Submitted February 9, 2015
Appeal from United States District Court for the Northern District of Iowa, Waterloo.
For United States of America, Plaintiff - Appellee: Dan Chatham, Assistant U.S. Attorney, Martin Joseph McLaughlin, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Cedar Rapids, IA.
Adam Lawin, Defendant - Appellant, Pro se, Leavenworth, KS.
For Adam Lawin, Defendant - Appellant: David E. Mullin, MULLIN & LAVERTY, Cedar Rapids, IA.
Before BYE, BRIGHT, and BENTON, Circuit Judges. BRIGHT, Circuit Judge, dissenting.
Adam Lawin pleaded guilty to one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(C), and 846. The district court sentenced him to 147 months' imprisonment and 5 years' supervised release. Lawin argues the district court erred in denying his motion for a downward variance and in denying his request to continue the sentencing hearing. We affirm.
In early 2012, Lawin began to purchase and distribute 3,4-methylenedioxymethamphetamine, also known as MDMA or ecstasy. The government charged him with one count of conspiring to distribute a controlled substance and one count of possessing with intent to distribute a controlled substance. In February 2014, Lawin pleaded guilty to the conspiracy count pursuant to a plea agreement. The district court calculated Lawin's sentencing guidelines range to be 135 to 168 months and sentenced him to 147 months' imprisonment. Before the sentencing hearing on June 19, 2014, both parties asked the court to vary downward by two levels in anticipation of Amendment 782 to the United States Sentencing Guidelines. At the sentencing hearing, the district court recognized it had the authority to vary downward but declined to do so, explaining the then-proposed amendment was not guaranteed to take effect.
On appeal, Lawin argues the district court erred in denying the motion to vary downward by two levels from the correctly calculated guidelines range in anticipation of Amendment 782. Our case law on this issue is clear: " [T]he district court was not required to consider the pending guidelines amendment. Consideration of the pending amendment is merely permissible, not required." United States v. Allebach, 526 F.3d 385, 389 (8th Cir. 2008); United States v. Davis, 276 F.App'x 527, 528 (8th Cir. 2008) (rejecting the argument that " the district court imposed an unreasonable sentence because it failed to consider a proposed amendment to the Guidelines that would have lowered the advisory Guidelines imprisonment range" ); United States v. Harris, 74 F.3d 1244 (8th Cir. 1996). The district court considered and rejected prospectively applying Amendment 782. It did not err in so doing. Without any supporting authority, the dissent attempts to distinguish our case law on the basis that this case involves a different amendment and states that " [t]he applicability of the cases [above] . . . may be questionable." However, our holdings were not limited to any specific amendment. Moreover, they follow the firmly-established principle that the court must apply the Sentencing Guidelines in effect at the time of sentencing unless doing so would violate the ex post facto clause of the United States Constitution. See, e.g., United States v. Adams, 509 F.3d 929, 932 n.4 (8th Cir. 2007).
Lawin also argues the district court erred in denying his request to continue the sentencing hearing until after November 1, 2014. " We will reverse a district court's decision to deny a motion for continuance only if the court abused its discretion and the moving party was prejudiced
by the denial." United States v. Woods,642 F.3d 640, 644 (8th Cir. 2011) (internal quotation marks omitted). Lawin argues the denial of the continuance prejudiced him because it deprived him of the benefit of Amendment 782, but he fails to articulate how the court abused its discretion in denying the continuance. We find no abuse of discretion. See id. at 644-45 (rejecting appellant's argument that the district court abused its discretion in denying his motion for a continuance until an amendment to the Guidelines took ...