United States v. Richard Daniel

USCA11 Case: 23-11495 Document: 24-1 Date Filed: 10/31/2023 Page: 1 of 6

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11495

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD DANIEL,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:02-cr-20676-CMA-2

____________________

USCA11 Case: 23-11495 Document: 24-1 Date Filed: 10/31/2023 Page: 2 of 6

2 Opinion of the Court 23-11495

Before ROSENBAUM, GRANT, and LAGOA, Circuit Judges

PER CURIAM:

Richard Daniel appeals the district court’s order denying his

motion to reduce his sentence under § 404(b) of the First Step Act

of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”), as to his

convictions for conspiracy to deal in firearms, distribution of mari-

juana, and possession of a firearm in furtherance of a drug traffick-

ing crime. The government moved for summary affirmance, argu-

ing that the court properly denied the motion as to those offenses

because they were not covered offenses and any argument that the

district court had discretion to reduce his sentence on non-covered

offenses is foreclosed by United States v. Denson, 963 F.3d 1080 (11th

Cir. 2020), and United States v. Files, 63 F.4th 920 (11th Cir. 2023), pet.

for cert. filed, No. 22-1239 (U.S. June 26, 2023).

Summary disposition is appropriate either where time is of

the essence, such as “situations where important public policy is-

sues are involved or those where rights delayed are rights denied,”

or where “the position of one of the parties is clearly right as a

matter of law so that there can be no substantial question as to the

outcome of the case, or where, as is more frequently the case, the

appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,

1162 (5th Cir. 1969).

The Fair Sentencing Act, enacted on August 3, 2010,

amended 21 U.S.C. § 841(b)(1) to reduce the sentencing disparity

between crack and powder cocaine. Fair Sentencing Act; see Dorsey

USCA11 Case: 23-11495 Document: 24-1 Date Filed: 10/31/2023 Page: 3 of 6

23-11495 Opinion of the Court 3

v. United States, 567 U.S. 260, 268-69 (2012) (detailing the history that

led to the enactment of the Fair Sentencing Act, including the Sen-

tencing Commission’s criticisms that the disparity between crack

and powder cocaine offenses was disproportional and reflected

race-based differences). Specifically, § 2(a)(1) raised the quantity of

crack cocaine necessary to trigger a 10-year mandatory minimum

sentence from 50 to 280 grams, and § 2(a)(2) raised the quantity

threshold to trigger a 5-year mandatory minimum from 5 grams to

28 grams. Fair Sentencing Act § 2(a)(1)–(2); 21 U.S.C.

§ 841(b)(1)(A)(iii), (B)(iii). These amendments were not made ret-

roactive to defendants who were sentenced before the enactment

of the Fair Sentencing Act. United States v. Berry, 701 F.3d 374, 377

(11th Cir. 2012).

In 2018, Congress enacted the First Step Act, which made

retroactive for “covered offenses” the statutory penalties enacted

under the Fair Sentencing Act. See First Step Act § 404. 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 sec-

tions 2 and 3 of the Fair Sentencing Act . . . were in effect at the

time the covered offense was committed.” Id. § 404(b). The statute

defines “covered offense” as “a violation of a Federal criminal stat-

ute, the statutory penalties for which were modified by section 2 or

3 of the Fair Sentencing Act . . . that was committed before August

3, 2010.” Id. § 404(a). The First Step Act adds that “[n]o court shall

entertain a motion” under § 404 for a sentence that “was previously

imposed or previously reduced in accordance with” sections 2 and

3 of the Fair Sentencing Act, or “if a previous motion made under

USCA11 Case: 23-11495 Document: 24-1 Date Filed: 10/31/2023 Page: 4 of 6

4 Opinion of the Court 23-11495

this section . . . was . . . denied after a complete review of the mo-

tion on the merits.” Id. § 404(c).

In Denson, we concluded, as our main holding, “that the First

Step Act does not require district courts to hold a hearing with the

defendant present before ruling on a defendant’s motion for a re-

duced sentence under the Act.” 963 F.3d at 1082. As an alternate

and independent holding, we concluded that a sentencing modifi-

cation under the First Step Act is not a critical stage in the proceed-

ings under the two-part test in United States v. Brown, 879 F.3d 1231

(11th Cir. 2018), contrary to Denson’s arguments on appeal. Id. at

1088–89. We concluded that the First Step Act does not authorize

a plenary resentencing and instead “is a limited remedy.” Id. at

1089. In so concluding, we reasoned that a district court may “re-

duce a defendant’s sentence only on a covered offense and only as

if sections 2 and 3 of the Fair Sentencing Act were in effect when

he committed the covered offense.” Id. (quotation marks omitted).

We also reasoned that a district court is not free to: (1) recalculate

the defendant’s original Guidelines calculations unaffected by sec-

tions 2 and 3; (2) reduce the defendant’s sentence on the covered

offense based on other changes in the law; or (3) reduce the defend-

ant’s sentences on non-covered offenses. Id. We also referenced

the idea that a § 404(b) motion was a § 3582(c)(1)(B) proceeding.

Id. at 1088.

The Supreme Court held in Concepcion v. United States that

sentencing courts may consider intervening changes of law or fact

in adjudicating a First Step Act motion. 142 S. Ct. 2389, 2396 (2022).

USCA11 Case: 23-11495 Document: 24-1 Date Filed: 10/31/2023 Page: 5 of 6

23-11495 Opinion of the Court 5

The Supreme Court stated that, while courts must consider these

arguments when raised by the parties, whether to reduce the de-

fendant’s sentence remains within their sound discretion. Id. The

Court explained that sentencing courts have historically had wide

latitude to consider any information relevant to understanding a

defendant’s individual circumstances, and “[n]othing in the text and

structure of the First Step Act expressly, or even implicitly, over-

comes the established tradition of district court’s sentencing discre-

tion.” Id. at 2401. In so holding, the Supreme Court overruled our

prior holding in Denson that a court cannot reduce a defendant’s

sentence based on changes in the law beyond those mandated by

the Fair Sentencing Act. Id. at 2398 n.2 (citing Denson, 963 F.3d at

1089).

In Files, we recently explained that Concepcion abrogated as-

pects of Denson regarding whether a court adjudicating a First Step

Act motion could consider changes in law unrelated to those spec-

ified in the Fair Sentencing Act but that Concepcion did not abrogate

Denson’s holding that a court could not reduce defendants’ sen-

tences for non-covered offenses. 63 F.4th at 930–31. We also ex-

plained that the Supreme Court’s discussion in Concepcion per-

tained to the absence of limitations by Congress on how a district

court exercises its discretion in reducing a defendant’s sentence, not

its authority to do so in the first place. Id. at 931. We confirmed

that a district court can consistently apply “Denson’s holding limit-

ing the categories of sentences that can be reduced and Concepcion’s

holding empowering courts to exercise broad discretion in impos-

ing reduced sentences for those qualifying offenses.” Id.

USCA11 Case: 23-11495 Document: 24-1 Date Filed: 10/31/2023 Page: 6 of 6

6 Opinion of the Court 23-11495

Under the prior panel precedent rule, “a prior panel’s hold-

ing is binding on all subsequent panels unless and until it is over-

ruled or undermined to the point of abrogation by the Supreme

Court or this [C]ourt sitting en banc.” United States v. Dudley, 5 F.4th

1249, 1265 (11th Cir. 2021) (quotation marks omitted).

We thus conclude that summary affirmance is warranted

here because the government’s position is correct as a matter of

law. Groendyke Transp., 406 F.2d at 1162. Notably, Daniel does not

dispute that the offenses are non-covered offenses. As such, Dan-

iel’s arguments are foreclosed by this Court’s prior precedent in

Denson and Files. Denson, 963 F.3d at 1088–89; Files, 63 F.4th at 930–

31; Dudley, 5 F.4th at 1265. Further, any argument that Concepcion

abrogated Denson is foreclosed by Files. Files, 63 F.4th at 930–31.

Other than Concepcion, Daniel does not point to any case from this

Court or the Supreme Court that abrogated Denson and Files. Dud-

ley, 5 F.4th at 1265.

Because the government’s position is correct as a matter of

law, we GRANT the government’s motion for summary affirmance

and affirm the district’s order denying Daniel’s motion to reduce

his sentence under § 404(b) of the First Step Act. Groendyke Transp.,

406 F.2d at 1162.

AFFIRMED.