UNITED STATES OF AMERICA, APPELLEE v. MELVIN LAWRENCE, APPELLANT
No. 20-3061
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 10, 2021 Decided June 15, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:03-cr-00092-1)
William L. Welch, III, appointed by the court, argued the cause and filed the briefs for appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the cause for
Before: ROGERS, MILLETT, and WILKINS, Circuit Judges.
Opinion for the Court by Circuit Judge MILLETT.
MILLETT, Circuit Judge: In 2009, the district court sentenced Melvin Lawrence to nearly 21 years in prison for selling 21.1 grams of crack cocaine. In 2018, Congress enacted the First Step Act,
The sole and narrow question presented in this appeal is whether the law mandated that the district court provide Lawrence the opportunity to allocute—to speak in person to the district court judge—before ruling on his motion for a sentence reduction. Because no categorical right to allocute applies to motions to reduce a sentence under the First Step Act, we affirm the judgment of the district court.
I
For nearly 25 years, federal criminal law punished offenses involving crack cocaine far more harshly than offenses involving powder cocaine. See Anti-Drug Abuse Act of 1986,
After two decades of criticism, see Dorsey, 567 U.S. at 268, Congress reduced, but did not eliminate, the crack-to-powder disparity in the Fair Sentencing Act of 2010,
Eight years went by before Congress turned to the defendants left serving sentences imposed under the disparately more punitive sentencing regime. In Section 404 of the First Step Act, Congress empowered district courts to reduce existing sentences for people convicted of certain crack cocaine offenses. See First Step Act § 404, 132 Stat. at 5222;
First, Section 404 applies to a “covered offense[,]” which means “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.” First Step Act § 404(a), 132 Stat. at 5222 (internal citation omitted).
Second, Section 404 provides that the original sentencing court “may,” on motion of the defendant, the government, or the court itself, “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.” First Step Act § 404(b), 132 Stat. at 5222 (internal citation omitted). In that way, Section 404 authorizes courts to apply the Fair Sentencing Act‘s crack-cocaine reforms retroactively. See White, 984 F.3d at 82.
Third, Section 404 sets out certain “[l]imitations” on the relief available. First Step Act § 404(c), 132 Stat. at 5222. Courts may not entertain motions under Section 404 if the “sentence was previously imposed or previously reduced in accordance with” the Fair Sentencing Act. Id. Courts also may not entertain renewed motions under Section 404 if a previous Section 404 motion was “denied after a complete review of the motion on the merits.” Id. And finally, “[n]othing in [Section 404] shall be construed to require a court to reduce any sentence pursuant to [Section 404].” Id.
In short, Section 404 creates a process through which defendants sentenced for a qualifying offense under the prior, disparate sentencing regime may seek a sentence reduction, which the district court may grant in its discretion.
The district court‘s discretion in adjudicating a Section 404 motion is “broad” but not “unfettered[.]” White, 984 F.3d at 88. The district court‘s judgment “must take account of Congress‘s intent to rectify disproportionate and racially disparate sentencing penalties.” Id. at 81. To that end, the district court must consider “all relevant factors[,]” id. at 93, including
II
This is Melvin Lawrence‘s third appearance before this court.
A
In 2003, Lawrence was convicted of unlawful distribution of 5 grams or more of cocaine base (crack cocaine) in violation of
On remand, the district court held a new sentencing hearing, in which Lawrence allocuted. Resentencing Transcript at 11–12, United States v. Lawrence, No. 03-cr-00092-CKK (D.D.C. Oct. 5, 2009), ECF No. 103. Lawrence told the court that, while incarcerated, he had “been trying to do the right things as far as * * * becoming a man so I can provide for my son, he‘s 11 and very big.” Id. Lawrence‘s mother was “getting old” and does “the best that she can[,]” but his son had “health issues as far as * * * weight gain and a lot of other things.” Id. at 12. Lawrence explained that he “just want[ed] a chance to be a father” to his son, and that he “was just hoping that it‘s possible that * * * I can get out in his life before * * * the streets * * * or anything that maybe I have done affect him[.]” Id. He said he wanted to “be a productive citizen[,]” and noted that he “read the Bible” and “attended church, school, [and] college.” Id. He admitted that he had “gotten into some altercations,” but “not because I wanted to, but it‘s prison, and you know, there‘s all types of people in prison.” Id. While “making no excuses” for his actions, he said he “was just hoping the Court would have leniency” in his “particular case.” Id.
Based on the single crack cocaine distribution conviction and the district court finding that Lawrence was a career offender, Lawrence‘s Sentencing Guidelines range was 262 to 327 months. In addition, because Lawrence‘s offense involved 21.1 grams of crack, Lawrence was subject to a mandatory minimum prison term of five years (60 months) and a statutory maximum of 40 years (480 months). See
We affirmed Lawrence‘s sentence in 2011. United States v. Lawrence, 662 F.3d 551, 564 (D.C. Cir. 2011).
In 2019, following the passage of the First Step Act, Lawrence filed a pro se motion in district court requesting that his sentence be reduced to time served, which at that time was 209 months—more than seventeen years. The district court appointed counsel for Lawrence, and counsel filed a supplemental motion explaining that, in light of the Fair Sentencing Act‘s amended sentencing ranges, Lawrence‘s conviction now subjected him only to a 0-to-20-year sentencing range rather than the 5-to-40-year range applied at his original sentencing. See
The government did not oppose a ten-month reduction in Lawrence‘s sentence from 250 months to 240 months because that was necessary to bring the sentence down to the revised statutory maximum of twenty years. See
The district court granted a sentence reduction to 240 months imprisonment and three years of supervised release, but denied any further reduction in Lawrence‘s sentence. It ruled first that no hearing with the defendant present was required, pointing to the Supreme Court‘s decision in Dillon v. United States, 560 U.S. 817 (2010), and
Lawrence timely appealed.
III
We possess appellate jurisdiction under
IV
Lawrence argues that the district court “should have allowed Mr. Lawrence to speak in allocution” and address the court personally before his sentence was imposed. Lawrence Br. 7. This court has not decided whether a district court‘s failure to provide allocution is subject to harmless error review. See United States v. Abney, 957 F.3d 241, 247 (D.C. Cir. 2020) (noting that this court “ha[s] not weighed in on the review framework“). But see also id. at 254 (“Given the importance of the allocution right, there may be few, if any, cases in which its unremedied denial would not undermine the fairness of the judicial process.“). We do not reach that
A
Once a federal criminal sentence is imposed, it is generally considered final. See
This case implicates the second of those three exceptions. In the First Step Act, Congress provided authority for courts to reduce sentences already imposed. So reductions under the Act fall within
B
Allocution is the “right * * * to address the sentencing judge before imposition of a sentence.” Abney, 957 F.3d at 249; see United States v. Roberts, 570 F.2d 999, 1010 (D.C. Cir. 1977). This right is “deeply rooted in our legal tradition[,]” and “serves several interrelated purposes, including eliciting information relevant to mitigation or mercy, demonstrating to the public that the courts treat criminal defendants in an individualized, fair, and openminded manner, and simply acknowledging the defendant‘s humanity.” Abney, 957 F.3d at 250.
The right of allocution before the imposition of a criminal sentence following conviction is now “codified in the
The problem for Lawrence, however, is that
Nothing in
Section 404 of the First Step Act is similarly of no help to Lawrence‘s allocution argument. It says only that courts may reduce sentences for defendants convicted of certain crack offenses “on motion” of the defendant, the government, or the court “as if section 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time the covered offense was committed.” First Step Act § 404(b), 132 Stat. at 5222 (internal citation omitted). Nothing in the text or structure of Section 404, however, categorically requires that district courts provide an opportunity for the defendant to allocute before ruling on such a motion.
That is not to say that district courts do not have weighty obligations in conducting Section 404 proceedings. For starters, the court‘s resolution of the motion for sentence reduction must “take into account Congress‘s purposes” in passing the Fair Sentencing Act and the First Step Act, which “together[] are strong remedial statutes, meant to rectify disproportionate and racially disparate sentencing penalties.” White, 984 F.3d at 89–90. In that regard, district courts must consider “all relevant factors,” including “new statutory minimum or maximum penalties; current Guidelines; post-sentencing conduct; and other relevant information about a defendant‘s history and conduct.” Id. at 90, 93 (quoting Hudson, 967 F.3d at 609). In White, we emphasized the particular relevance of post-sentencing conduct and the sentencing factors listed in
But nothing in those duties includes a categorical requirement that defendants, who presumptively already allocuted at their original sentencing, be afforded the opportunity to allocute again.
On appeal, Lawrence invokes the common law and
The short answer is that
To that same point, the common law and Rule 32 right to address the court in allocution applies “before the sentence is imposed[.]” Abney, 957 F.3d at 250; see
If Lawrence means to equate a Section 404 proceeding with an original sentencing and all of its requirements, he is mistaken. While a Section 404 proceeding is a weighty one, it differs meaningfully from an original sentencing.
Most notably, the district court in a Section 404 proceeding has no authority to increase a defendant‘s sentence. The proceeding will either benefit the defendant or leave him with the same sentence already imposed (and for which he already had the right and opportunity to allocute). First Step Act § 404(b), 132 Stat. at 5222 (district court may impose only “a reduced sentence” or leave the sentence unchanged). So unlike an original sentencing, a Section 404 proceeding cannot result in any additional deprivation of liberty. Instead, by the time of the First Step Act proceeding, “the purpose of allocution—to allow the defendant the opportunity to challenge the information the original sentencing judge will rely upon as well as to present evidence in mitigation—has already been accomplished.” United States v. Jackson, 923 F.2d 1494, 1498 (11th Cir. 1991); see Mannie, 971 F.3d at 1156 (“We do not disagree * * * as to the importance of the defendant‘s right of allocution at his initial sentencing; but this is a sentence modification, not an initial sentencing. There are significant differences between the two.“) (footnote omitted).
In addition, the Supreme Court ruled in Dillon that a similar sentence-reduction proceeding “[b]y its terms * * * does not authorize a sentencing or resentencing proceeding[,]” but instead “provides for the ‘modification of a term of imprisonment’
The exact same rationale applies here. While the district court may “impose” a different sentence in a Section 404 proceeding, First Step Act § 404(b), 132 Stat. at 5222, it does not do so “in the usual sense[,]” Dillon, 560 U.S. at 827. Instead, Section 404 authorizes a special type of post-sentencing proceeding in which the district court must undertake a distinct analysis to determine whether, as a matter of discretion, an already-imposed sentence should be reduced, with an eye towards “provid[ing] a remedy for defendants who bore the brunt of a racially disparate sentencing scheme.” White, 984 F.3d at 91. While the court considers the Section 3553(a) sentencing factors, it does so for that different statutory purpose.
And importantly, for purposes of the issue in this case, nothing in the text of Section 3582(c)(1)(B) meaningfully differentiates it from Section 3582(c)(2)—the provision at issue in Dillon. Section 3582(c)(1)(B) empowers courts to “modify an imposed term of imprisonment,” and Section 3582(c)(2) permits courts to “reduce the term of imprisonment[.]” Neither provision contemplates a complete do-over of the sentencing process with a mandatory new opportunity for allocution.
In sum, nothing in Section 404 of the First Step Act, the sentence modification provision of
D
Of course, even though defendants do not possess a categorical right to allocute as part of a Section 404 proceeding, district courts may choose to allow allocution as an exercise of their reasoned discretion. And nothing in our holding addresses whether, in the circumstances of a particular case, allocution might be warranted or required. That is because Lawrence has not made any as-applied claim of a right to allocute. Nor could his counsel, at oral argument, provide any reason why a new opportunity for allocution would have been uniquely useful or appropriate in this case. See Transcript of Oral Argument at 8–9. The only question in this case is whether an absolute right to allocute exists, and the district court correctly ruled that no such right applies here.
* * * * *
Section 404 of the First Step Act “makes possible the fashioning of the most complete relief possible” to address a serious problem of disproportionate and racially inequitable sentencing law. White, 984 F.3d at 90 (brackets omitted) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975)). “This is no small matter.” White, 984 F.3d at 90. But neither the statute‘s text nor its
For all of the foregoing reasons, we affirm the judgment of the district court.
So ordered.