975 F.3d 642
7th Cir.2020Background
- Rashod Bethany pleaded guilty (2009) to a conspiracy to distribute 50 grams or more of crack cocaine; a §851 information elevated the statutory range to 20 years to life.
- At original sentencing (2013) the district court found the offense involved at least 280 grams of crack, applied multiple enhancements, and imposed a below-Guidelines sentence of 300 months.
- On direct appeal (Bethany I) the Seventh Circuit affirmed in relevant part; Bethany later filed a §2255 petition alleging ineffective assistance for advocating a “split-book” Guidelines approach.
- The district court granted §2255 relief as to that counsel claim, vacated the sentence, and ordered resentencing under the 2005 Guidelines; parties submitted competing guideline and statutory analyses for resentencing.
- Congress enacted the First Step Act (Dec. 21, 2018) before the resentencing; Bethany argued he was entitled to §401 (narrowed predicate offense definition) and §404 (retroactive Fair Sentencing Act benefits) and to retroactive guideline amendments; the district court resentenced him in 2019 to 250 months.
- Bethany appealed, raising three issues: applicability of §401, applicability of §404, and whether the court erred by not applying retroactive guideline amendments sua sponte.
Issues
| Issue | Plaintiff's Argument (Bethany) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether §401 of the First Step Act applies to Bethany (i.e., was he a “sentenced” defendant when the Act was enacted) | §401 applies because his original sentence had been vacated by the §2255 grant and he was a convicted but unsentenced defendant when the Act took effect | §401 does not apply because Bethany already had an imposed sentence before the Act and thus was not an unsentenced offender on enactment date | Court held §401 applies (following Uriarte reasoning); limited remand ordered so district court can state whether it would resentence in light of §401 because the record leaves doubt whether the sentence depended on the old mandatory minimum |
| Whether §404 (retroactive Fair Sentencing Act relief) applies to reduce sentence further | Bethany argued his conviction qualified as a “covered offense” and he should benefit from §404 reductions (and Alleyne error) | Government argued he already received Fair Sentencing Act benefits at earlier sentencing/resentencing; Alleyne claim is foreclosed by prior direct appeal | Court held Bethany’s conviction is a “covered offense” in statutory terms, but he already benefited from the Fair Sentencing Act and Alleyne-based collateral relief is foreclosed by his prior appeal (Bethany I) |
| Whether district court was required to apply retroactive Guidelines amendments (Amendments 706/750/782) sua sponte at resentencing | Bethany asked the court to grant guideline reductions (equivalent to a §3582(c)(2) reduction) without forcing him to file a separate §3582(c)(2) motion | Government treats this as an improper attempt at a “split-book” benefit; court not compelled to grant reductions absent a §3582(c)(2) motion | Court held application of retroactive guideline reductions is discretionary under 18 U.S.C. §3582(c)(2); the district court was not required to reduce the sentence sua sponte |
Key Cases Cited
- Alleyne v. United States, 570 U.S. 99 (2013) (facts increasing mandatory minimum must be submitted to a jury)
- Peugh v. United States, 569 U.S. 530 (2013) (applying Guidelines promulgated after offense may violate Ex Post Facto Clause if it increases range)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- United States v. Paladino, 401 F.3d 471 (7th Cir. 2005) (procedure for limited remand to district court to ask whether resentencing would occur)
- United States v. Barnes, 948 F.2d 325 (7th Cir. 1991) (vacatur of sentence renders it a nullity)
- United States v. Shaw, 957 F.3d 734 (7th Cir. 2020) (whether an offense is a §404 “covered offense” depends on the statute of conviction)
- White v. United States, 371 F.3d 900 (7th Cir. 2004) (collateral proceedings cannot relitigate issues decided on direct appeal)
- United States v. Purnell, 701 F.3d 1186 (7th Cir. 2012) (§3582(c)(2) sentence reductions are discretionary)
- United States v. Bethany, [citation="569 F. App'x 447"] (7th Cir. 2014) (direct appeal resolving Alleyne and Guidelines issues)