UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY E. MOORE, Defendant-Appellant.
No. 21-2431
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 14, 2022 — DECIDED JULY 25, 2022
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
Appeal from the United States District Court for the Southern District of Illinois.
No. 4:06-cr-40063-JPG-3 — J. Phil Gilbert, Judge.
HAMILTON,
Moore challenges the district court‘s decision on three grounds. He argues that the court (1) misunderstood his Mathis argument, (2) created an unwarranted sentencing disparity when it later considered a co-defendant‘s Mathis argument, and (3) erroneously presumed that his conviction was for a violent crime. We reject all three challenges and affirm the district court‘s decision to reduce Moore‘s sentence, but by less than he wants.
I. Facts and Procedural History
In October 2007, a federal grand jury indicted Moore on several charges. Count One was for conspiracy to distribute at least fifty grams of crack cocaine, Count Three was a felon-in-possession charge, and Count Four was for possession of a firearm in furtherance of a drug-trafficking offense. (Count Two applied only to a co-defendant.) The government filed an information under
At sentencing, the district court‘s guideline calculations began with a base offense level of thirty-four based on the quantity of crack. After enhancements for possession of a weapon during the offense and for Moore‘s career-offender status, his final offense level was thirty-seven. Combined with Moore‘s criminal history category of VI, that produced a guideline recommendation of 360 months to life on Count One and 120 months on Count Three.
At the time, however,
Several years later, Congress passed the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. As we have observed, the Act “made retroactive the lower statutory penalties for crack offenses from the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010).” United States v. Williams, 32 F.4th 653, 654 (7th Cir. 2022). Under section 404 of the First Step Act, defendants convicted of certain crack cocaine offenses before the Fair Sentencing Act took effect may seek sentence reductions. See United States v. Shaw, 957 F.3d 734, 739–40 (7th Cir. 2020).
In 2019, Moore moved for a reduced sentence. In his operative amended motion, he argued that the district court should consider the current Sentencing Guidelines, the 18
The government conceded that Moore was legally eligible for a sentence reduction. It argued, however, that the First Step Act did not require a plenary resentencing involving recalculation of Moore‘s criminal history category. The government said that Moore‘s guideline range should remain 360 months to life, so the court should not reduce his sentence at all. Even if the court were to reduce Moore‘s sentence, the government argued, it should not go any lower than 420 months based
The district court agreed that Moore was legally eligible for a sentence reduction under the First Step Act but held that he was not entitled to a plenary resentencing. As a result, the court said that it would not apply Mathis and instead would continue “to apply the career-offender enhancement when deciding on a proper sentence.” Then, analyzing the
II. The Mathis Argument
First, Moore asserts that the district court erred because it considered his Mathis argument with respect to only the career-offender guideline — not with respect to the statutory enhancement. We review the denial of a First Step Act motion for abuse of discretion. United States v. Sutton, 962 F.3d 979, 986 (7th Cir. 2020).
In the district court, Moore argued that after Mathis, his prior convictions no longer qualified as predicate drug offenses. On appeal, he says the district court “mistakenly believed that [his] Mathis argument applied only to his discretionary career-offender guideline or failed to consider his statutory argument.” Moore focuses on the court‘s statement that it would not apply “intervening judicial decisions” but would continue to apply the “career-offender enhancement.” This language, Moore says, shows that the district court considered his Mathis argument only insofar as it might have affected his guideline range.
The argument is not persuasive. Moore‘s interpretation of the order assumes that the veteran district judge failed to understand that the Mathis argument also applied to the statutory enhancement. Mathis itself was a statutory case, of course. And Moore‘s position, questionable on its face, is even harder to accept given that Moore‘s amended First Step Act motion — which the district judge cited throughout the order — repeatedly referred to the statutory enhancement. See Amended Motion to Reduce Sentence at 3–4, Dkt. 532 (“Under the reasoning of Mathis, however, [Moore] no longer has the convictions necessary to support the
There is, to be sure, some potential ambiguity in the order. The district court framed Moore‘s argument as whether “his prior felony convictions are not predicate offenses for a career-offender designation,” and it did not expressly mention the statutory enhancement. But even if every page of the order is not as precise as we might wish with the benefit of hindsight, we have no trouble concluding that the district court made a deliberate decision not to apply Mathis to either the guideline or statutory enhancements. The court acknowledged correctly that in acting on a First Step Act motion, it was permitted to apply intervening judicial decisions — such as Mathis — but it said explicitly that “the
Even if Moore were correct that the district court misunderstood his argument, that mistake almost certainly had no effect on his new sentence. The court made clear that its decision was based on the
III. The Disparity Argument
Next, Moore argues that the district court‘s failure to apply Mathis created an unwarranted sentencing disparity between him and a co-defendant, rendering his sentence substantively unreasonable. The government says we should review that issue for plain error because Moore forfeited any disparity argument by failing to raise it in the district court. We have said, however, that forfeiture is “the mere failure to raise a timely argument, due to either inadvertence, neglect, or oversight.” Henry v. Hulett, 969 F.3d 769, 786 (7th Cir. 2020) (en banc). None of those labels apply to Moore‘s disparity argument, which is based on his co-defendant‘s First Step Act resentencing more than a month after his own resentencing. Cf. United States v. Williams, 819 F.3d 1026, 1031 (7th Cir. 2016) (finding plain error review inappropriate because “we cannot confidently say that there was an opportunity to object“). Accordingly, we review the district court‘s decision on this issue for abuse of discretion. Sutton, 962 F.3d at 986.3
“A sentence is substantively reasonable ‘if the district court gives meaningful consideration to the factors enumerated in
Several years ago, the law in this circuit was that a defendant could not raise a disparity argument based on a co-defendant‘s sentence. E.g., United States v. Woods, 556 F.3d 616, 623 (7th Cir. 2009) (“We look at a disparity only if it is between the defendant‘s sentence and all other similar sentences imposed nationwide.“); United States v. Omole, 523 F.3d 691, 700 (7th Cir. 2008) (“This court refuses to view the discrepancy between sentences of codefendants as a basis for challenging a sentence.“); United States v. Boscarino, 437 F.3d 634, 638 (7th Cir. 2006) (“[T]he kind of ‘disparity’ with which
We shifted course, however, in United States v. Statham, 581 F.3d 548 (7th Cir. 2009). There, the defendant raised a disparity challenge based on his co-defendants’ sentences. Although we ultimately rejected that defendant‘s challenge, we made clear that we were “not relying on any presumption that a sentencing disparity is problematic only if it is between the defendant‘s sentence and the sentences imposed on other similarly situated defendants nationwide.” Id. at 556. Such a rule, we said, was foreclosed by Gall v. United States, 552 U.S. 38 (2007). In that case, the Supreme Court “endorsed a district court‘s consideration of the need to ‘avoid unwarranted disparities, but also [...] unwarranted similarities among other co-conspirators’ when calculating a reasonable sentence.” Statham, 581 F.3d at 556, quoting Gall, 552 U.S. at 55. As a result, we made clear that our court is “open in all cases to an argument that a defendant‘s sentence is unreasonable because of a disparity with the sentence of a co-defendant.” Id.
We attempted to provide more clarity in United States v. Solomon, 892 F.3d 273 (7th Cir. 2018), explaining that a district court “is entitled, if it wishes, to apply the rule against unwarranted disparities to co-defendants’ sentences.” Id. at 278, citing Statham, 581 F.3d at 556. We took the “opportunity to clarify that the district court‘s discretion extends this far — a point that may not be as clear as it should be in light of language in some of our decisions.” Id., citing United States v. Durham, 645 F.3d 883 (7th Cir. 2011), and Scott, 631 F.3d 401; see also United States v. Pennington, 908 F.3d 234, 239 (7th Cir. 2018) (“Pennington is incorrect in saying that the ‘unwarranted disparities’ factor in
The upshot of this progression is that this circuit no longer categorically forecloses arguments about unwarranted sentencing disparities between co-defendants. We recently reaffirmed that our court is “open in all cases to an argument that a defendant‘s sentence is unreasonable because of a disparity with the sentence of a co-defendant,” though we recognized that “such an argument will have more force when a judge departs from a correctly calculated Guidelines range to impose the sentence.” United States v. Sanchez, 989 F.3d 523, 541 (7th Cir. 2021), quoting Statham, 581 F.3d at 556. A defendant who believes he has received an improperly disparate sentence as compared to a co-defendant may bring such a challenge.
B. Moore‘s Co-Defendant
In this appeal, Moore‘s disparity argument rests on the sentence of a co-defendant, Answar Rollins. Rollins was charged with Count One, conspiring to distribute at least fifty grams of crack cocaine, and Count Two, possessing with intent to distribute less than five grams of crack cocaine. Unlike Moore, however, Rollins pleaded guilty and had only one prior Illinois drug conviction. Judge Gilbert originally sentenced Rollins to 240 months in prison — the statutory minimum — on Count One and 121 months on Count Two, to be served concurrently. He imposed a ten-year term of supervised release on Count One and a six-year term on Count Two, also to run concurrently. The judge later reduced the prison sentence to 103 months based on Amendment 782 to the Sentencing Guidelines, which the Sentencing Commission made retroactive. Rollins began serving his supervised release term in October 2015.
In 2018, however, the court revoked Rollins’ supervised release because he had “resumed drug activities.” He was sentenced to another twenty-four months in prison, to be followed by the ten-year term of supervised release he received originally for Count One. In addition, Rollins pleaded guilty to two new charges and received a sentence of 151 months in prison, along with supervised release terms of five years and three years. The old and new prison sentences were to run consecutively. The supervised release terms, however, were to run concurrently. As a result of the 2018 revocation and his new convictions, Rollins would serve the ten-year term — the longest of his supervised release terms — upon his release from prison.
The court first said that it would not conduct a plenary resentencing of Rollins. Although the court assumed that Rollins’ Mathis argument was correct on the merits, the court made clear that it was “not obligated to reduce Rollins‘s supervised release terms at all, much less to the statutory minimum to which he would have been subject were he sentenced today.” The court then turned to the
C. Unwarranted Disparity?
Moore asserts that the district court created a sentencing disparity by applying Mathis in Rollins’ First Step Act resentencing but not his own. We are not persuaded. For one,
Several factors distinguished Rollins’ First Step Act case from Moore‘s. Rollins had already received a sentence reduction. He was seeking only a reduced term of supervised release, not a reduced term of imprisonment. He had also pleaded guilty to all charges, both the original ones and the new 2018 ones. See United States v. Fitzpatrick, 32 F.4th 644, 652 (7th Cir. 2022) (holding that other defendants’ having cooperated or agreed with government qualified “as reasonable sentencing differences based on rewards for cooperation“). Nor were their original offenses the same. Although both were convicted of conspiracy to distribute at least fifty grams of crack cocaine, Moore was also convicted of a felon-in-possession charge, while Rollins pleaded guilty to a separate charge for possessing a smaller amount of crack cocaine. And they received different sentences: life in prison for Moore because of his four prior Illinois drug convictions, but 240 months for Rollins, who had only one such prior conviction. Cf. United States v. Lee, 897 F.3d 870, 873 (7th Cir. 2018) (rejecting disparity argument where “Lee did not identify any defendant with a similar
In both cases, moreover, the district court made clear that its reduced sentence was based on the
We see no abuse of discretion in the district court‘s reasoning here. Mathis showed the Supreme Court‘s strict application of the categorical method under the Armed Career Criminal Act. We have properly followed that strict approach in Ruth, 966 F.3d at 648, De La Torre, 940 F.3d at 651–52, and other cases. We have held that even small differences between the scope of federal and state drug laws (e.g., just which isomers of cocaine or methamphetamine are covered, or whether a state‘s list of controlled substances includes one or two items not covered by federal law) can defeat application of the federal Armed Career Criminal Act and sentencing enhancements in
As we have emphasized repeatedly, a district court “has broad discretion to balance the
IV. Mistaken Characterization?
Finally, Moore says the district court erroneously presumed that his conviction was for a violent crime. Once again, our review is for abuse of discretion. Sutton, 962 F.3d at 986.
In discussing the
That argument places far too much weight on these comments. The court was not applying the “categorical approach” for classifying offenses and prior convictions. Instead, the court was responding to Moore‘s own assertion in a supplemental filing that he was “serving a life sentence
AFFIRMED.