UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VINCENT CORNER, Defendant-Appellant.
No. 19-3517
United States Court of Appeals For the Seventh Circuit
July 24, 2020
ARGUED JULY 8, 2020 — DECIDED JULY 24, 2020
Before WOOD, BARRETT, and ST. EVE, Circuit Judges.
Appeal from the United States District Court for the Western District of Wisconsin. No. 07-cr-104 — Barbara B. Crabb, Judge.
While serving a term of supervised release for possessing with intent to distribute 11 grams of cocaine base (i.e., crack),
Shortly after Corner was sentenced, Congress passed the First Step Act of 2018, which empowers district courts to reduce a defendant’s sentence by applying the Fair Sentencing Act of 2010 retroactively. First Step Act of 2018, Pub. L. No. 115–391, § 404(b), 132 Stat. 5194. The Fair Sentencing Act, in relevant part, modified
Corner then pointed out, correctly, that, had the Fair Sentencing Act applied at the time of his original sentencing, there would have been three material differences. First, the statutory range is now 0 to 20 years’ imprisonment; at the time of sentencing, it was 5 to 40 years. Second, his original crime now carries a maximum revocation sentence of two years’ imprisonment; he was sentenced to 18 months’ imprisonment with the understanding that his crime carried a maximum revocation sentence of 3 years. And third, his underlying offense now carries a minimum of three years’ supervised release, but the additional 42 months of supervision that the court ordered to follow his revocation sentence was imposed with the understanding that the underlying drug offense required a minimum of four years’ supervised release.
The government argued in response that, because Corner had completed his sentence for the crack conviction, he was not eligible for relief under the First Step Act with respect to the revocation sentence. Even if Corner were eligible, it argued, his repeated violations of the terms of his supervised release warranted the 18 months of reimprisonment and the additional 42 months’ supervision.
The district court denied Corner’s motion. It first concluded that deciding whether he was eligible for relief under the First Step Act was unnecessary because the court “would deny his request for a reduction” even if he was. The court cited Corner’s untruthfulness with his supervising probation officer, his refusal to comply with drug testing, his persistent use of illegal drugs, and his inability to hold down a job. These were the same grounds it had given for the revocation sentence. Further, the court noted that the 18-month prison term was permissible because it did not exceed the new maximum revocation penalty of two years. Finally, the court, without further explanation, declined to reduce Corner’s new period of supervised release, but it said it would later consider a modification if his conduct on supervision warranted it.
Corner completed his 18-month revocation sentence and began his 42 months of supervision in March 2020. On appeal, Corner argues that the district
Section 404 of the First Step Act provides that anyone who is eligible for relief under the Act can move for a reduced sentence and directs district courts to consider the motion with reference to the statutory guidelines imposed by the Fair Sentencing Act. From there, the court’s decision is discretionary; section 404(c) makes clear that the court is never required to reduce a sentence under section 404(b). What procedure, if any, a court must follow before making that decision, is up for debate: Courts generally agree that plenary sentencing is not required, see United States v. Foreman, 958 F.3d 506, 510 (6th Cir. 2020) (collecting cases); several courts say that consideration of the
Corner frames the issue on appeal as an “eligibility” question, and the government follows suit, but eligibility is simply the gateway to resentencing under the First Step Act and is determined by “the statute of conviction alone.” Shaw, 957 F.3d at 739. The district court’s discretionary decision to grant or deny the request for a reduced sentence is the main event. So the question here is less about determining eligibility than determining the consequences of eligibility—the new statutory penalties—and whether a district court can reasonably exercise its discretion without doing so. The text of the First Step Act, however, suggests that it cannot.
The statute contemplates a close review of resentencing motions: section 404(c) states that a person cannot seek relief under the Act more than once if the first motion was “denied after a complete review of the motion on the merits.” First Step Act § 404(c) (emphasis added); see also Shaw, 957 F.3d at 743; United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020). The requirement that a motion under § 404 receive a “complete review” suggests a baseline of process that includes an accurate comparison of the statutory penalties—and any resulting change to the sentencing parameters—as they existed during the original sentencing and as they presently exist. “A resentencing predicated on erroneous or expired guideline calculation,” or a decision to decline resentencing without considering at all the guidelines, “would seemingly run afoul of Congressional expectations.” Boulding, 960 F.3d at 784.
This is comparable to the procedural requirement that a district court correctly compute the applicable sentencing guidelines range before deciding, in its discretion, what sentence to impose. See Gall v. United States, 552 U.S. 38, 51 (2007). Although a
The government argues that, even if the district court erred by declining to consider the modified statutory penalties, this court should nevertheless affirm because any error was harmless: the court would have imposed the same sentence, and, in any event, Corner has now finished serving his revocation sentence. True, a procedural error (such as a miscalculation of the applicable guidelines range) is not reversible if it’s clear that the court did not rely on it when selecting the sentence. United States v. Snyder, 865 F.3d 490, 500 (7th Cir. 2017). In fact, we encourage district courts to exercise discretion under
In any case, the district court’s exercise of its discretion was unreasonable because it did not address Corner’s argument that he deserved a reduced sentence in light of the goals and policies of the First Step Act. In sticking with the original terms of reimprisonment and supervised release, it cited only the reasons it had given at the time it first selected them—before the First Step Act became effective. The sentence was based on parameters that no longer apply, but the district court did not analyze whether that sentence was still appropriate in light of the changed statutory penalties (and corresponding effects on the sentencing guidelines) as the First Step Act requires. Such a barebones explanation amounts to no exercise of discretion at all. And a district court’s non-exercise of discretion is itself an abuse of discretion. Dolin v. GlaxoSmithKline LLC, 951 F.3d 882, 889 (7th Cir. 2020).
Congress afforded district courts wide discretion in the First Step Act context. But by not considering what reduced penalties would now apply to Corner’s offense,