United States v. Keon Leslie Phillips

USCA11 Case: 21-11475 Date Filed: 05/11/2022 Page: 1 of 11

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11475

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEON LESLIE PHILLIPS,

a.k.a. Ken Phillips,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 1:06-cr-00030-WLS-TQL-1

____________________

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2 Opinion of the Court 21-11475

Before JORDAN, NEWSOM, and MARCUS, Circuit Judges.

PER CURIAM:

Keon Leslie Phillips, a federal prisoner, appeals following the

district court’s denial of his motion to reduce his sentence pursuant

to § 404 of the First Step Act of 2018. 1 Phillips argues that the dis-

trict court abused its discretion by declining to reduce his sentence

without holding a hearing. After careful review, we affirm.

We review de novo whether a district court has the author-

ity to modify a term of imprisonment. United States v. Jones, 962

F.3d 1290, 1296 (11th Cir. 2020), cert. denied, 141 S. Ct. 2635 (2021).

We review the district court’s decision whether to reduce a defend-

ant’s sentence under the First Step Act for abuse of discretion. Id.

District courts have wide latitude to determine whether and how

to exercise their discretion, in the context of a First Step Act reduc-

tion. Id. at 1304. The district court abuses its discretion if it applies

an incorrect legal standard, follows improper procedures in making

the determination, or makes clearly erroneous factual findings.

United States v. Barrington, 648 F.3d 1178, 1194 (11th Cir. 2011). A

factual finding is clearly erroneous when, although there is evi-

dence to support it, the appellate court, based on the record as a

whole “is left with a definite and firm conviction that a mistake has

been committed.” Id. at 1195 (quotations omitted). A district court

1 Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (Dec. 21, 2018) (“First Step

Act”).

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21-11475 Opinion of the Court 3

also abuses its discretion when it commits a clear error of judg-

ment. United States v. Brown, 415 F.3d 1257, 1265 (11th Cir. 2005).

Generally, we review arguments not raised before the dis-

trict court only for plain error. United States v. Lange, 862 F.3d

1290, 1293 (11th Cir. 2017). To establish plain error, the defendant

must show (1) an error, (2) that is plain, and (3) that affected his

substantial rights. United States v. Turner, 474 F.3d 1265, 1276

(11th Cir. 2007). If the defendant satisfies these conditions, we may

exercise our discretion to recognize the error only if it seriously af-

fects the fairness, integrity, or public reputation of judicial proceed-

ings. Id.

A district court has no inherent authority to modify a de-

fendant’s sentence and may do so “only when authorized by a stat-

ute or rule.” United States v. Puentes, 803 F.3d 597, 606 (11th Cir.

2015). The First Step Act expressly permits district courts to reduce

a previously imposed term of imprisonment. Jones, 962 F.3d at

1297. The First Step Act is a “self-contained, self-executing, inde-

pendent grant of authority empowering district courts to modify

criminal sentences in the circumstances to which the Act applies.”

United States v. Edwards, 997 F.3d 1115, 1118 (11th Cir. 2021), cert.

denied, 142 S. Ct. 509 (2021).

Before the First Step Act, however, Congress enacted the

Fair Sentencing Act, which amended 21 U.S.C. §§ 841(b)(1) to re-

duce the sentencing disparity between crack and powder cocaine.

Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372

(“Fair Sentencing Act”); see also Dorsey v. United States, 567 U.S.

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4 Opinion of the Court 21-11475

260, 268–69 (2012) (detailing the history that led to the enactment

of the Fair Sentencing Act). The Fair Sentencing Act increased the

§ 841(b) drug amounts triggering the statutory penalties under

§ 841(b)(1)(B) from 5 to 28 grams or more of crack cocaine. Fair

Sentencing Act, § 2(a); 21 U.S.C. § 841(b)(1)(B).

The First Step Act of 2018 then made retroactive the statu-

tory penalties for covered offenses enacted under the Fair Sentenc-

ing Act. First Step Act § 404. Under § 404(a), “the term ‘covered

offense’ means a violation of a Federal criminal statute, the statu-

tory penalties for which were modified by section 2 or 3 of the Fair

Sentencing Act of 2010, that was committed before August 3,

2010.” Id. § 404(a) (citation omitted). Under § 404(b) of the First

Step Act, a court “that imposed a sentence for a covered offense

may . . . impose a reduced sentence as if sections 2 and 3 of the Fair

Sentencing Act . . . were in effect at the time the covered offense

was committed.” Id. § 404(b). The First Step Act adds that

“[n]othing in this section shall be construed to require a court to

reduce any sentence pursuant to this section.” Id. § 404(c).

In United States v. Denson, we held that the First Step Act

does not authorize a district court to conduct a plenary or de novo

resentencing or to reconsider sentencing guideline calculations un-

affected by sections 2 and 3 of the Fair Sentencing Act, reduce the

defendant’s sentence on the covered offense based on changes in

the law beyond those mandated by sections 2 and 3 of the Fair Sen-

tencing Act, or change or reduce the defendant’s sentences on

counts that are not covered offenses. 963 F.3d 1080, 1089 (11th Cir.

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21-11475 Opinion of the Court 5

2020). We explained that the plain text of the First Step Act does

not give a defendant seeking a reduction a right to attend a hearing,

since “the First Step Act does not mention, let alone mandate, a

hearing.” Id. at 1086–87 (quotations omitted). We added that a

defendant’s presence at a hearing is not required under Fed. R.

Crim. P. 43 in sentence reduction proceedings and that where Rule

43 does not require a defendant’s presence, there is no due process

concern. Id. at 1087–88. We concluded that “a sentencing modifi-

cation under the First Step Act does not qualify as a critical stage in

the proceedings that requires the defendant’s presence.” Id. at 1089

(quotations omitted). Citing Denson, we later held that a district

court is not required to guarantee a defendant’s presence at a hear-

ing before reducing his sentence under the First Step Act, these sen-

tence reductions are left completely to the district court’s sound

discretion, and no further “procedural hoops” are imposed. Telcy

v. United States, 20 F.4th 735, 745 (11th Cir. 2021), petition for cert.

filed, No. 21-7471 (U.S. Mar. 25, 2022).

Although a district court may have the authority to reduce

a sentence under Section 404 of the First Step Act, it is not required

to do so. Jones, 962 F.3d at 1304. A district court has wide latitude

to determine whether and how to exercise its discretion and may

consider the § 3553(a) factors. Id. The district court, however, is

not required to consider the § 3553(a) factors when it exercises its

discretion to reduce a sentence under § 404 of the First Step Act.

United States v. Stevens, 997 F.3d 1307, 1316 (11th Cir. 2021). But

the district court’s decision must allow for meaningful appellate

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6 Opinion of the Court 21-11475

review, just as in the initial sentencing context. Id. at 1311. The

court’s explanation need not be lengthy as long as it makes clear

that it had a reasoned basis for choosing to reduce or not to reduce

a defendant’s sentence under the First Step Act. Id. at 1317. How

much explanation is required in an order on a motion for a sen-

tence reduction depends on the circumstances of a particular case.

United States v. Potts, 997 F.3d 1142, 1145–46 (11th Cir.), petition

for cert. filed, No. 21-6007 (U.S. Oct. 19, 2021). In Potts, we noted

that an explanation may be sufficient if the district court relied on

the record, while making clear that it considered the parties’ argu-

ments and the § 3553(a) factors, among other things. Id.

Even in circumstances where the consideration of the

§ 3553(a) factors is mandatory, the district court need not state on

the record that it has explicitly considered each of the § 3553(a) fac-

tors nor discuss each of the § 3553(a) factors. United States v.

Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). Moreover, the

weight given to any of the § 3553(a) factors is committed to the

sound discretion of the district court. United States v. Croteau, 819

F.3d 1293, 1309 (11th Cir. 2016).

Under § 3553(a), a district court’s sentence must be suffi-

cient, but not greater than necessary, to achieve the goals of sen-

tencing: reflecting the seriousness of the offense, promoting re-

spect for the law, providing just punishment, deterring future crim-

inal conduct, protecting the public, and providing the defendant

with any needed training or treatment. 18 U.S.C. § 3553(a). Sec-

tion 3553(a) also requires district courts to consider the nature and

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21-11475 Opinion of the Court 7

circumstances of the offense, the defendant’s history and character-

istics, the kinds of sentences available, the Sentencing Guidelines,

any pertinent policy statement, the need to avoid disparate sen-

tences for defendants with similar records, and the need to provide

restitution to any victims. Id.

“No limitation shall be placed on the information concern-

ing the background, character, and conduct of a person convicted

of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.” 18

U.S.C. § 3661. A sentencing court may consider any information

regardless of its admissibility at trial as long as it has sufficient indi-

cia of reliability, the court makes explicit findings of fact as to its

credibility, and the defendant has a chance to rebut the evidence.

United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). A

defendant has a due process right not to be sentenced based on false

or unreliable information. Id. To prevail on a sentencing challenge

based on unreliable evidence, a defendant must show “(1) that the

challenged evidence is materially false or unreliable and (2) that it

actually served as the basis for the sentence.” Id. (addressing de-

fendant’s argument that double hearsay testimony of two felons

lacked sufficient indicia of reliability).

Here, the district court did not abuse its discretion by deny-

ing Phillips’s motion to reduce his sentence under the First Step

Act. For starters, our Court in Denson made it clear that a district

court is not required to hold a hearing in these circumstances. 982

F.3d at 1086-87, 1089 (holding that the First Step Act does not

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8 Opinion of the Court 21-11475

authorize a district court to conduct a plenary resentencing and

that the Act does not mandate a hearing). As we explained in Den-

son, neither Fed. R. Crim. P. 43 nor the Due Process Clause re-

quires a defendant’s presence at a sentence reduction hearing since

a sentence reduction is not a critical stage in a criminal proceeding

and the lack of a hearing does not violate a defendant’s due process

rights. Id. at 1087–89. And contrary to Phillips’s suggestion, Den-

son’s holdings concerning the discretionary nature of First Step Act

hearings are not dicta. See Telcy, 20 F.4th at 744–45 (citing Denson

and stating that First Step Act reductions are left completely to the

discretion of the district court and no further “procedural hoops”

are imposed).

Moreover, the record reflects that the district court ad-

dressed the merits of Phillips’s motion without a hearing after ob-

serving that it had reviewed what Phillips expected to present at a

live resentencing; that it had given Phillips an “ample opportunity”

to submit evidence and arguments, including extensive briefing

and supplemental information in support of his motions; and that

there was sufficient information in the record and Phillips’s mo-

tion, as well as a memorandum from the probation office. Despite

this substantial record, Phillips claims that the district court should

have held a hearing to resolve the parties’ dispute about a phone

call that had been recorded in jail between Phillips and another

drug dealer -- a call in which Phillips and his associate discussed

what his role would be when he was released. Importantly, how-

ever, the district court declined to consider the aspects of the call

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21-11475 Opinion of the Court 9

that were in dispute. Thus, because the district court did not con-

sider the disputed portions of the phone call, because it considered

the remaining information in the extensive record -- including what

Phillips expected to present at a hearing -- and because it had wide

latitude in ruling on a sentence reduction motion, the district court

did not abuse its discretion in ruling on Phillips’s motion without

conducting a resentencing hearing. See Jones, 962 F.3d at 1304;

Denson, 963 F.3d at 1086-87; Telcy, 20 F.4th at 745.

As for Phillips’s claim that due process required the govern-

ment to prove any disputed fact by a preponderance of the evi-

dence, Phillips had notice that the government intended to rely on

the phone call, and the district court gave Phillips ample oppor-

tunity to refute it. Further, Phillips cannot show that the interpre-

tation of the phone call served as a basis for his sentence. Ghertler,

605 F.3d at 1269. As a result, he cannot establish a due process vi-

olation based on a claim of false or unreliable information concern-

ing disputed interpretation of the proffered phone call. Id.

What’s more, as our case law has long established, the dis-

trict court had wide latitude to determine whether to reduce Phil-

lips’s sentence and could consider any relevant factors in making

that determination. Jones, 962 F.3d at 1304; see also 18 U.S.C. §

3661. Although Phillips argues that the district court should not

have considered the proffered phone call at all, the district court

correctly noted that Phillips did not dispute the fact that the call

took place, that it was with a person who engaged in and was con-

victed of illegal drug sales, or that Phillips’s role in the gang was

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10 Opinion of the Court 21-11475

discussed. Based on these undisputed facts alone, the district court

did not clearly err in finding that Phillips had not cut ties with his

past. See Barrington, 648 F.3d at 1195. This is especially true since

Phillips did not challenge the fact of the call or his participation in

it before the district court or in his initial appellate brief.

In any event, the district court considered several other fac-

tors -- in addition to Phillips’s jailhouse phone call -- when it de-

cided not to reduce Phillips’s sentence. As the record reveals, the

district court considered the § 3553(a) factors in its sentence reduc-

tion determination, even though it was not required to do so. Ste-

vens, 997 F.3d at 1310-11. In particular, it considered Phillips’s

criminal history as the most important factor, finding that it in-

volved many violent offenses and that there was an “alarming pos-

sibility” that Phillips would be a danger to society if released. 18

U.S.C. § 3553(a)(1)-(2). Indeed, Phillips’s history, including his vio-

lent offenses of armed robbery, assault, battery, and cruelty to chil-

dren, was detailed in his presentence investigation report (“PSI”),

which the district court considered and accepted. The district court

also was concerned about Phillips’s likelihood of recidivism, noting

his disciplinary history while incarcerated, his “evasive and ob-

structionist conduct,” as well as the recorded jail call between Phil-

lips and the drug dealer. And while the district court considered

Phillips’s efforts at rehabilitation and commended him on the many

hours of educational programming he had completed, it found that

these factors did not outweigh its concerns about his history and

likelihood of recidivism. As we’ve said many times, the weight

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21-11475 Opinion of the Court 11

assigned to each of the § 3553(a) factors -- even when their consid-

eration is mandatory -- is committed to the district court’s discre-

tion. See Croteau, 819 F.3d at 1309. On this record, the district

court did not abuse its discretion in denying Phillips a sentence re-

duction.

AFFIRMED.