UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TONY LAMAR BURRIS, Defendant - Appellant.
No. 19-6122
United States Court of Appeals for the Tenth Circuit
March 30, 2022
PUBLISH. (D.C. No. 5:03-CR-00213-R-1). Christopher M. Wolpert, Clerk of Court.
Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:03-CR-00213-R-1)
Susan M. Otto, Federal Public Defender (Laura K. Deskin, Research & Writing Specialist, Oklahoma City, Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, for Defendant – Appellant.
Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, with him on the briefs), Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, Oklahoma, for Plaintiff – Appellee.
Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
In 2004, Tony Burris pleaded guilty to possession with intent to distribute crack cocaine, and the district court sentenced him to 262 months in prison, the low end of his sentencing range under the United States Sentencing Guidelines (the Guidelines). After Congress passed the Fair Sentencing Act of 2010, which addressed sentencing disparities between crack and powder cocaine, and made those changes retroactive in the First Step Act of 2018, Burris moved for a reduced sentence. See
Background
A federal grand jury indicted Burris for his role in a drug-distribution conspiracy. Burris pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine, in violation of
Following these changes to the legal landscape, the Probation Office filed a report advising the district court that Burris appeared eligible for a reduced sentence. According to the report, the Fair Sentencing Act decreased Burris‘s statutory minimum and maximum sentences, which in turn decreased his offense level and his resulting Guidelines range, reducing it from 262–327 months to 188–235 months. Burris subsequently filed a motion under
Although the district court determined that Burris was eligible for a sentence reduction, it declined to grant relief. According to the district court, the parties’ arguments presented “myriad legal issues district courts have yet to address or about which they disagree.” R. vol. 1, 162. The district court decided, however, that it “need not resolve these issues” because the First Step Act grants courts discretion to grant or deny relief. Id. Thus, the district court declined to calculate Burris‘s Guidelines range, stating that “[G]uidelines recalculations, whatever their result, are simply one factor in the [c]ourt‘s consideration—and not a controlling one at that.” Id. at 163. The district court then turned to the
Burris appeals.
Analysis
I. Guidelines Calculation
Burris argues that the district court erred when it declined to calculate his revised Guidelines range prior to exercising its discretion to deny relief. We review a district court‘s disposition of a First Step Act motion for abuse of discretion.1 United States v. Mannie, 971 F.3d 1145, 1155 (10th Cir. 2020). “A district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact.” United States v. Piper, 839 F.3d 1261, 1265 (10th Cir. 2016) (quoting United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013)). “We review matters of statutory interpretation, as well as the scope of a district court‘s authority to reduce a sentence, de novo.” United States v. Broadway, 1 F.4th 1206, 1211 (10th Cir. 2021).
Since the district court‘s ruling, we have largely resolved the underlying issues. As the government acknowledges, its original position is no longer viable because we have determined that both a defendant‘s eligibility for First Step Act relief and the calculation of a defendant‘s revised Guidelines range turn on the offense of conviction. United States v. Crooks, 997 F.3d 1273, 1278 (10th Cir. 2021) (holding that eligibility for relief under First Step Act turns on “defendant‘s federal offense of conviction, not his [or her] underlying conduct“); Broadway, 1 F.4th at 1213-14 (holding that “district court should look to the minimum drug quantity associated with an eligible defendant‘s offense of conviction, rather than his underlying conduct” when conducting revised Guidelines calculation).
And critically, as Burris highlights, our decisions have also discussed a district court‘s obligation to calculate the revised Guidelines range prior to deciding, in its discretion, whether to reduce a defendant‘s sentence. In United States v. Brown, we noted that although the First Step Act does not authorize plenary resentencing, effecting the changes contemplated by the First Step Act nevertheless requires a district court to “calculate the defendant‘s Guideline[s] range.” 974 F.3d 1137, 1144 (10th Cir. 2020). We stressed that a correct Guidelines calculation is the “starting point” to any sentencing proceeding and “paramount” when sentencing under the First Step Act. See id. at 1144-45. Likewise, in Crooks, we recognized that the plain language of the First Step Act directs courts to “impose a reduced sentence as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed,” a statutory mandate that ”necessarily requires a correct calculation of the [G]uidelines range.” 997 F.3d at 1278 (emphasis added) (quoting Brown, 974 F.3d at 1145). We therefore determined that “[t]he district court should have recalculated the [G]uidelines range” and instructed the district court on remand to calculate the defendant‘s revised Guidelines range before considering the
As our recent decisions illustrate, a district court is obligated under the First Step Act to correctly calculate the defendant‘s revised Guidelines range prior to exercising its discretion to grant or deny relief. Several of our sibling circuits agree. See United States v. Blake, 22 F.4th 637, 641 (7th Cir. 2022) (per curiam) (“Although
Resisting this conclusion, the government argues that our instruction in Brown to begin with the correct Guidelines calculation conflicts with—and is accordingly negated by—our earlier decision in Mannie. See Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996) (instructing court facing intra-circuit conflict to follow earlier precedent). In so arguing, the government relies on the portion of Mannie in which we addressed the defendant‘s argument that we should review a decision under the First Step Act “for an abuse of sentencing discretion, utilizing the two-step approach” set forth in Gall v. United States, 552 U.S. 38 (2007). Id. at 1154-55 (citing Gall for proposition that appellate review of criminal defendant‘s sentence has two steps, procedural error and substantive reasonableness). We rejected this argument in Mannie, because we reasoned that defendants who bring First Step Act motions have already “had the opportunity to challenge the district court‘s sentencing decisions on direct appeal.” Id. at 1155. Thus, we concluded, “upon review of a sentence-modification proceeding, this court reviews not the propriety of the sentence itself, but the propriety of the district court‘s grant or denial of the motion to reduce the sentence.” Id.
The government seizes on our rejection of the defendant‘s argument that Gall‘s two-step process should apply when we review First Step Act motions, insisting that it conflicts with Brown‘s direction that a district court confronting a First Step Act motion must first calculate a defendant‘s correct Guidelines range. But the government reads too much into this discussion. Gall‘s two-step process involves more than ensuring that the Guidelines were correctly calculated—indeed, the second step of that process includes a review for substantive reasonableness of the sentence as a whole, which has little to do with the underlying Guidelines calculations. See Gall, 552 U.S. at 51. So our rejection of that two-step process for First Step Act motions does not carry an implicit rejection of the notion that a district court faced with a First Step Act motion must first calculate a defendant‘s correct Guidelines range. Simply put, we did not hold in Mannie that district courts are free to eschew the Guidelines calculation in the First Step Act context. We merely found that our review under the First Step Act is limited to the district court‘s disposition of the First Step Act motion. See Mannie, 971 F.3d at 1155. Thus, we see no conflict between this discussion in Mannie and our instruction in Brown that a district court must begin with the correct Guidelines calculation.
As further evidence of conflict, the government highlights Mannie‘s comment that the district court is not required to examine the § 3553(a) factors when deciding a First Step Act motion. See 971 F.3d at 1158 n.18. According to the government, Mannie‘s comment conflicts with Brown‘s instruction to calculate the correct Guidelines
Next, in a letter of supplemental authority, the government contends that our recent decision in Warren supports its position that the district court did not err by “declining to decide the appropriate Guidelines range.” Aplee. Rule 28(j) Letter, Jan. 7, 2022. Warren involved, in part, the defendant‘s argument (advanced for the first time in a motion for reconsideration) that the sentencing court had improperly designated him as a career offender, thus inflating his Guidelines range. 22 F.4th at 921. But rather than definitively deciding the career-offender question, the district court assumed that the defendant was not a career offender and proceeded to deny relief on other grounds. Id. at 929-30. The defendant argued on appeal that the “district court was required to conduct an independent sentencing analysis anchored in his proffered Guidelines range—without the career[-]offender designation.” Id. at 929. Under these facts, we found no error, reasoning that “[a]lthough the district court did not explicitly grapple with the precise Guidelines range proffered by [the defendant], it implicitly accepted that Guidelines range by performing its analysis based on the assumption the career[-]offender classification did not apply.” Id. at 929-30. We also distinguished these facts from the facts in Crooks, explaining that there, by contrast, “the district court refused to consider the career offender issue entirely.” Id. at 930 (emphasis added).
Contrary to the government‘s argument, this case is more like Crooks than Warren. Here, unlike in Warren, the district court did not assume that Burris‘s proffered revised Guidelines range was correct. See 22 F.4th at 929-30. Instead, as in Crooks, the district did not calculate Burris‘s revised Guidelines range. See 997 F.3d at 1278. We also observe that the procedural posture in Warren was different—there, the defendant raised his Guidelines argument for the first time in a motion for reconsideration. See 22 F.4th at 921. Thus, the government‘s reliance on Warren is misplaced.
In sum, although we recognize that the district court lacked the benefit of our subsequent decisions, we conclude that it erred by failing to calculate Burris‘s correct Guidelines range prior to exercising its discretion. See Pelt v. Utah, 539 F.3d 1271, 1282 (10th Cir. 2008) (“Where a change of law occurs while a case is on appeal, we apply the law in effect at the time of our decision.“).
The government argues that even if the district court erred, any error was harmless. In the sentencing context, an error is harmless if it “did not affect the district court‘s selection of the sentence imposed.” United States v. Montgomery, 439 F.3d 1260, 1263 (10th Cir. 2006) (quoting United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005)). As the beneficiary of the error, the government bears the burden of proving harmlessness by a preponderance of the evidence. United States v. Sanchez-Leon, 764 F.3d 1248, 1262-63 (10th Cir. 2014).
We have not directly addressed whether failing to calculate the Guidelines range when ruling on a First Step Act motion is harmless error, but we are persuaded by the Seventh Circuit‘s reasoning in a factually similar case. In Blake, like here, the district court “sidestepped the parties’ dispute about the quantity of drugs attributable to [the defendant] for sentencing purposes and thus never calculated the retroactively lowered range under the [Guidelines].” 22 F.4th at 639. Then, like here, the district court “proceeded directly to assessing whether, as a matter of its discretion, [the defendant] deserved a reduced sentence.” Id. at 640. The Seventh Circuit found error, as we have, explaining that when faced with a difficult Guidelines calculation, courts cannot bypass the calculation and proceed directly to the
Yet here, the government contends that any error was harmless because the district court “looked at both proposed [G]uidelines ranges and concluded that it would deny the motion under either [G]uidelines range.” Aplee. Br. 11. True, the district court stated it would deny relief “whatever the[] result” of the correct Guidelines calculation. R. vol. 1, 1663. But “[o]ur court has rejected the notion that district courts can insulate sentencing decisions from review by making such statements.” United States v. Gieswein, 887 F.3d 1054, 1062-63 (10th Cir. 2018). For example, we have found a district court‘s alternative holding that “the same sentence would be imposed even if the advisory [Guidelines] range was determined to be improperly calculated” insufficient to establish that a procedural error in calculating a defendant‘s Guidelines range was harmless. United States v. Peña-Hermosillo, 522 F.3d 1108, 1117 (10th Cir. 2008) (quoting R. 70). We explained that “it is hard . . . to imagine a case where it would be procedurally reasonable for a district court to announce that the same sentence would apply even if correct [G]uidelines calculations are so substantially different, without cogent explanation.” Id.; see also Gieswein, 887 F.3d at 1062 (giving “little weight to the district court‘s statement that its conclusion would be the same ‘even if all of the defendant‘s objections to the presentence report had been successful‘“).
At the same time, procedural error can be harmless in certain “exceptional instances.” Gieswein, 887 F.3d at 1061. Gieswein was one such “rare” case because the district court had offered a “thorough” and “cogent” explanation for the imposed sentence. Id. at 1061, 1063. In finding that particular error harmless, though, we
Here, we agree with the Seventh Circuit that the district court‘s error, by its very nature, was not harmless; the district court‘s exercise of discretion was untethered from the correct calculation of Burris‘s revised Guidelines range. See Blake, 22 F.4th at 642-43. Moreover, the district court‘s reasoning that it would deny relief regardless of the correct Guidelines calculation does not overcome this conclusion. The district court‘s explanation that Burris‘s original sentence was appropriate under the
Conclusion
Under the First Step Act, a district court must begin with a correct calculation of the revised Guidelines range prior to deciding, in its discretion, whether to reduce a defendant‘s sentence. The district court erred by failing do so here. Further, we are not persuaded, on this record, that the error was harmless. We therefore reverse the district court‘s order denying Burris‘s First Step Act motion and remand for further proceedings consistent with this opinion.
MORITZ
CIRCUIT JUDGE