UNITED STATES OF AMERICA, APPELLEE v. MICHAEL PALMER, ALSO KNOWN AS TONY, ALSO KNOWN AS KNOT, ALSO KNOWN AS JAMES, APPELLANT
No. 20-3058
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 28, 2022 Decided June 3, 2022
Consolidated with 20-3060
Appeals from the United States District Court for the District of Columbia (No. 1:89-cr-00036-1)
Jonathan Zucker, appointed by the court, argued the cause and filed the briefs for appellant.
Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Chrisellen R. Kolb, Nicholas P. Coleman, and Timothy R. Cahill, Assistant U.S. Attorneys. Mark Hobel, Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON and JACKSON*, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
I. BACKGROUND
A. STATUTORY BACKGROUND
As modified by the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, § 1253, 100 Stat. 3207, 3207-14 to 3207-15 (codified as amended at
* Circuit Judge Jackson was a member of the panel at the time the case was argued but did not participate in this opinion.
Although the original
Elsewhere in the Anti-Drug Abuse Act of 1986, the Congress established a quantity-based sentencing regime that punished crack cocaine offenses 100 times more harshly than powder cocaine offenses. See § 1002, 100 Stat. at 3207-2 to 3207-4 (codified at
Over the next two decades, the United States Sentencing Commission (USSC or Commission) “and others in the law enforcement community strongly criticized [the] Congress’ decision to set the crack-to-powder mandatory minimum ratio at 100-to-1.” Dorsey, 567 U.S. at 268. “[A]lthough the Commission thought that it was reasonable to conclude that ‘crack cocaine poses greater harms to society than does powder cocaine,‘” Terry v. United States, 141 S. Ct. 1858, 1861 (2021) (quoting USSC, Special Report to the Congress: Cocaine and Federal Sentencing Policy 195-97 (Feb. 1995) (1995 Report)),
the Commission determined that the 100-to-1 disparity was too large because, inter alia, it overstated the comparative harms of crack and powder cocaine, defeated the “proportionality’ goal” of punishing prolific drug traffickers more severely than retail-level dealers and created a perception that the sentencing regime was race-based because those convicted of crack cocaine offenses were disproportionately black, Dorsey, 567 U.S. at 268-69 (citing Kimbrough v. United States, 552 U.S. 85, 97-98 (2007); 1995 Report at 197-98; USSC, Special Report to Congress: Cocaine and
In the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, the Congress responded to the Commission‘s call for reform and reduced the crack-to-powder disparity to 18-to-1. Terry, 141 S. Ct. at 1861. To narrow the gap, section 2 of the Fair Sentencing Act left the powder quantities the same and increased the crack cocaine quantity thresholds that triggered mandatory minimums. § 2(a), 124 Stat. at 2372. In relevant part, the triggering quantity increased from 5 grams to 28 grams. Id. § 2(a)(2), 124 Stat. at 2372. The Fair Sentencing Act therefore increased the threshold to trigger a mandatory life sentence under the Super CCE provision from 1,500 grams to 8,400 grams (300 times 28 grams). “These changes did not apply to those who had been sentenced before 2010.” Terry, 141 S. Ct. at 1861.
Enter the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The First Step Act made the Fair Sentencing Act‘s quantity changes retroactive and gives the court the discretion to reduce the sentences of certain crack cocaine offenders. See First Step Act § 404, 132 Stat. at 5222; Terry, 141 S. Ct. at 1862. Under section 404 of the First Step Act, a defendant who committed a “covered offense” may move for 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.” § 404(b), 132 Stat. at 5222. A “covered offense’ 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” the enactment of the Fair Sentencing Act in 2010. See id. § 404(a), 132 Stat. at 5222.
B. FACTUAL AND PROCEDURAL BACKGROUND
In the late 1980s, Michael Palmer ran a large-scale drug conspiracy that sold crack cocaine in Washington, D.C. In 1989, a jury convicted him on twelve counts, including, significantly, running a CCE “involving more than 1500 grams” of crack cocaine and thus triggering the Super CCE provision. United States v. Harris, 959 F.2d 246, 253 (D.C. Cir. 1992) (per curiam). After sentencing Palmer to the statutorily required mandatory minimum—life without the possibility of parole,
more important than punishment is . . . deterrence. Deterrence means sending a message to others. The message is this: if you bring large amounts of drugs into the District of Columbia for sale, and particularly if it‘s operated with weapons and with violence, you will go to the penitentiary for a long time, perhaps for life.
Tr. of Harris Sentencing, at 4. The sentencing judge also remarked, “In the 25 years . . . that I have been on the bench, I have seldom, if ever, seen a case in which the evidence was as overwhelming as it
We affirmed Palmer‘s convictions on direct appeal, Harris, 959 F.2d at 252-57, and over the last twenty years, Palmer has pressed numerous claims seeking relief under
On September 28, 2018, Palmer filed a pro se section 2255 petition, which his counsel supplemented on August 11, 2019. In an unpublished order on July 2, 2020, the district court denied the supplemented motion, concluding that Palmer‘s section 2255 petition was successive under
On January 19, 2020, while his section 2255 petition was pending, Palmer filed the primary motion at issue here: a pro se motion for a reduced sentence pursuant to section 404 of the First Step Act. Having served more than thirty years by then, Palmer challenged only the life sentence associated with the Super CCE conviction. In his motion, Palmer first argued that he was eligible for relief because the change in the drug quantity associated with
On the same day it issued the section 2255 order, the district court denied Palmer‘s First Step Act motion. Id. at 138-49 (First Step Act Order). The district court first determined that Palmer was not eligible for First Step Act relief because the relevant drug quantity for eligibility is “the actual quantity the defendant is held responsible for at sentencing,” not the drug quantity in the statute of conviction. Id. at 142-46. After noting the large quantities of drugs attributable to Palmer‘s operation, the district court concluded that the Congress “did not intend to sweep in defendants who were still above the increased mandatory minimum quantity threshold.” Id. at 146. In the alternative, the district court concluded that “[e]ven if Palmer were eligible under the First Step Act . . . the Court would not in its discretion grant his motion for a reduced sentence.”
Palmer is not the type of offender contemplated by either the Fair Sentencing Act or the First Step Act. The Fair Sentencing Act sought to reduce sentencing disparities between crack and powder cocaine defendants by reforming the sentencing regimes applicable to crack cocaine defendants. Section 404 of the First Step Act merely authorized the retroactive application of the Fair Sentencing Act. Palmer faces no disparity between the mandatory minimum he was sentenced under and the one he would have faced “if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time.” 132 Stat. 5194 § 404(b).
Id. (ellipsis in original).
The court then concluded that the section 3553(a) factors did not militate in favor of a sentence reduction. After highlighting two of the factors—(1) the nature of the offense and the characteristics of the defendant and (2) the need for the sentence because of the seriousness of the offense—the court noted Palmer‘s disciplinary sanctions during his incarceration and the sentencing judge‘s comments regarding the breadth of the Palmer operation and its effect on the community. Finally, the court commented that it had “carefully considered the impressive supportive letters . . . from Palmer‘s family and friends” but that the seriousness of Palmer‘s crimes meant that “a sentence reduction [was] not warranted.” Id. at 148.
In letters sent to the district court on August 12 and 13, 2020, Palmer, acting pro se, wrote that he wanted to appeal the district court‘s orders denying his First Step Act motion and section 2255 petition. Id. at 161-64, 167-74. Palmer filed that letter pro se because his counsel had passed away on August 3, 2020, after having filed Palmer‘s requested certificate of appealability on July 31. In his August 12 letter, Palmer stated that he learned of his counsel‘s death on August 7. In a September 3, 2020 order, the district court concluded that the letters “provide adequate notice that [Palmer] intends to appeal under the motion his counsel filed on July 31, 2020, which the Court will therefore consider a Notice of Appeal.” Order, United States v. Palmer, Cr. No. 89-36 (D.D.C. Sept. 3, 2020), ECF No. 510.
II. ANALYSIS
A. FIRST STEP ACT ORDER
We have appellate jurisdiction of the First Step Act Order under
Palmer first argues, and the government concedes, that in light of White, the district court incorrectly concluded that Palmer is ineligible for First Step Act relief. The government argues, however, that remand is inappropriate because Palmer‘s notice of appeal was untimely and because we can rely on the district court‘s alternative holding—that even if Palmer is eligible, the court would not exercise its discretion to grant relief. See App. 147-48. We disagree. We conclude that the court granted—by implication if not expressly—an extension to file the notice of appeal and because it is unclear whether the district court‘s exercise of discretion started from the correct mandatory minimum post-White, we remand for clarification. See Chavez-Meza v. United States, 138 S. Ct. 1959, 1965 (2018) (“If the court of appeals considers a[] [sentencing] explanation inadequate in a particular case, it can send the case back to the district court for a more complete explanation.“).
1. Timeliness of Notice of Appeal
Under Federal Rule of Appellate Procedure 4(b)(1)(A), the government asserts, Palmer‘s pro se notice of appeal is untimely because it was due 14 days after the district court entered the First Step Act Order on July 2, 2020. It was not placed in the prison mail system until August 12, 2020—41 days after the entry of the order. The government contends that Palmer “has offered no justification for his failure to note an appeal on or before July 16, 2020,” and that we should dismiss his challenge. In rebuttal, Palmer‘s appellate counsel acknowledges that the notice arrived well after the 14-day deadline but asserts that the notice was nevertheless timely because the district court implicitly granted a 30-day extension until August 16 under Rule 4(b)(4) when it treated the August 12 letter as a notice of appeal and ordered its filing.
We have previously “declined [an appellant‘s] invitation to equate the ministerial act of docketing a tardy notice of appeal with an implicit grant of an extension of time by the district court.” United States v. Long, 905 F.2d 1572, 1574 (D.C. Cir. 1990). In Long, a defendant-appellant also filed a notice after the Rule 4(b) deadline and the district court docketed the notice. Id. at 1574. Writing for the court, then-Judge Thomas reasoned: “Docketing a notice of appeal is a clerical task, and does not require the approbation of the trial judge. It thus presents no occasion for a party to make a showing of excusable neglect.” Id. It was therefore important that there was no evidence the district judge saw the notice or had an opportunity to determine whether there was excusable neglect. We remanded to the district court for it to determine whether excusable neglect existed. Id. at 1575.
We noted in Long, however, that “there may be cases in which an implicit finding of excusable neglect would be less of a fiction.” Id. at 1574 n.2. For example, if “a trial judge takes some explicit action with respect to a tardy appeal, the judge at a minimum is aware of the appeal; under these circumstances, his action could arguably be construed as an implicit finding of excusable neglect.” Id. The September 3, 2020 order shows that the district judge was “at a minimum aware of the appeal“: he noted the denial of Palmer‘s section 2255 and First Step Act motions, indicated that he had read Palmer‘s handwritten letters by noting that they “provide[d] adequate notice that he intend[ed] to appeal” and mentioned the death of Palmer‘s counsel on August 3. Order, United States v. Palmer, Cr. No. 89-36 (D.D.C. Sept. 3, 2020), ECF No. 510. The district judge also ordered the docketing of the letters and affixed his signature to those orders. In addition, Palmer expressed his desire to appeal on page five of one letter and across two pages of another. At bottom, the order and letters manifest the district judge‘s analysis and awareness of Palmer‘s situation—
including that Palmer was in lockdown beginning in February 2020 due to the coronavirus pandemic—neither of which existed in Long. Indeed, the district judge‘s confirmation that the letters provided “adequate notice” evinces a level of
2. Merits
Decided five months after the district court issued its First Step Act Order, White provides our Circuit‘s framework to evaluate First Step Act motions. See 984 F.3d at 85-93. First, under section 404(a), the court must determine whether a defendant is eligible for relief—that is, whether the movant committed a “covered offense,” defined as “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. In White, the district court had determined that even though the appellant-defendants were “eligible” for relief, relief was “not ‘available‘” because, “[according to] judge-found drug quantities,” the statutory penalties for certain counts were not modified by section 2 of the Fair Sentencing Act. 984 F.3d at 92. We reversed, holding that there is no “availability test” and that in assessing eligibility, the district court “cannot determine, using judge- or jury-found drug quantities, what effect the Fair Sentencing Act ‘would have had’ on a defendant‘s sentence.” Id. at 86-87.
As occurred in White, the district court here used judge-found drug quantities to determine that Palmer was not eligible for section 404 relief. As described above, supra at 6, section
2(a) of the Fair Sentencing Act increased the threshold quantity in
Second, under section 404(b), a “court that imposed a sentence for a covered offense may . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.” First Step Act § 404(b), 132 Stat. at 5222. Put simply, once a defendant is considered eligible, the district court exercises its “broad discretion” to decide “whether it should reduce the sentence.” White, 984 F.3d at 88 (quoting United States v. Hudson, 967 F.3d 605, 610 (7th Cir. 2020)); see also First Step Act § 404(c) (“Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.“), 132 Stat. at 5222.
White also spells out what considerations are relevant in assessing whether to grant a sentence reduction. Relying on Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), we began
by noting the remedial purpose of the First Step Act, including that it and the Fair Sentencing Act “are strong remedial
the district court‘s sentence reduction decision “must be procedurally reasonable and supported by a sufficiently compelling justification.” Id. at 91 (quoting Boulding, 960 F.3d at 784); see also United States v. Collington, 995 F.3d 347, 359 (4th Cir. 2021) (adopting reasonableness review).
Palmer challenges the district court‘s treatment of the “relevant factors.” Primarily, he argues that the district court erred by using the wrong statutory minimum sentence in deciding whether to grant relief. Once again, White is instructive. In determining the “new statutory minimum” penalty that sets the lower bound of the district court‘s discretion “to impose a sentence ‘as if section 2 . . . of the Fair Sentencing Act [was] in effect,’ the court must use the revised penalty range now applicable to the drug amount in the original statute of conviction.” White, 984 F.3d at 86.
For spearheading a crack cocaine network, a jury convicted Palmer of the Super CCE offense, a statute of conviction originally involving at least 1,500 grams of crack cocaine. Plainly, that amount is smaller than the 8,400 grams necessary to trigger the Super CCE threshold under section 2(a) of the Fair Sentencing Act. 124 Stat. at 2372. The 1,500-gram amount, however, nonetheless qualifies for the
At the end of the key paragraph addressing the mandatory minima, the district court stated that “Palmer faces no disparity between the mandatory minimum he was sentenced under and the one he would have faced ‘if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time.‘” App. 147. But there should be a disparity; Palmer was sentenced under the Super CCE statute and received the mandatory life sentence that he is currently serving, rather than the twenty-year mandatory minimum he would have faced using the drug quantity in the statute of conviction, as mandated by White. It is therefore unclear if the district court correctly applied “the legal requirements governing review of motions for reduced sentences under section 404(b) of the First Step Act.” White, 984 F.3d at 92.4
We recognize that the district court may have used the judge- or jury-found drug quantities attributable to Palmer‘s CCE to conclude that he exceeded the 8,400-gram threshold and therefore would have received a life sentence even under the higher threshold. Cf. id. at 88 (“The court may consider
both judge-found and jury-found drug quantities as part of its exercise of discretion.“). Indeed, it is possible that the district court implicitly recognized the twenty-year mandatory minimum by initially acknowledging earlier in the paragraph its discretion to lower Palmer‘s sentence from life without parole. But such an inference conflicts with the court‘s later statement that there is “no disparity” because the mandatory minimum is life. Given the anchoring effect of using the incorrect mandatory minimum sentence, see id. at 87, and the importance of mandatory minima to sentencing, see Alleyne v. United States, 570 U.S. 99, 112-13 (2013), we remand for the district court to clarify the “new [mandatory] minimum penalt[y],” White, 984 F.3d at 90 (quoting Hudson, 967 F.3d at 609); see also United States v. Graham, 317 F.3d 262, 275 (D.C. Cir. 2003) (remanding when district court “may have applied” incorrect mandatory minimum); United States v. McKeever, 824 F.3d 1113, 1125 (D.C. Cir. 2016) (remanding for clarification because record was unclear and “law was in flux” and noting “we will not search for error when” remand “will better serve the ends of justice“).5
As for the remainder of the district court‘s analysis, the district court
considered two of the section 3553(a) factors, App. 147-48, which are “especially important” in “complex[]” cases like this one, see White, 984 F.3d at 90-91. Although “there is no requirement that sentencing courts expressly list or discuss every Section 3553(a) factor,” United States v. Knight, 824 F.3d 1105, 1110 (D.C. Cir. 2016), “express acknowledgment of” the relevant factors and “mitigation arguments is of course helpful and encouraged,” see United States v. Pyles, 862 F.3d 82, 94 (D.C. Cir. 2017), especially if there is no record of a hearing on the First Step Act motion for relief.6 Because the district court ruled without the benefit of White and because the “new statutory minimum” frames the district court‘s exercise of discretion, cf. Molina-Martinez v. United States, 578 U.S. 189, 198-99 (2016) (detailing anchoring effect Federal Sentencing Guidelines have on “district court‘s discretion” (citation omitted)), we do not opine on the adequacy of its consideration of “relevant factors” other than the “new statutory minimum.”7
B. SECTION 2255 ORDER
The district court concluded that it lacked jurisdiction of Palmer‘s section 2255 petition because it was a “second or successive motion” under
For the foregoing reasons, we reverse the district court‘s judgment, remand for further proceedings consistent with this opinion and hold the section 2255 appeal in abeyance.
So ordered.
Notes
(a) Penalties; forfeitures
Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment, to a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $2,000,000 if the defendant is an individual . . . , and to the forfeiture prescribed in section 853 of this title.
(b) Life imprisonment for engaging in continuing criminal enterprise
Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a) of this section, if—
(1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such principal administrators, organizers, or leaders; and
(2) (A) the violation referred to in [subsection (c)(1)] of this section involved at least 300 times the quantity of a substance described in subsection 841(b)(1)(B) of this title . . . .
(c) “Continuing criminal enterprise” defined
For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if—
(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter—
(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and
(B) from which such person obtains substantial income or resources.