS LEWIS,
Defendants - Appellants.
Nos. 09-30308, 09-30309
D.C. Nos. 2:06-CR-00033-JLQ-1
2:06-CR-00033-JLQ-2
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quakenbush, District Judge, Presiding
Argued and Submitted October 8, 2010
Seattle, Washington
Before: THOMAS and M. SMITH, Circuit Judges, and COLLINS, District
Judge.**
Julius and Titus Lewis appeal from the district court’s grant in part of their
motions for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) (2006), based
on the crack cocaine amendments to the sentencing guidelines. See U.S.
FILED
OCT 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Sentencing Guidelines Manual (U.S.S.G.) app. C, amend. 706 (2007). Julius and
Titus Lewis requested a two-level reduction in their offense level and sentences at
the bottom of the amended guideline range. The district court reduced their
offense level, but imposed sentences at the higher end of the amended guideline
range. The parties are presumed to be familiar with the remaining facts, and we do
not recount them here except as necessary to explain our decision.
The Lewises assert on appeal that (1) the district court misconstrued its role
during the 18 U.S.C. § 3582(c)(2) hearing by stating that it was limited to
determining the sentence it would have imposed had the amended guidelines been
in effect at the time of the Lewises’ initial sentencing, thereby foreclosing a proper
inquiry of the 18 U.S.C. § 3553(a) factors; and (2) the district court abused its
discretion in reducing the Lewises’ sentences. We have jurisdiction under 28
U.S.C. § 1291 and affirm.
We review a 18 U.S.C. § 3582(c)(2) sentence reduction decision for abuse of
discretion. United States v. Colson, 573 F.3d 915, 916 (9th Cir. 2009). “‘A district
court may abuse their 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.
Sprague, 135 F.3d 1301, 1304 (9th Cir. 1998) (quoting United States v. Plainbull,
957 F.2d 724, 725 (9th Cir. 1992)). “Underlying questions of law are reviewed de
novo.” United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009) (citing

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United States v. Paulk, 569 F.3d 1094, 1095 (9th Cir. 2009)(per curiam)).
1. Role of the District Court at Sentence Reduction Hearing
Under 18 U.S.C. § 3582(c), a court “may not modify a term of imprisonment
once it has been imposed.” However, 18 U.S.C. § 3582(c)(2) creates an exception
to this rule and allows modification of a term of imprisonment if the sentence is
“‘based on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. § 994(o)’ and made retroactive
pursuant to § 994(u).” Dillon v. United States, 130 S. Ct. 2683, 2690 (2010)
(quoting 18 U.S.C § 3582(c)(2)).
The Supreme Court in Dillon outlined the two-step inquiry the district court
is required to perform in deciding a § 3582(c)(2) motion. First, “§ 3582(c)(2)
requires the [district] court to follow the Commissions instructions in [U.S.S.G.]
§ 1.B1.10 to determine the prisoner’s eligibility for a sentence modification and the
extent of the reduction authorized.” Id. at 2691. Second, “§ 3582(c)(2) instructs a
[district] court to consider any applicable [18 U.S.C.] § 3553(a) factors and
determine whether, in its discretion, the reduction authorized by reference to the
policies relevant at step one is warranted in whole or in part under the particular
circumstances of the case.” Id. at 2692. Based on the nature of this inquiry, the
Court emphasized that a consideration of Ҥ 3553(a) is appropriate only at the
second step of this circumscribed inquiry” and “it cannot serve to transform the

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proceedings under § 3582(c)(2) into plenary resentencing proceedings.” Id.
The Lewises’ contention that the district court misconstrued its role during
the § 3582(c)(2) sentence reduction hearing and failed to conduct a proper analysis
of the § 3553(a) factors is unavailing. Specifically, the Lewises argue that the
district court failed to consider their post-conviction efforts toward rehabilitation,
which they assert is relevant under the “history and characteristics” prong of the §
3553(a) analysis. This position is belied by the record. The district court, during
the sentence reduction hearing, expressly stated that it considered the
§ 3553(a) factors and that it could not ignore the Lewises’ accomplishments since
their incarceration. Accordingly, the district court considered the Lewises’ post-
conviction rehabilitation efforts.
To the extent the district court made inexact statements about the scope of its
role during the § 3582(c)(2) hearing, these statements are harmless error because
the Lewises’ substantial rights were unaffected given that the district court did
consider their post-conviction rehabilitation efforts. See
FED. R. CRIM. P. 52(a) (“[a]ny error . . . that does not affect substantial rights must
be disregarded”); see also United States v. Olano, 507 U.S. 725, 734 (1993)
(noting that for an error to affect substantial rights, it “must have affected the
outcome of the district court proceedings”).
2. Reduction of the Lewises’ Sentences

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The district court did not abuse its discretion by reducing the Lewises’
sentences to the higher end of their respective amended guideline ranges. The
district court acknowledged that the sentencing ranges were lowered and reduced
the Lewises’ sentences to terms still within the amended guideline range, while
reiterating facts it relied on at the time of their initial sentencings, such as the
seriousness of their offenses and the need to protect the public. These
considerations satisfy the requirements under § 3553(a) and U.S.S.G. § 1.B1.10.
See 18 U.S.C § 3553(a)(1) (nature and circumstances of offense); id. §
3553(a)(2)(A) (seriousness of offense); id. § 3553(a)(2)(C) (public protection);
U.S.S.G. § 1.B1.10 cmt. n. 1(B)(ii) (public safety). The district court properly
exercised its discretion by stating it had considered the § 3553(a) factors and the
facts it relied on in determining the appropriate sentence reductions for the
Lewises. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc)
(noting that the “district court need not tick off each of the § 3553(a) factors to
show that it has considered them”).
AFFIRMED.

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