United States of America v. Rexdual Deneil Robinson
No. 19-50907
United States Court of Appeals, Fifth Circuit
November 13, 2020
United States Court of Appeals
for the Fifth Circuit
No. 19-50907
United States of America,
Plaintiff—Appellee,
versus
Rexdual Deneil Robinson, also known as Rexdual
Robinson, also known as Rexdual Denneil Robinson,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 6:09-cr-00272
Before Graves, Costa, and Engelhardt, Circuit Judges.
Defendant-Appellant, Rexdual Deniel Robinson, appeals the district
court’s denial of his motion for sentence reduction filed pursuant to section
404 of the First Step Act of 2018, Pub. L. 115-391, § 404, 132 Stat. 5194–249
(2018). The First Step Act allows defendants who were convicted and
sentenced for certain offenses involving cocaine base (“crack”), prior to the
effective date of the Fair Sentencing Act of 2010, to be resentenced as if the
reduced statutory minimum penalties implemented by the Fair Sentencing
Act were in place at the time the offenses were committed. On appeal,
Robinson challenges the district court’s refusal to consider the lower, non-
career offender sentencing range that would apply if he were sentenced in
2019, rather than in 2010, in deciding whether to grant his First Step Act
motion for sentence reduction. Finding no abuse of discretion or legal
deficiency in the district court’s ruling, we AFFIRM.
I.
Prior to the 2010 effective date of the Fair Sentencing Act, Rexdual
Robinson
grams of cocaine base within 1,000 feet of a public schoоl, in violation of 21
to a within-guidelines sentence of 210 months imprisonment and an eight-
year term of supervised release. Having received a career offender sentence
enhancement, under § 4B1.1 of the United States Sentencing Guidelines,
Robinson’s total offense level of 31, and criminal history category of VI,
yielded an advisory guidelines range of 188–235 months of imprisonment. On
the government’s motion, filed pursuant to Rule 35 of the Federal Rules of
Criminal Procedure, Robinson’s sentence was reduced from 210 to 180
months.
In 2019, Robinson filed a motion seeking a retroactive sentencing
reduction, pursuant to the First Step Act, contending that he should be
resentenced based on a non-career offender guidelines range of 92–115
months. Robinson argued that he should no longer be sentenced as career
offender because, after United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016),
and United States v. Tanksley, 848 F.3d 347, 352 (5th Cir.), opinion
supplemented, 854 F.3d 284 (5th Cir. 2017), his 1990 Texas conviction for
delivery of cocaine no longer qualified as a predicate drug trafficking offense
for purposes of the U.S.S.G. § 4B1.1 career offender enhancement. Citing
the various sentencing factors sеt forth in 18 U.S.C. § 3553(a), Robinson
argued that a sentence reduction to 108 months was appropriate—because
his post-sentencing conduct demonstrated rehabilitation—and was
necessary to avoid unwarranted sentencing disparities between himself and
persons sentenced as non-career offenders after the 2010 effective date of the
Fair Sentencing Act.
After considering the parties’ written submissions, including a reply
memorandum filed by Robinson, the district court denied the motion in an
nine-page written order. Relative to the issues on apрeal, the district court
stated, in pertinent part:
In the event the Court determines Robinson is eligible
for a reduction, the Government urges the Court to exercise its
discretion and deny a reduction. The Government explains,
given the quantity of cocaine base involved in Robinson’s
violation of the law, coupled with the fact that Robinson is a
career offender, Robinson would have received the same
sentence if the [Fair Sentencing Act] had been in effect at the
time of Robinson’s original sentencing. Conversely, Robinson
argues he is no longer subject to the career offender status he
was given due to changes in the law since the time of his original
sentencing. Mot. at 1; Reply at 24–25.
First, Robinson’s argument that he is not a career
offender under the current sentencing guidelines is misplaced.
This argument was addressed by the Fifth Circuit in United
States v. Hegwood, 934 F.3d 414 (5th Cir. 2019) (rejecting
defendant’s contention that the district court erred in refusing
to apply Fifth Circuit precedent from 2017 to remove his career
offender enhancement imposed in 2008). The defendant [in
Hegwood] argued that after Tanksley, he no longer qualified for
the career-offender enhancement (as does Robinson here). Id.
at 416. The district court left the career-offender enhancement
in place, holding it was “going to resentence [Hegwood] on the
congressional change and that alone.” Id. The Fifth Circuit
affirmed the holding of the district court.
. . .
In determining whether to reduce Robinson’s sentence,
the Court considers
and all relevant post-conviction conduct, in order to impose a
new sentence under the First Step Act that is sufficient but not
greater than necessary. See Pepper v. United States, 562 U.S.
476, 480 (2011). Robinson’s post-incarceration conduct is
admirable, as he has not received any disciplinary infractions.
[] Additionally, he has successfully worked in Tray Transport
at the facility to which he has been assigned, and he has
completed several educational courses. []
However, the Court will not exercise its discretion in
this case. See First Step Act § 404(c) (stating “nothing in this
section shall be construed to require a court to reduce any
sentence pursuant to this section). . . . First, Robinson’s
current sentence remains within the applicable statutory range.
Even after the application of the Fair Sentencing Act, Robinson
is still subject to a statutory maximum of 40 years
imprisonment. Additionally, Robinson’s current sentence of
180 months is below the guideline range of 188 to 235 months
imprisonment (the relevant guidelines at the time of his
sentencing) and it is within the new guideline range of 151 to
188 months imprisonment. Thus, the Court believes
Robinson’s sentence remains appropriate in this case.
Secondly, Robinson still remains subject to his career
offender status, as previously discussed. Moreover,
Robinson’s conviction under 21 U.S.C. § 860(a) is particularly
relevant in evaluating whether the Court should exercise its
discretion. Section 860(a) doubles the penalty ranges for
violations of 21 U.S.C. § 841(b) because a violation of section
860(a) involves possession or distribution of drugs within
1,000 feet of a school. Thus, the Court believes that a denial of
Robinson’s sentence is appropriate in light of section
3553(a)(2). See 18 U.S.C. § 3553(a)(2) (the court shall consider
“the need for the sentence imposed to reflect the seriousness
of the offense, to promote respect for the law, and to provide
just punishment”).
Finally, the Court agrees with the Government that
“Robinson’s original sentence was imposed largely due to his
extensive criminal history.” [] Robinson’s extensive record
resulted in 15 criminal history points. [] He received 15 points
even though no criminal history points were assigned for one
felony drug conviction. [] Additionally, his criminal history
reflects that Robinson distributed cocaine at least six times and
possessed a significant amount of crаck cocaine, not including
his arrest for the instant case. PSR ¶¶ 30–32. Therefore, the
Court finds that Robinson’s criminal history and lack of respect
for the law heavily weigh against granting a reduction in his
sentence.
. . .
Having considered 18 U.S.C. § 3553(a); the United
States Sentencing Guidelines in an advisory capacity; and the
Guidelines Policy Statements pursuant to the Sentencing
Reform Act, the Court finds that a sentence reduction is not
appropriate in Robinson’s case. . . .
See September 30, 2019 Order. This appeal followed.
II.
The district court’s discretionary decision whether to reduce a
sentence pursuant to the First Step Act is generally reviewed for an abuse of
discretion. United States v. Stewart, 964 F.3d 433, 435 (5th Cir. 2020); United
States v. Jackson, 945 F.3d 315, 319 & n.2 (5th Cir. 2019), cert. denied, 140 S.
Ct. 2699 (2020).
action amounted to an . . . abuse of discretion.” United States v. Garcia, 693
F.2d 412, 415 (5th Cir. 1982). “A court abuses its discretion when the court
makes an error of law or bases its decision on a clearly erroneous assessment
of the evidence.” United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011)
(internal quotation marks and citation omitted). “[T]o the extent the court’s
determination turns on the meaning of a federal statute such as the [First
Step Act],” de novo review applies. Jackson, 945 F.3d at 319 (internal
quotation marks and citation omitted).
III.
The First Step Act of 2018 was enacted to remedy a gap left open by
the Fair Sentencing Act of 2010 and various amendments to the United
States Sentencing Guidelines relative to sentences imposed for certain crack
offenses. In 2010, Congress enacted the Fair Sentencing Act in order tо,
among other things, reduce the disparity in treatment of crack and powder
cocaine offenses by increasing the threshold quantities of crack required to
trigger the mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)
and (B). See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat.
2372 (2010). Specifically, section 2 of the Fair Sentencing Act “increased
the drug amounts triggering mandatory minimums for crack trafficking
offenses from 5 grams to 28 grams in respect to the 5-year minimum and from
50 grams to 280 grams in respect to the 10-year minimum.” Dorsey v. United
States, 567 U.S. 260, 269 (2012). In effect, section 2 “reduc[ed] the crack-
to-powder cocaine disparity from 100–to–1 to 18–to–1.” Id. at 264. Section
3 of the Fair Sentencing Act “eliminаted a mandatory minimum sentence for
simple possession of cocaine base.” United States v. Hegwood, 934 F.3d 414,
418 (5th Cir.), cert. denied, 140 S. Ct. 285 (2019). The Fair Sentencing Act
additionally instructed the Sentencing Commission to “make such
conforming amendments to the Federal [S]entencing [G]uidelines as the
Commission determines necessary to achieve consistency with other
guideline provisions and applicable law.” Pub. L. No. 111-220, § 8(2), 124
Stat. at 2374.
Importantly, the Fair Sentencing Act’s statutory changes were not
retroactive. Jackson, 945 F.3d at 318. As a result, sentence modifications
based on Sentencing Guidelines amendments that were implemented
pursuant to the Fair Sentencing Act remained unavailable to (1) persоns
whose sentences were restricted by pre-Fair Sentencing Act statutory
minimums; and (2) persons ineligible under 18 U.S.C. § 3582(c)(2) by virtue
of having been sentenced as career offenders, pursuant to U.S.S.G. §4B1.1,
“based on” higher guideline ranges than the reduced drug quantity guideline
ranges in U.S.S.G. § 2D1.1. See, e.g., Stewart, 964 F.3d at 436 (citing
U.S.S.G. § 1B1.10, cmt. 1); United States v. Quintanilla, 868 F.3d 315, 318
(5th Cir. 2017).
On December 21, 2018, however, the First Step Act of 2018 became
law, introducing a number of criminal justice reforms. Pertinent here, section
404 of the First Step Act concerns retroactive application of the Fair
Sentencing Act of 2010. Pub. L. No. 115-391, § 404(b), 132 Stat. at 5222.1
1 Section 404 of the First Step Act of 2018 provides:
(a) DEFINITION OF COVERED OFFENSE.—In this section, the term
“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 (Public Law
111–220; 124 Stat. 2372), that was committed before August 3, 2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED.—A court that imposed a
sentence for a covered offense may, on motion of the defendant, the Director of the Bureau
of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if
sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372)
were in effect at the time the covered offense was сommitted.
(c) LIMITATIONS.—No court shall entertain a motion made under this
section to reduce a sentence if the sentence was previously imposed or previously reduced
in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act
Specifically, section 404 gives courts
Fair Sentencing Act to reduce a prisoner’s sentence for certain covered
offenses. Hegwood, 934 F.3d at 418 (“It is clear that the First Step Act grants
a district judge limited authority to consider reducing a sentence previously
imposed.”). A defendant is eligible for a sentence reduction under the First
Step Act if: (1) he committеd a “covered offense”; (2) his sentence was not
previously imposed or reduced pursuant to the Fair Sentencing Act; and (3)
he did not previously file a motion under the First Step Act that was denied
on the merits. Id. at 416–17.
A “covered offense” within the meaning of the First Step Act is “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.” Pub. L. 115-391, § 404(a), 132 Stat. 5222.
Whether a defendant has a “covered offense” under section 404(a) depends
on the statute under which he was convicted, rather than facts specific to the
defendant’s violation. Jackson, 945 F.3d at 319–20. Thus, if a defendant was
convicted of violating a statute whose penalties were modified by the Fair
Sentencing Act, that defendant meets that aspect of a “covered offense.” Id.
In terms of procedure, a reduced sentence may be imposed, pursuant
to the First Step Act, upon motion made by a party, the Bureau of Prisons, or
the court. Pub. L. No. 115-391, § 404(b), 132 Stat. at 5222. Nothing in section
404 expressly requires that a hearing be held. Jackson, 945 F.3d at 321. And,
of 2010 (Public Law 111–220; 124 Stat. 2372) or if a previous motion made under this
section to reduce the sentenсe was, after the date of enactment of this Act, denied after a
complete review of the motion on the merits. Nothing in this section shall be construed to
require a court to reduce any sentence pursuant to this section.
Pub. L. No. 115-391, § 404, 132 Stat. at 5222 (emphasis added).
in Jackson, we rejected the defendant’s contention that the district court
abused its discretion by “supposedly failing to conduct a ‘complete review’
of his motion ‘on the merits.’” Id. In contrast to cases in which a procedural
deficiency had occurred, we determined that Jackson had had “his day in
court” where he had “filed a detailed motion explaining why he should get a
new sentence; the government responded; the court denied the motion; and,
on limited remand, it explained why.” Id. at 322.
Eligibility for resentencing under the First Step Act does not equate
to entitlement. Id. at 321. Indeed, the statute expressly states: “Nothing in
this section shall be construed to require a court to reduce any sentence
pursuant to this section.” Pub. L. No. 115-391, § 404(c), 132 Stat. at 5222.
To the contrary, the decision whether to wield the resentencing authority
granted by the First Step Act is one committed to the court’s discretion.
sentencing authority granted to courts. Specifically, section 404 directs: “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 of 2010 . . . were in
effect at the time the covered offense was committed.” Pub. L. No. 115-391,
§ 404(b), 132 Stat. at 5222. Given this statutory directive, “[i]t is clear that
the First Step Act grants a district judge [only] limited аuthority to consider
reducing a sentence previously imposed.” Hegwood, 934 F.3d at 418.
IV.
Since the statute’s enactment in 2018, we, like the other circuit courts,
have been asked to answer various questions regarding the proper
interpretation and application of the First Step Act. These decisions inform
and aid our consideration of the issues presented in this appeal.
A. Other Changes in the Law
In Hegwood, the defendant’s sentence was based in part on a § 4B1.1
enhancement because he was determined to be a career offender due to his
two prior felony controlled-substance offenses. Hegwood, 934 F.3d at 415. In
addition to seeking the benefit of the reduced penalties set forth in the Fair
Sentencing Act via section 404 оf the First Step Act, Hegwood also sought
application of United States v. Tanksley, 848 F.3d 347, 352 (5th Cir.), opinion
supplemented, 854 F.3d 284 (5th Cir. 2017), in which this court held that, in
light of Mathis v. United States, 136 S. Ct. 2243 (2016), a particular Texas
controlled substance offense no longer qualifies as a predicate conviction for
purposes of the § 4B1.1 career offender enhancement. Id. at 416. In support
of his position, Hegwood argued that the use of the word “impose” in the
First Step Act, rather than the word “modify” found in 18 U.S.C. § 3582(c),
along with the limitations referenced in U.S.S.G. §1B1.10(a)(3) for § 3582(c)
modifications, meant that “the First Step Act requires a [Sentencing]
Guidelines calсulation to be made that is correct as of the time of the new
sentence, and Section 3553(a) factors are to be applied anew.” Id. at 417–18.
Section 3553(a)(4) directs that a district court, “in determining the particular
sentence to be imposed, shall consider . . . the kinds of sentence and the
sentencing range established for . . . the applicable category of offense
committed by the applicable category of defendant as set forth in the
guidelines.” 18 U.S.C. § 3553(a)(4).
Rejecting Hegwood’s argument, we reasoned that, under the First
Step Act, “calculations that had earlier been made under the Sentencing
Guidelines are adjusted ‘as if’ the lower drug offense sentences were in effect
at the time of the commission of the offense.” Hegwood, 934 F.3d at 418.
“That is the only explicit basis stated for a change in the
sentencing[,][and][i]n statutory construction, the expression of one thing
generally excludes the other.” Id. Accordingly, we concluded:
The express back-dating of Sections 2 and 3 of the Fair
Sentencing Act of 2010—saying the new sentencing will be
conducted “as if” those sections were in effect “at the time the
covered offense was committed”— supports that Congress did
not intend that other changes were to be made as if they too
were in effect at the time of the offense.
Id. (emphasis added). We thus explained the mechanics of the First Step Act
resentencing process as follows:
The district court decides on a new sentence by placing
itself in the time frame оf the original sentencing, altering
relevant legal landscape only by the changes mandated by the
2010 Fair Sentencing Act. The district court’s action is better
understood as imposing, not modifying, a sentence, because
the sentencing is being conducted as if all the conditions for the
original sentencing were again in place with the one exception.
The new sentence conceptually substitutes for the original
sentence, as opposed to modifying that sentence.
Id. at 418–19. On the other hand, like the sentence modification procedure in
§ 3582(c)(2), “which opens the door only slightly for modification of
previously imposed sentences for certain specified reasons,” imposition of a
new sеntence under § 404(b) similarly does not involve a “plenary
resentencing proceeding” and permits “only a limited adjustment.” Id. at
418 (quoting Dillon v. United States, 560 U.S. 817, 826 (2010)). Because of
the district court’s limited role under § 404(b), we held that “[t]he district
court committed no error in continuing to apply the career-criminal
enhancement when deciding on a proper sentence for Hegwood.” Id. at 419.
In reaching this conclusion, we found no conflict between our
interpretation of section 404 of the First Step Act and the provisions of 18
U.S.C. §§ 3582 and 3553. Id. at 418. We reasoned:
The district court under Section 3582(a) is only required to
consider thе Section 3553(a) factors “to the extent that they
are applicable.” The government, relying on the fact that the
First Step Act gives the court discretion whether to reduce a
sentence, argues that the ordinary Section 3553(a)
considerations apply to determine whether to reduce the
defendant’s sentence.
Id.
Earlier this year, in Stewart, we again faced a question concerning the
legal authorities under which a First Step Act motion is to be considered. 964
F.3d at 437. In that case, the parties did not dispute Stewart’s eligibility to
seek a sentencing reduction under the First Step Act. Rather, they disagreed
regarding the version of the Sentencing Guidelines that governed imposition
of his reduced sentence. Citing Hegwood, the government argued Stewart’s
offense level should have been calculated using the 2001 Sentencing
Guidelines (those in effect at the time of his original sentencing), rather than
the less onerous 2018 Sentencing Guidelines, which by virtue of Amendment
750, would yield a lower offense level and resulting sentencing range. We
held that the district court erred in refusing to apply Amendment 750 in
calculating Stewart’s post-First Step Act sentencing range, reasoning that
Amendment 750 is “an alteration of the legal landscape” promulgated
pursuant to the Fair Sentencing Act itself. Stewart, 964 F.3d at 437.
Significantly, Hegwood was distinguished as prohibiting only
consideratiоn of interim change in the law having nothing to do with the Fair
Sentencing Act. Id. at 438. (“Hegwood primarily stands for the proposition
that defendants seeking relief under section 404(b) of the [First Step Act]
cannot take advantage of changes in the law that have nothing to do with [the
Fair Sentencing Act].”) “Unlike the defendant in Hegwood, Stewart [did] not
seek removal of his career offender status at all, let alone based on
intervening, non-FAIR-related caselaw.” Id. “Instead, Stewart invoke[d] a
change in the law that did result from [the Fair Sentencing Act]: Amendment
750’s revision of the marijuana equivalency for crack cocaine.” Id. “Put
differently, Amendment 750 is an alteration to the legal landscape ‘mandated
by [the Fair Sentencing Act]’ and therefore a valid consideration in the
‘mechanics of First Step
Accordingly, although Stewart’s career offender enhancement was not
eliminated by the First Step Act (consistent with the limited legal changes
that Hegwood has determined that the First Step Act authorizes), the Fair
Sentencing Act’s changed statutory minimums and maximums reduced his
corresponding career offendеr offense level (from 37 to 34), pursuant to
U.S.S.G. § 4B.1.1, such that his resulting guidelines range was 262–327
months imprisonment (using the 2018 Sentencing Guidelines), rather than
324–405 months imprisonment (using the 2001 Sentencing Guidelines). Id.
at 436–39.2 Notably, the Stewart panel was careful to emphasize that “we
need not and do not decide whether a district court faced with a resentencing
motion invoking section 404(b) of the [First Step Act] must
apply all retroactive amendments to the Sentencing Guidelines.” Id. at 439.
B. Consideration of Post-Sentencing Conduct
In Jackson, which was decided in the interim between Hegwood and
Stewart, we rejected the assertion that the district court is obligated to
consider the movant’s post-sentencing conduct. 945 F.3d at 322 & n.7. To
explain our ruling, we reiterated Hegwood’s conclusions that, under the First
2 Relatedly, in Hegwood, we affirmed the district court’s two-point reduction of
Hegwood’s career offender offense level (based on the First Step Act), as well as the district
court’s refusal to eliminate Hegwood’s career offender enhancement based on
“intervening caselaw” that would, if applied, “preclude[] his prior convictions from
triggering the career offender enhancement altogether.” See Stewart, 964 F.3d at 438
(citing Hegwood, 934 F.3d at 416–19).
Step Act, the court (1) “plac[es] itself in the time frame of the original
sentencing, altering the relevant legal landscape only by the changes mandated
by the 2010 Fair Sentencing Act”; and (2) “cannot consider other post-
sentencing changes in the law.” Id. (quoting Hegwood, 934 F.3d at 418)
(emphasis added). Given those determinations, we reasoned, in Jackson, that
it “would therefore make little sense to mandate . . . that the court consider a
defendant’s post-sentencing conduct, which would be to peer outside ‘the
time frame of the original sentencing.’” 945 F.3d at 322 & n.8 (emphasis
added in part). Nevertheless, “we did ‘not hold that the court cannot consider
post-sentencing conduct—only that it isn’t required to.’” Id. at 322 n.7
(emphasis added).
C. Other Consideration of 18 U.S.C. § 3553 (a) Factors
In Jackson, finding no abuse of discretion had occurred, we
additionally concluded that the district court “prоperly considered Jackson’s
extensive criminal history and role in the offense in declining to reduce the
sentence.” 945 F.3d at 322. In other words, we determined that the district
court could consider the § 3553(a) factors in deciding whether to reduce a
sentence under the First Step Act. Id.; see 18 U.S.C. § 3553(a) (identifying
factors including “the nature and circumstances of the offense and the
history and characteristics of the defendant”). However, we did not “hold
that the court must consider the factors in [] § 3553(a) in deciding whether to
resentence under the [First Step Act]; instead, we “reserve[d] the issue for
another day.” Id. at 322 n.8.
D. Reduction of a “Within Guidelines Range” Sentence
Most recently, in United States v. Carr, 823 F. App’x 252 (5th Cir.
2020), the appellant argued that the district court erroneously
the First Step Act to preclude the reduction of a sentence that remained
within the imprisonment range calculated pursuant to applicable provisions
of the United States Sentencing Guidelines (hereinafter referred to as the
“guidelines range”) at the time of resentencing. Despite the First Step Act’s
statutory changes, Carr’s resulting guidelines range was unaffected and his
original sentence remained within that range. Carr was designated a career
offender under U.S.S.G. § 4B1.1 and had been sentenced to concurrent 327-
month prison terms on two counts, as well as a consecutive term of 60
months on a firearm offense. In his First Step Act motion, Carr argued that
his good behavior in prison warranted a downward reduction from the
otherwise applicable guidelines range. Denying Carr’s motion, the district
court explained: “A downward variant sentence of imprisonment is not
imposed since the original sentencing judge imposed a guideline sentence.”
On appeal, both parties presumed that the First Step Act permits a
downward departure from the guidelines range in this context. Carr argued
that the district court, however, erroneously interpreted the First Step Act
to preclude the reduction of a sentence that remained within the guidelines
range at the time of a First Step Act resentencing. In support of this position,
Carr emphasized the district court’s failure to “address any of the arguments
and evidence” that he had presented, including his “claimed exemplary post-
sentencing conduct in prison.”
Affirming thе district court, we noted that Jackson expressly held that
district courts applying the First Step Act are not “obliged to consider . . .
post-sentencing conduct.” Carr, 823 F. App’x at 255 n.2 (quoting Jackson,
945 F.3d at 321) (emphasis added). We further concluded that Carr had
failed to show that the district court based its decision on an erroneous
interpretation of the First Step Act, explaining:
On the contrary, a more plausible interpretation of the
district court’s reasoning is that the court exercised its
discretion and chose not to reduce Carr’s original term of
imprisonment. For example, the court explained that a
downward variance “is” not imposed—not that a downward
variance “must” not be imposed, “cannot” be imposed, or
“may” not be imposed. In the absence of any mandatory
language, we cannot assume that the district court
misinterpreted the [First Step] Act and perceived itself to be
bound by a statutory rule or requirement. Indeed, Carr himself
argued in the district court that the First Step Act “places no
restriction on what [a court] may consider in imposing a
reduced sentence.” To be sure, we find more persuasive the
understanding that the district court believed Carr’s original
term of imprisonment to remain appropriate, and so decided,
as an exercise of its broad discretion, not to impose a lesser
term.
In any event, even if we found the district court‘s
reasoning ambiguous, Carr has the burden to convince us that
an abuse of discretion actually occurred. Garcia, 693 F.2d at
415. Identifying an ambiguous statement that could be read to
evince an abuse of discretion is not enough.
V.
In this appeal, Robinson challenges the district court’s refusal to
consider the lower, non-career offender sentencing range that would apply if
he were sentenced in 2019, rather than in 2010, in deciding whether to grant
his First Step Act motion for sentence reduction. Thus,
decide whether a district court, in exercising the sentencing discretion
granted by the First Step Act, may consider, as a § 3553(a) sentencing factor,
that a defendant originally sentenced as a career offender, for purposes of
U.S.S.G. § 4B1.1, would not hold that status if originally sentenced, for the
same crime, today.
Our research has revealed that a number of our sister circuits likewise
are being asked similar questions. See United States v. Griffin, 821 F. App’x
249 (4th Cir. 2020); United States v. Deruise, 816 F. App’x 427, 429 (11th Cir.
2020); United States v. Sims, 824 F. App’x 739 (11th Cir. 2020); United States
v. Flowers, 963 F.3d 492 (6th Cir. 2020); United States v. Hudson, 967 F.3d
605 (7th Cir. 2020); United States v. Kelley, 962 F.3d 470 (9th Cir. 2020);
United States v. Harris, 960 F.3d 1103, 1106–07 (8th Cir. 2020); United States
v. Chambers, 956 F.3d 667 (4th Cir. 2020); United States v. Shaw, 957 F.3d
734, 741–42 (7th Cir. 2020). Although the case law is still evolving, it appears
that most circuits generally permit, but not require, some consideration of
current guideline ranges, in evaluating a First Step Act motion, insofar as the
information relates to § 3553(a) factors.
In this circuit, our decisions in Hegwood, Jackson, and Stewart are
controlling. Based on those cases, any argument by Robinson that the district
court was required to consider the lower non-career оffender guideline range
that would apply if his original sentencing were in 2019, rather than 2010, is
foreclosed as a matter of law pursuant to our rule of orderliness. On the other
hand, as our discussion above indicates, we have approved courts’
consideration of § 3553(a) factors in deciding First Step Act motions.
Although Jackson had not been decided at the time that Robinson’s motion
was denied, Hegwood had. See Hegwood, 934 F.3d at 418; see also 18 U.S.C.
§ 3553(a) (identifying factors including “the nature and circumstances of the
offense and the history and characteristics of the defendant”).
Robinson neverthelеss contends that the district court interpreted
Hegwood as prohibiting any consideration of the fact that he would not be
sentenced as a career offender if sentenced today. As the quoted excerpt
from its order reflects, the district court, citing our decision in Hegwood,
certainly stated: “Robinson still remains subject to his career offender
status.” See September 30, 2019 Order at 8. Importantly, however, that is
not all the order states.
Conversely, the order reflects the court’s full awareness and
understanding of Robinson’s position and all of the infоrmation that he
provided in support of it. In other words, the order reflects that the district
court gave due consideration to all of Robinson’s arguments in favor of a
reduction in light of the § 3553(a) factors. Indeed, the district court expressly
confirmed—three different times—that it was considering § 3553(a) factors,
including Robinson’s post-incarceration work, which the court characterized
as “admirable.” See September 30, 2019 Order at 4, 7–8. Nevertheless, the
court decided that it “will not exercise its discretion in this case.” Id. at 7.
Contrary to Robinson’s assertion, a close look at the remainder of the
court’s order reveals the primary reason for this decision was not because the
court thought it was precluded from considering what Robinson’s guidelines
range would be if his original sentencing were in 2019, rather than 2010.
Undoubtedly, the district court’s true focus, in deciding to deny Robinson’s
motion, was his “extensive criminal history”—which included numerous
drug distribution offenses—and his “lack of respect for the law.” Id. at 8. In
fact, the court’s order expressly states: “Robinson’s
U.S.C. § 860(a) is particularly relevant in evaluating whether the Court
should exercise its discretion.” Id. This is understandablе, since, as the court
explains: “Section 860(a) doubles the penalty ranges for violations of 21
U.S.C. 841(b),” yielding Robinson’s 40-year statutory maximum, “because
a violation of section 860(a) involves possession or distribution of drugs
within 1,000 feet of a school.” Id.
The order further clarifies:
Thus, the Court believes that a denial of Robinson’s
sentence is appropriate in light of section 3553(a)(2). See 18
U.S.C. § 3553(a)(2) (the court shall consider “the need for the
sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment”).
Finally, the Court agrees with the Government that
“Robinson’s original sentence was imposed largely due tо his
extensive criminal history.” Robinson’s extensive record
resulted in 15 criminal history points. He received 15 points
even though no criminal history points were assigned for one
felony drug conviction. Additionally, his criminal history
reflects that Robinson distributed cocaine at least six times and
possessed a significant amount of crack cocaine, not including
his arrest for the instant case. Therefore, the Court finds that
Robinson’s criminal history and lack of respect for the law
heavily weigh against granting a reduction in his sentence.
Id.
Additionally, as the government emphasizes, there is no suggestion in
the entirety of the nine-page order that the district court wanted to reduce
Robinson’s sentence but thought itself legally barred from doing so. To the
contrary, Hegwood emphasizes that the decision whether to reduce a sentence
is firmly committed to the district court’s discretion. At any rate, we are not
persuaded that any legal error occurred here in the district court’s
assessment of Robinson’s motion. That is, we are not convinced that the
district court based its determination on an erroneous interpretation of the
First Step Act or Hegwood. Instead, as we concluded in our recent decision in
Carr, it is more plausible, on the record before us, that the district court,
having evaluated all pertinent factors, simply exercised its statutory
discretion to deny the motion. And, on this record, we find no abuse of
discretion.
VI.
For the reasons stated herein, we AFFIRM.