United States v. Kojak Batiste

Case: 19-30927 Document: 00515637842 Page: 1 Date Filed: 11/13/2020

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

November 13, 2020

No. 19-30927 Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Kojak Batiste,

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:06-CR-145-1

Before Graves, Costa, and Engelhardt, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

Defendant-Appellant, Kojak Batiste, 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. Finding no abuse of

discretion or deficiency in the district court’s ruling relative to Batiste’s

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sentence of imprisonment, we AFFIRM that aspect of the district court’s

November 7, 2019 order. Because the order does not expressly reference

Batiste’s request relative to his term of supervised release, however, we

REMAND that portion of Batiste’s motion to the district court for

consideration and disposition in accordance with this opinion.

I.

Kojak Batiste pleaded guilty in 2007 to distributing 50 grams or more

of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii). By

virtue of a bill to establish prior convictions having been filed pursuant to 21

U.S.C. § 851, Batiste’s statutory mandatory minimum sentence was 20 years,

rather than the 10 years that otherwise would have been applicable (in 2007)

under 21 U.S.C. §§ 841(a)(1), (b)(1)(A). Based on a career offender

enhancement, pursuant to U.S.S.G. § 4B1.1, his total offense level was 34

and his criminal history category was VI. His resulting sentencing guidelines

range of imprisonment was 262 to 327 months of imprisonment. A statutory

minimum term of 10 years of supervised release applied. On June 27, 2007,

Batiste was sentenced as a career offender to a within-guidelines sentence of

262 months of imprisonment and 10 years of supervised release. His direct

appeal was dismissed, and his efforts to obtain postconviction relief,

including challenges to his career offender classification and resulting

sentence of 262 months of imprisonment, were unsuccessful.

In February 2019, Batiste filed a pro se motion seeking a reduction of

sentence under section 404 of the First Step Act. In September 2019, Batiste,

represented by counsel, submitted a memorandum in support of the motion.

The government opposed the motion. By written Order and Reasons entered

on November 7, 2019, the district court denied the motion. This appeal

followed.

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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). It is the defendant’s burden to “show that the trial

judge's 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 to,

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

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3 of the Fair Sentencing Act “eliminated 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) persons

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.

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Specifically, section 404 gives courts the discretion to retroactively apply the

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 committed 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. at

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

(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 committed.

(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

of 2010 (Public Law 111–220; 124 Stat. 2372) or if a previous motion made under this

section to reduce the sentence 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).

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by the Fair Sentencing Act, that defendant satisfies 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,

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.

Jackson, 945 F.3d at 321.

The First Step Act likewise expressly prescribes the scope of the re-

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 authority to consider

reducing a sentence previously imposed.” Hegwood, 934 F.3d at 418.

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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 of 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 calculation 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

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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 of the original sentencing, altering the

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 sentence 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.

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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 the 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

consideration 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

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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 Act sentencing.’” Id. at 439 (quoting Hegwood, 934

F.3d at 418).

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 offender 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.

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).

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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

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 “properly 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.

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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 interpreted

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 the 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

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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.

Carr, 823 F. App’x at 255.

V.

Regarding Batiste’s section 404 motion, the record before us reflects

a probation officer’s determination that, under the Fair Sentencing Act, as

made retroactive by the First Step Act, Batiste’s statutory mandatory

minimum sentence was reduced from 240 months to 120 months. No other

change was noted. A screening committee agreed that Batiste was eligible

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under section 404 of the First Step Act, but the government opposed any

reduction “in light of the career offender Guideline.”

Enrolling as Batiste’s counsel, the Federal Public Defender filed a

memorandum in support of the motion for reduction, arguing that a

reduction was warranted in light of Batiste’s post-sentencing conduct, “the

individualized circumstances of his case[,] and . . . the § 3553(a) sentencing

factors.” Acknowledging that his career offender guidelines range remained

unchanged, by virtue of Hegwood, Batiste argued that the district court

nevertheless had broad discretion to vary downward and requested that his

262-month sentence be reduced to the current statutory 120-month

mandatory minimum or time-served. Batiste argued that a 120-month

sentence was appropriate in light of his post-sentencing conduct, including

his work at the textile factory, development of trade skills to ensure success

upon release, genuine commitment to rehabilitation, and, according to him,

“extensive information demonstrating that he has learned from . . . his prior

mistakes and will not recidivate. . . .”; the fact that he would no longer qualify

as a career offender under the current Sentencing Guidelines; and other

relevant sentencing factors under § 3553(a), including his history and

characteristics, the nature of his non-violent drug offense, and the need to

avoid unwarranted sentencing disparities. He also requested that the district

court reduce his term of supervised release from 10 years to 8 years, which

he noted was the current statutory minimum term of supervised release.

The government conceded that Batiste was eligible for a potential

reduction under the First Step Act, with the applicable statutory penalty

range now 10 years to life imprisonment, rather than 20 years to life, and that

the court had discretion to reduce it. The government nevertheless requested

that the district court either deny the motion or limit any reduction,

considering Batiste’s criminal history and that his 262-month sentence was

within the unchanged career offender guidelines range. In considering

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whether and to what extent to reduce the defendant’s sentence, the

government agreed that the district court should consider the relevant

§ 3553(a) factors, along with any positive or negative post-sentencing

conduct in assessing whether to reduce the sentence. But, citing Hegwood,

the government maintained that the First Step Act did not allow the court to

revisit Batiste’s status as a career offender. The government also

acknowledged Batiste’s good conduct post-sentencing but concluded that

nothing in the record suggested that the original sentence was unwarranted

in light of Batiste’s criminal history. Specifically, the government

emphasized several points in the opposition memorandum that it submitted

to the district court, arguing that “these circumstances support a lengthy

sentence for a defendant who continually took part in criminal activity for

about thirteen years before being charged in the instant case:”

First, in light of Hegwood, Batiste remains a career

offender. The 2016 amendments to the Guidelines’ “crime of

violence” definition for career-offender purposes, which were

prompted by Johnson v. United States, 135 S. Ct. 2551 (2015),

were not made retroactive by the Sentencing Commission.

Second, Batiste accumulated eighteen criminal history points,

five more than needed to be placed in Category VI. Third,

many of his offenses reflect a disregard for the wellbeing of

others, [including hit and run and negligent injury; driving

while intoxicated; and aggravated flight from an officer.]

Fourth, Batiste failed to take advantage of lenient sentences,

probationary sentences, and parole supervision . . . ; [and],

when [he] committed [the] instant federal crime, he was on

state parole following release from prison for distributing

cocaine. Fifth, even if his conviction for aggravated flight from

an officer is no longer a crime of violence under the

[Sentencing] Guidelines, it nonetheless involved a volitional

refusal to stop a vehicle “under circumstances wherein human

life is endangered.” La. Rev. Stat. 14:108.1(C). Indeed, the

PSR reflected that Batiste forced another vehicle off the street

and almost struck a pedestrian who was walking her dog.

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Responding to the government’s criticism of Batiste’s assertion that

he would not be a career offender if sentenced today, Batiste argued to the

district court:

[T]hat point is directly relevant to several of the

[§3553(a)] sentencing factors—his history and characteristics,

the kinds of sentences available, policy statements and

amendments to the [Sentencing] Guidelines, and the need to

avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.

It also is relevant to the [c]ourt’s consideration of the

underlying purposes of incarceration and, specifically, what

sentence will be “sufficient, but not greater than necessary” to

comply with those goals in [his] case. In other words, whether

[] Batiste is entitled to a recalculation of his Guidelines range

has no bearing on this [c]ourt’s ability to consider his current

career offender status in assessing the relevant § 3553(a)

factors—which the [g]overnment agrees the [c]ourt should

do—and determining an appropriate sentence reduction.

The district court denied Batiste’s motion. Although agreeing that

Batiste’s offense was a “covered offense” under the First Step Act, and the

120-month mandatory minimum applied, the court decided that a sentence

of 262 months, which was within the guidelines range of 262 to 327 months

of imprisonment, was appropriate.

On appeal, Batiste argues that (1) the district court misinterpreted

Hegwood as precluding consideration of the § 3553(a) factors during First

Step Act sentencings and preventing any downward departure or variance

from the guidelines range; (2) the district court failed to adequately explain

its sentencing decision; (3) the district court’s re-imposition of a 262-month

sentence resulted in a substantively unreasonable sentence; and (4) that the

district court failed to consider the guidelines range applicable to him if he

were sentenced today. Although Batiste notes his fourth issue is foreclosed

by Hegwood, he has raised it to preserve it for further review.

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A. Misinterpretation of Hegwood

Although acknowledging our decision in Hegwood—prohibiting a

“plenary resentencing” and any alteration of the relevant “legal landscape”

beyond the changes mandated by the Fair Sentencing Act—Batiste argues

that district courts are nevertheless required to consider the relevant

sentencing factors under § 3553(a) in deciding whether to reduce a

defendant’s sentence pursuant to section 404, and that the district court here

failed to do so. He contends that the district court instead misinterpreted

Hegwood as precluding consideration of the § 3553(a) factors, noting that the

district court did not mention those factors in its decision or otherwise

indicate that it considered them.

Batiste also argues that the district court misinterpreted Hegwood as

requiring the mandatory application of the career offender guidelines range.

In essence, he argues that the district court erroneously denied relief under

the First Step Act based on its inaccurate assumption that it lacked the

authority under Hegwood to vary downward below the unchanged guidelines

imprisonment range because the original sentence was at the bottom of that

guidelines range.

In the instant matter, the district court issued a six-page written order

and reasons in which it accurately describes Batiste’s request for a reduction

based on his post-sentencing conduct, the circumstances of the case, and the

§ 3553(a) sentencing factors. The district court’s ruling followed lengthy and

comprehensive briefing by the parties, including a reply memorandum from

Batiste, in which the parties’ arguments were thoroughly expressed and

analyzed. Significantly, in each of these submissions, there is no dispute

that—despite the “legal landscape” limits of Hegwood—the court should

consider all relevant § 3553(a) factors, including the defendant’s criminal

history, his post-conviction progress, and the sentencing options available to

the court.

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In its ruling, the district court stated that, in determining Batiste’s

sentence, it was “heeding the rule announced in Hegwood,” i.e., that it

“plac[e] 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.” Hegwood, 934 F.3d at 418. Denying Batiste’s request for a

sentence reduction, the district court explained its decision:

At the time of Batiste’s original sentencing, the

mandatory minimum was 240 months; however, the court

declined to sentence him to the mandatory minimum, instead

imposing a higher sentence, at the bottom of the Guidelines

range. While recognizing the interim changes in the law, and

acknowledging the progress Batiste appears to have made in

prison, the court observes that nothing has changed in the facts

that informed its original sentencing decision, including

Batiste’s criminal history and the fact that the predicate crime

of violence, aggravated flight from an officer, involved Batiste

forcing another vehicle off the street and almost striking a

pedestrian, clearly present[ed] a serious potential risk of

physical injury to another. See U.S.S.G. § 4B1.2(a)(2006).

Accordingly, the court, heeding the rule announced in

Hegwood, does not engage in a plenary resentencing, but

considers this sentence as if section two of the Fair Sentencing

Act of 2010 was in effect at the time of Batiste’s offense,

providing a 120 month statutory minimum for his crime. It does

not consider any other interim changes in the law, including the

revision to the career offender Guideline. Therefore, Batiste’s

Guideline Range is 262–327 months, and the court finds that a

sentence of 262 months is appropriate.

In its written ruling, the district court expressly acknowledges the

interim changes in the law, Hegwood, and Batiste’s progress. Significantly,

however, the court’s focus is on the facts informing its original sentencing

decision, particularly including Batiste’s criminal history and the serious risk

of physical injury presented by the crime of violence underlying Batiste’s

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career offender enhancement. The court acknowledges that it could have

imposed a lower sentence—the statutory minimum, rather than the bottom

of the guideline ranges—at Batiste’s original sentencing, but did not, and

emphasizes that nothing in those facts have changed.

Addressing Batiste’s criticism of the district court’s decision and

analysis, the government emphasizes that, while this court has not resolved

whether district courts must consider the § 3553(a) factors in section 404

proceedings, the written order reflects that the district court gave due

consideration to Batiste’s arguments in favor of a reduction in light of the

§ 3553(a) factors. The government also rejects Batiste’s argument that the

district court misinterpreted Hegwood, noting that the district court made no

statement indicating that it was required to apply a within-guidelines

sentence. As the court itself noted, the district judge had the opportunity to

depart at the time of the original sentence, subject to the statutory minimum,

but could not find a reason to do so. The government likewise emphasizes

that the district court did not suggest, in its November 2019 ruling, that it

wanted to reduce Batiste’s sentence below the career offender guidelines

range but thought itself legally barred from doing so.

The government’s observations are insightful and well-founded.

Indeed, we have never held that courts cannot grant relief under the First

Step Act where the Sentencing Guidelines imprisonment range remains

unchanged and the original sentence is within that range. In other words, we

have not held that a downward variance is not permitted in those

circumstances.

At any rate, we are not persuaded that any legal error occurred here in

the district court’s assessment of Batiste’s motion. We are not convinced

that the district court based its determination on an erroneous interpretation

of the First Step Act, Hegwood, or any of our other decisions interpreting the

statute. Instead, as we concluded in our recent decision in Carr, it is more

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plausible, on the record before us, that the district court, having evaluated all

pertinent factors, simply exercised its statutory discretion to deny the

motion. Furthermore, in Jackson, we found no abuse of discretion where the

original life sentence was within the current statutory range and the court

relied on the defendant’s criminal history and role in the offense in denying

a reduction. 945 F.3d at 321-22. We similarly find no abuse of discretion here.

B. Adequacy of Explanation

With respect to the adequacy of the district court’s reasons, Batiste

argues that the district court committed a significant procedural error by

failing to address his arguments in support of a reduced sentence of

imprisonment and failing to mention his request for a reduction of his term

of supervised release to the new statutory minimum term of eight years.

The government maintains that Batiste’s arguments regarding the

adequacy of the district court’s explanation of its ruling essentially amount

to a disagreement with the district court’s reasoning and, in any event, the

district court’s six-page written order, in which the court specifically noted

Batiste’s arguments, provides adequate reasons for its sentencing decision

relative to Batiste’s term of imprisonment. However, the government

concedes that the district court’s order did not address Batiste’s request for

a reduction of his term of supervised release and acknowledges that remand

may be appropriate.

On this record, we agree with the government’s assertion. As

discussed above, the basis of the district court’s ruling is aptly recounted in

its November 7, 2019 Order and Reasons. Accordingly, we reject Batiste’s

challenge to the sufficiency of the district court’s explanation of its denial of

Batiste’s requested reduction of his term of imprisonment. The district

court’s written order adequately reflects that it gave due consideration to

Batiste’s arguments in favor of a reduction of his sentence of imprisonment

based on the § 3553(a) factors and his post-conviction progress. In United

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States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009), we determined, in the

context of 18 U.S.C. § 3582(c)(2) motion, that the district court was not

required to provide reasons or explain its consideration of the § 3553(a)

factors, and that there was no abuse of discretion where the relevant

arguments were before the court when it made its resentencing

determination. On the record before us, we reach the same conclusion here.

However, as the parties note, the district court’s order did not address

Batiste’s request for a reduction of his term of supervised release. Batiste

was sentenced in 2007 to 10 years of supervised release, which was the

applicable minimum term of supervised release. Pursuant to the First Step

Act, the minimum term is now eight years.

The First Step Act eligibility information sheet did not mention the

term of supervised release, nor did any member of the screening committee

address the applicable term of supervised release. Nevertheless, Batiste’s

motion requested a reduction of the term, albeit without discussing the issue.

The government’s submission did not address the issue. Thus, on this

record, it is not clear whether the district court considered and implicitly

rejected Batiste’s request for a reduction of his term of supervised release, or

merely overlooked it. Accordingly, we will remand that issue to the district

court for consideration and disposition.

C. Substantive Reasonableness of Sentence

With respect to the substantive reasonableness of his sentence, Batiste

argues that the district court’s re-imposition of a 262-month sentence was

substantively unreasonable based on the totality of the circumstances of his

case, particularly his post-sentencing conduct, and represented a clear error

of judgment in balancing the § 3553(a) sentencing factors. The government

argues that this court should not conduct a substantive reasonableness review

of Batiste’s sentence. As noted by the government, we have held that the

bifurcated procedural soundness and substantive reasonableness review of

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sentencing decisions that is derived from United States v. Booker, 543 U.S.

220 (2005), and its progeny, is inapplicable in the context of § 3582(c)(2)

proceedings because they “do not constitute full resentencings.” See Evans,

587 F. 3d at 671–72.

Although we have noted some distinctions between First Step Act

sentence reduction motions and § 3582 motions, we also have found them

similar in other respects. Pertinent here, in adopting an abuse of discretion

standard of review for the discretionary component of a district court’s First

Step Act, section 404 determination, we analogized to the “abuse of

discretion” standard of review applicable to “decisions whether to reduce

sentences” pursuant to § 3582(c)(2). See Jackson, 945 F.3d at 322 and n.2.

A de novo standard of review likewise applies “to the extent the court’s

determination turns on the ‘meaning of a federal statute’ such as the [First

Step Act].” Jackson, 945 F.3d at 319 (quoting Hegwood, 934 F.3d at 417).

Given the foregoing, we similarly conclude the substantive reasonableness

standard does not apply here. And, as stated above, Batiste has not

demonstrated an abuse of discretion or legal error occurred.

D. Required Recalculation of Guidelines Range (foreclosed issue)

Batiste argues that the district court committed procedural error by

refusing to recalculate and apply the current non-career offender guidelines

range of 77 to 96 months imprisonment. The district court noted Batiste’s

argument, but, applying Hegwood, concluded that Batiste’s career offender

status is unchanged. Conceding that his argument is foreclosed by Hegwood,

Batiste raises the issue solely to preserve it for further review. Considering

Batiste’s concession and our decision in Hegwood, additional analysis of this

foreclosed issue is not required.

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VI.

As stated herein, we AFFIRM the district court’s denial of Batiste’s

motion seeking reduction of his sentence of imprisonment. Because it is not

apparent that the district court considered Batiste’s motion with respect to

his term of supervised release, we REMAND that aspect of this proceeding

to the district court for consideration and disposition.

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