UNITED STATES OF AMERICA v. STEVEN JONES; UNITED STATES OF AMERICA v. ALFONSO ALLEN; UNITED STATES OF AMERICA v. WARREN LAVELL JACKSON; UNITED STATES OF AMERICA v. THOMAS JOHNSON
No. 19-11505
United States Court of Appeals for the Eleventh Circuit
June 16, 2020
[PUBLISH]
D.C. Docket No. 1:94-cr-00067-WS-1; D.C. Docket No. 1:05-cr-20916-WPD-3; D.C. Docket No. 2:99-cr-14021-DMM-1; D.C. Docket No. 1:08-cr-20190-JEM-1
Before WILLIAM PRYOR, Chief Judge, GRANT, Circuit Judge, and JUNG,* District Judge.
These appeals require us to determine whether the district courts erred in denying four motions for reduced sentences under the First Step Act of 2018. That Act permits district courts to apply retroactively the reduced statutory penalties for crack-cocaine offenses in the Fair Sentencing Act of 2010 to movants sentenced before those penalties became effective. Steven Jones, Alfonso Allen, Warren Jackson, and Thomas Johnson were sentenced for crack-cocaine offenses before the effective date of the Fair Sentencing Act and sought reduced sentences under the First Step Act. The district courts denied their motions. We affirm the denials of relief to Jones and Jackson, and we vacate the denials of relief to Allen and Johnson and remand because their orders do not make clear that the district court understood that it could reduce the movants’ sentences.
I. BACKGROUND
Steven Jones, Alfonso Allen, Warren Jackson, and Thomas Johnson each relied on the First Step Act of 2018 to seek a sentence reduction in the district courts. The district courts denied their motions. Because these appeals raise common issues of first impression in our Circuit, we resolve them in one opinion.
In 1994, a grand jury charged Jones with conspiracy to possess with intent to distribute “more than sixteen . . . kilograms of cocaine and of a mixture and substance containing a detectable amount of [crack cocaine],”
At sentencing, the district court found that Jones was responsible for at least 75 kilograms of crack cocaine. Jones‘s statutory range for counts one and two was 10 years to life imprisonment. See
In 2019, Jones filed a motion for a reduced sentence under the First Step Act. He argued that he was eligible for a sentence reduction based on the statutory penalties in
In 2006, a grand jury charged Allen with one count of conspiracy to distribute 50 grams or more of crack cocaine,
At sentencing, Allen‘s conviction for conspiracy to distribute 50 grams or more of crack cocaine carried a statutory mandatory sentence of life imprisonment because of his two prior felony drug convictions. See
In 2019, Allen filed a motion for a reduced sentence under the First Step Act. He argued that with the retroactive application of the Fair Sentencing Act and his commutation, his statutory and guideline ranges would be lower than when he was sentenced. The district court denied the motion and ruled that “[t]he retroactive
In 1999, a grand jury charged Jackson with one count of possessing with intent to distribute more than 50 grams of crack cocaine,
At sentencing, the district court found that Jackson was responsible for 287 grams of crack cocaine. Jackson faced a statutory mandatory sentence of life imprisonment because of the drug quantity and his prior felony drug convictions. See
In 2019, Jackson filed a motion for a reduced sentence under the First Step Act. He argued that he was entitled to a reduced statutory range because the district court set his statutory penalties based on a drug-quantity finding that the jury had not found beyond a reasonable doubt. The district court relied on the drug-quantity finding of 287 grams of crack cocaine to conclude that the Fair Sentencing Act “would have had no impact on [Jackson‘s] sentence,” and it denied the motion.
In 2008, a grand jury charged Johnson with possession with intent to distribute five grams or more of crack cocaine,
At sentencing, Johnson‘s crack-cocaine count carried a statutory range of 10 years to life imprisonment because of the enhancement for his prior felony drug convictions. See
II. STANDARD OF REVIEW
We review de novo questions of statutory interpretation, United States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009), and whether a district court had the authority to modify a term of imprisonment, United States v. Phillips, 597 F.3d 1190, 1194 & n.9 (11th Cir. 2010). We review for abuse of discretion the denial of an eligible movant‘s request for a reduced sentence under the First Step Act. See First Step Act of 2018, Pub. L. No. 115-391, § 404(b)–(c), 132 Stat. 5194, 5222 (stating that a district court “may” reduce a sentence but is not “require[d]” to do so).
III. DISCUSSION
We divide our discussion in three parts. First, we describe how the disparity in penalties for crack- and powder-cocaine offenses led Congress to enact the Fair Sentencing Act. Second, we discuss the authority of a district court to reduce a sentence under the First Step Act. Third, we conclude that the district courts did not err in denying the motions of Jones and Jackson but that we must vacate the orders denying Allen‘s and Johnson‘s motions and remand for further proceedings. The parties now agree, as do we, that the movants who received an executive grant of clemency—Allen, Jackson, and Johnson—are not ineligible for a reduction on that basis, so we need not discuss that issue further.
A. The 100-to-1 Ratio for Crack- and Powder-Cocaine Offenses.
When the movants were sentenced, the statutory penalties for drug-trafficking offenses involving crack cocaine were the same as the statutory penalties for drug-trafficking offenses involving 100 times as much powder cocaine. See Kimbrough v. United States, 552 U.S. 85, 91 (2007) (citing
The United States Sentencing Commission condemned the disparity between the penalties for crack- and powder-cocaine offenses. See, e.g., U.S. Sentencing Comm‘n, Report to the Congress: Cocaine and Federal Sentencing Policy 2, 7–8 (May 2007); U.S. Sentencing Comm‘n, Special Report to the Congress: Cocaine and Federal Sentencing Policy 1–2, 9 (Apr. 1997). “[T]o keep similar drug-trafficking sentences proportional,” the Commission based the offense levels in the Guidelines on the
Congress amended the penalties for crack-cocaine offenses when it enacted the Fair Sentencing Act of 2010. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). The Act increased the quantity of crack cocaine necessary to trigger the higher penalties in subsections (b)(1)(A)(iii) and (B)(iii). Fair Sentencing Act § 2(a). A defendant now must traffic at least 280 grams of crack cocaine to trigger the highest penalties,
B. The First Step Act Permits District Courts to Reduce the Term of Imprisonment for Certain Previously Sentenced Crack-Cocaine Offenders.
When Congress enacted the First Step Act of 2018, it granted district courts discretion to reduce the sentences of crack-cocaine offenders in accordance with the amended penalties in the Fair Sentencing Act. See First Step Act § 404. A district court lacks the inherent authority to modify a term of imprisonment.
The First Step Act permits a district “court that imposed a sentence for a covered offense” to “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). It defines “covered offense” 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 . . . that was committed before August 3, 2010.”
To be eligible for a reduction, the district court must have “imposed a sentence” on the movant for a “covered offense.”
We see two possibilities. The penalties clause could modify the phrase “violation of a Federal criminal statute.” Or it could modify only the shorter phrase “Federal criminal statute.” See United States v. Johnson, 19-874, 2020 WL 3023063, at *7 (2d Cir. June 5, 2020); United States v. Boulding, No. 19-1590, 19-1706, 2020 WL 2832110, at *6 (6th Cir. June 1, 2020); United States v. Shaw, 957 F.3d 734, 738 (7th Cir. 2020); United States v. Smith, 954 F.3d 446, 448–49 (1st Cir. 2020); United States v. Jackson, 945 F.3d 315, 320 (5th Cir. 2019); United States v. McDonald, 944 F.3d 769, 771–72 (8th Cir. 2019); United States v. Wirsing, 943 F.3d 175, 185–86 (4th Cir. 2019).
The better reading is that the penalties clause modifies the whole phrase “violation of a Federal criminal statute.” A violation of a federal criminal statute is commonly called an “offense.” Offense, Black‘s Law Dictionary (11th ed. 2019) (“A violation of the law; a crime . . . .“). This definition makes sense because the term we are defining is “covered offense.” See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 36, at 232 (2012) (“[T]he word being defined is the most significant element of the definition‘s context.“);
The alternative interpretation primarily relies on the nearest-reasonable-referent canon, which provides that a “modifier normally applies only to the nearest reasonable referent.” Scalia & Garner, Reading Law § 20, at 152. The relevant modifier in the definition of “covered offense” is the penalties clause. The movants argue that this canon suggests that the penalties clause modifies only the phrase “Federal criminal statute” because that is the referent that immediately precedes the penalties clause. See, e.g., Jackson, 945 F.3d at 320; Wirsing, 943 F.3d at 185. But that reading ignores the fact that the canon does “not appl[y]” when a “modifier directly follows a concise and integrated clause,” Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1077 (2018) (internal quotation marks omitted), such as “a violation of a Federal criminal statute,” see Scalia & Garner, Reading Law § 20, at 152 (explaining that a modifier “applies only to
The decision of the Supreme Court in Cyan is instructive. In Cyan, the Court interpreted a statutory provision that stated: “Any covered class action brought in any State court involving a covered security, as set forth in subsection (b) of this section, shall be removable to the Federal district court for the district in which the action is pending, and shall be subject to subsection (b) of this section.” 138 S. Ct. at 1075 (emphasis added) (quoting
The Supreme Court rejected the government‘s argument that the “rule of the last antecedent” mandated a different interpretation. Id. at 1076 (internal quotation marks omitted). The government contended that the “as-set-forth” clause did not refer to the entire preceding clause but instead referred only to the immediately preceding phrase “involving a covered security.” Id. (internal quotation marks omitted). It argued that subsections (b)(1) and (b)(2) set forth specific types of misconduct related to the sale of a covered security. Id. So the government argued a covered class action that alleged the kind of misconduct in those subsections was subject to removal, regardless of whether it was premised on state law, that is, regardless of whether the class action was the type set forth in subsection (b). Id. In rejecting that argument, the Supreme Court explained that the “as-set-forth” clause “goes back to the beginning of the preceding clause” because the clause “hangs together as a unified whole, referring to a single thing (a type of class action).” Id. at 1077. The rule of the last antecedent was not to the contrary because that rule does not apply “when the modifier directly follows a concise and integrated clause.” Id. (internal quotation marks omitted). Contra Mellouli v. Lynch, 135 S. Ct. 1980, 1989–90 (2015) (applying the canon to the long and segmented phrase “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in [section] 802)” to conclude that “relating to a controlled substance” did not reach all the way back to modify “violation” (alteration adopted) (quoting
In the definition of “covered offense,” the penalties clause directly follows the concise and integrated clause “a violation of a Federal criminal statute.” The clause refers to a single thing—a type of violation. Indeed, this clause functions as a unified phrase elsewhere in the definition of covered offense. Recall, “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 . . . , that was committed before August 3, 2010.” First Step Act § 404(a) (emphasis added). The final clause modifies the unified phrase because one cannot “commit” a “Federal criminal statute,” only a “violation of a Federal criminal statute.”
The alternative interpretation—that the penalties clause modifies only “Federal criminal statute“—would mean that any movant sentenced for a drug-trafficking offense would have a covered offense even
Interpreting “Federal criminal statute” to mean “statutory provision” is not a viable alternative. Some of our sister circuits have held that a movant has a covered offense if he violated section 841(b)(1)(A)(iii) or (B)(iii). See Johnson, 2020 WL 3023063, at 7 n.6; Wirsing, 943 F.3d at 186. But it is unnatural to read these subsections, which provide the penalties for violations of section 841(a) involving crack cocaine, as being the “statute” to which the penalties clause refers, especially because doing so requires concluding that the Fair Sentencing Act modified the [TRANSCRIPT INTERRUPTED - CONTINUES IN PART 2]
penalties that apply to these “statutes” by modifying the provisions themselves.
Our sister circuits attempt to avoid application of the First Step Act to movants with offenses involving a controlled substance other than crack cocaine by ignoring that drug-trafficking defendants who “violate” a penalty provision in subsection 841(b) also violate section 841, a statute for which the Fair Sentencing Act modified the statutory penalties.
Reading the penalties clause as modifying the unified phrase “violation of a Federal criminal statute” avoids these oddities. It makes clear that the clause refers to the crack-cocaine offenses for which sections 841(b)(1)(A)(iii) and (B)(iii) provide the penalties. Those provisions are two of the statutory penalty provisions that apply to violations of section 841(a), and they are the only provisions that the Fair Sentencing Act modified. See
To be sure, the penalties clause uses the past tense—“were modified“—to describe the effect that the Fair Sentencing Act had on the statutory penalties. And the Fair Sentencing Act did not modify the penalties for any movant‘s earlier statutory violation because the Act did not apply retroactively. See Jackson, 945 F.3d at 320 (citing United States v. Rose, 379 F. Supp. 3d 223, 229 (S.D.N.Y. 2019)). But even so, the Fair Sentencing Act modified the statutory penalties for certain crack-cocaine offenses (that is, covered offenses), which means the First Step Act permits courts to review whether the Fair Sentencing Act altered the penalties for the movant‘s category of offense.
To determine the offense for which the district court imposed a sentence, district
We reject the argument by the government that a district court must determine a movant‘s “covered offense” by considering the specific quantity of crack cocaine involved in the movant‘s violation. The government argues that because Congress used the term “violation” instead of “conviction,” “covered offense” means all the movant‘s conduct underlying the statutory violation, not only the finding of drug quantity that triggered the statutory penalty. The government would have courts consider a finding of drug quantity anywhere in the record, such as a finding that was necessary for determining only relevant conduct under the Sentencing Guidelines or a finding in a postsentencing proceeding.
That argument impermissibly isolates the word “violation” from its context, which establishes that a covered offense is an offense. See
Although we reject the argument that a movant‘s covered offense is determined by the actual quantity of crack cocaine involved in his violation, we acknowledge that a district court, of course, could consider its previous findings of relevant conduct in deciding whether to exercise its discretion to reduce an eligible movant‘s sentence under section 404(b) of the First Step Act. See
We also reject the movants’ argument that district courts may not, in making the “covered offense” determination, consider a previous drug-quantity finding that was necessary to trigger the statutory penalty if it was made by a judge. The movants argue that when a jury did not make a drug-quantity finding, a district court should consider only that the offense involved a detectable amount of crack cocaine—punishable by section 841(b)(1)(C)—regardless of the statutory penalty that the district court applied at sentencing. To be sure, we now understand that a jury was constitutionally required to find the nature and quantity of the controlled substance involved in the offense if that finding increased the statutory penalty. See Apprendi, 530 U.S. at 490; see also Danforth v. Minnesota, 552 U.S. 264, 271 (2008) (“[T]he source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule.“); cf. Lester v. United States, 921 F.3d 1306, 1312–15 (11th Cir. 2019) (W. Pryor, J., respecting the denial of rehearing en banc) (explaining that the Guidelines were never truly mandatory because that practice always violated the Sixth Amendment). But just as a movant may not use Apprendi to collaterally attack his sentence, see McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001), he cannot rely on Apprendi to redefine his offense for purposes of a First Step Act motion. Moreover, taken to its logical end, the movants’ argument would mean that a movant convicted before Apprendi is ineligible for relief under the First Step Act because the Fair Sentencing Act did not modify the statutory penalties for offenses involving only a detectable amount of crack cocaine.
All four of the movants were sentenced for a covered offense. The district court sentenced Jones for, among others, the offenses of conspiracy to possess with intent to distribute 50 grams or more of crack cocaine and possession with intent to distribute 50 grams or more of crack cocaine. Those offenses were charged in his superseding indictment as conspiracy to possess with intent to distribute more than 16 kilograms of powder and crack cocaine and possession with intent to distribute more than 600 grams of powder and crack cocaine. But the final judgment lists both offenses as solely crack-cocaine offenses, and the district court‘s drug-quantity finding involved only crack cocaine. The record establishes that the district court treated both counts as crack-cocaine offenses when it “imposed a sentence” on Jones. See
The district court sentenced Allen for, among others, the offense of conspiracy to distribute 50 grams or more of crack cocaine. That offense was charged in his indictment and found by a jury. The statutory penalty for that offense was originally life imprisonment because of Allen‘s two prior felony drug convictions. See id.
The district court sentenced Jackson for the offense of possession with intent to distribute 50 grams or more of crack cocaine. Jackson‘s indictment charged him with that offense, and although the jury did not make a drug-quantity finding, the district court found at sentencing a drug quantity of at least 50 grams of crack cocaine. The statutory penalty for Jackson‘s offense was originally life imprisonment because of Jackson‘s drug quantity and three prior felony drug convictions. See id.
The district court sentenced Johnson for, among others, the offense of possession with intent to distribute five grams or more of crack cocaine. That is the offense in his indictment and found by a jury. Because of Johnson‘s four prior felony drug convictions, the statutory penalty for his offense was 10 years to life imprisonment. See id.
The movants all have a “covered offense” because the district court sentenced them for violations of section 841 for which the Fair Sentencing Act modified the statutory penalties. But a movant‘s satisfaction of the “covered offense” requirement does not necessarily mean that a district court can reduce his sentence. Any reduction must be “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.”
This “as-if” requirement imposes two limits relevant to these appeals. First, it does not permit reducing a movant‘s sentence if he received the lowest statutory penalty that also would be available to him under the Fair Sentencing Act. Second, in determining what a movant‘s statutory penalty would be under the Fair Sentencing Act, the district court is bound by a previous finding of drug quantity that could have been used to determine the movant‘s statutory penalty at the time of sentencing.
If the movant‘s sentence would have necessarily remained the same had the Fair Sentencing Act been in effect, then the district court lacks the authority to reduce the movant‘s sentence. Any reduction the district court would grant would not be “as if” the Fair Sentencing Act had been in effect. That is, the First Step Act does not permit a reduction when the Fair Sentencing Act could not have benefitted the movant.
To be clear, the Constitution does not prohibit district courts, in deciding motions for reduced sentences under the First Step Act, from relying on earlier judge-found facts that triggered statutory penalties that the Fair Sentencing Act later modified. In determining what a movant‘s statutory penalties would be under the Fair Sentencing Act, the district court is not increasing the movant‘s penalty. It is either maintaining the movant‘s penalty or decreasing it. See Alleyne, 570 U.S. at 103 (“[A]ny fact that increases the mandatory minimum is an ‘element’
C. The District Courts Did Not Err in Denying the Motions of Jones and Jackson but May Have Erred in Denying the Motions of Allen and Johnson.
The district courts did not err in denying the motions of Jones and Jackson. When the district court sentenced Jones, its drug-quantity finding of 75 kilograms of crack cocaine subjected Jones to a statutory range of 10 years to life imprisonment. The only argument Jones made that the First Step Act entitled him to a reduced sentence was that the absence of a drug-quantity finding by the jury meant that his statutory range should be zero to 20 years of imprisonment. The district court did not err in refusing to allow Jones to relitigate his drug-quantity finding. Jackson was sentenced to a statutory mandatory sentence of life imprisonment based on a drug-quantity finding of 287 grams of crack cocaine and his three prior felony drug convictions. The district court correctly concluded that it could not reduce Jackson‘s sentence because his drug-quantity finding meant that he would face the same statutory penalty of life imprisonment under the Fair Sentencing Act. See
The district court had the discretion to reduce the sentences of Allen and Johnson. At their sentencings, the district court determined their statutory penalties based on the drug quantities that the juries found beyond a reasonable doubt. The jury in Allen‘s trial found a drug quantity of 50 grams or more of crack cocaine. And Johnson‘s jury found a drug quantity of five grams or more of crack cocaine. Allen‘s and Johnson‘s statutory ranges would have been lower if the Fair Sentencing Act had been in effect when they committed their offenses. Allen‘s statutory range would have been 10 years to life imprisonment instead of a mandatory sentence of life imprisonment. Compare id.
The district court had the authority to reduce Allen‘s and Johnson‘s sentences, but it was not required to do so. The First Step Act states that “[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section.”
The district court might have incorrectly concluded that Allen was ineligible for a reduction either because of the drug-quantity finding or because of his designation as a career offender. The government stated at oral argument that it viewed the district court as ruling that it lacked the authority to reduce Allen‘s sentence. Allen‘s commuted sentence is at the bottom of the guideline range, which may have caused the district court to conclude that Allen was ineligible for a further reduction to his sentence. So we vacate the order and remand for further consideration.
The order denying relief to Johnson is also ambiguous as to whether the district court understood its authority to reduce Johnson‘s sentence below the revised guideline range. As a reminder, the district court sentenced Johnson as a career offender to 360 months of imprisonment, and the President later commuted his sentence to 240 months of imprisonment. In denying Johnson‘s motion, the district court correctly rejected arguments by the government that Johnson was ineligible for a reduced sentence because of his commutation and career-offender status. It then explained that Johnson “appear[ed] eligible for relief” but that “[n]otwithstanding the statutory revisions, all parties appear to agree” that because of the commutation, Johnson‘s sentence is already nearly two years less than the bottom of his revised guideline range. The district court concluded by “find[ing] that the First Step Act affords no further relief to [Johnson] in this case.”
We cannot be sure that the district court understood its authority to reduce Johnson‘s sentence below the revised guideline range. The ambiguous phrase that the First Step Act “affords no further relief” leaves us unsure of the grounds for the ruling. The government erroneously argued in the district court that Johnson was ineligible for a reduction because his sentence was already below the revised guideline range. If the district court ruled that it could not grant Johnson‘s motion, that ruling would be erroneous because neither the First Step Act nor section 3582(c)(1)(B) barred the district court from reducing Johnson‘s sentence below the revised guideline range. It is also possible that the district court correctly understood that it could reduce Johnson‘s sentence but chose not to because Johnson‘s commutation already afforded him what it believed to be sufficient relief. We cannot tell which of these readings is correct, so we vacate the order and remand for further proceedings.
IV. CONCLUSION
We AFFIRM the orders denying Jones‘s and Jackson‘s motions to reduce their sentences. We VACATE the orders denying Allen‘s and Johnson‘s motions and REMAND for further proceedings.