Amicus Curiae Brief — Eddie Houston, Jr., Petitioner v. United States
Supreme Court briefMay 21, 2021
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No. 20-1479
IN THE
Supreme Court of the United States
EDDIE HOUSTON, JR.,
v.
UNITED STATES,
Petitioner,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
BRIEF AMICUS CURIAE OF NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS IN SUPPORT OF PETITIONER
JEFFREY T. GREEN
Co-Chair, NACDL Amicus
Committee
1660 L Street, N.W.
Washington, DC 20036
CUAUHTEMOC ORTEGA
Federal Public Defender
BRIANNA FULLER MIRCHEFF*
GIA KIM
Deputy Federal Public
Defenders
321 East Second Street
Los Angeles, CA 90012
(213) 894-2854
Brianna_Mircheff@fd.org
*Counsel of Record
i
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE ......................... 1
SUMMARY OF ARGUMENT.................................. 2
ARGUMENT ............................................................ 3
A. TIMELY RESOLUTION OF THE
QUESTION PRESENTED IS OF GREAT
PRACTICAL IMPORTANCE TO FIRST
STEP ACT MOVANTS. ...................................... 3
1. Appellate-court decisions remanding
for consideration of the § 3553(a)
factors have resulted in significantly
reduced sentences. ................................... 4
2. The temporal gap between the
original sentencing and First Step Act
proceedings underscores the
importance of an updated § 3553(a)
analysis. ................................................ 17
3. In light of the very real possibility
that renewed § 3553(a) consideration
results in lower sentences, the Court
must intervene now. .............................. 24
CONCLUSION ....................................................... 26
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Chavez-Meza v. United States,
138 S. Ct. 1959 (2018)....................................... 21
Dorsey v. United States,
567 U.S. 260 (2012)........................................5, 17
Gall v. United States,
552 U.S. 38 (2007)............................................. 12
Pepper v. United States,
562 U.S. 476 (2011)........................................... 17
Rita v. United States,
551 U.S. 338 (2007)........................................... 12
United States v. Armstead,
2021 WL 267825 (D.S.C. Jan 27,
2021) .................................................................... 8
United States v. Badger,
2021 WL 248582 (D.S.C. Jan. 26,
2021) .................................................................... 9
United States v. Ballard,
No. 04-81-H (E.D.N.C. May 4,
2021) .................................................................... 8
United States v. Boulding,
960 F.3d 774 (6th Cir. 2020) .............................. 9
iii
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Brown,
2020 WL 6482397 (D.S.C. Nov. 4,
2020) .................................................................... 9
United States v. Brown,
974 F.3d 1137 (10th Cir. 2020)......................... 14
United States v. Burrell,
2020 WL 5014783 (E.D.N.Y. Aug.
25, 2020) ............................................................ 22
United States v. Chambers,
956 F.3d 667 (4th Cir. 2020) .............................. 4
United States v. Davey,
No. 02-201-H (E.D.N.C. May 6,
2021) .................................................................... 8
United States v. Eggersdorf,
126 F.3d 1318 (11th Cir. 1997)......................... 21
United States v. Holloway,
956 F.3d 660 (2d Cir. 2020) .............................. 22
United States v. Knight,
2021 WL 266341 (W.D. Pa. Jan. 27,
2021) .......................................................19, 20, 21
United States v. Latham,
809 F. App’x 320 (6th Cir. 2020) .............9, 10, 11
iv
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Latham,
No. 07-209-PLM (W.D. Mich. June
24, 2019) ............................................................ 11
United States v. Latham,
No. 07-209-PLM (W.D. Mich. Jan.
14, 2021) ............................................................ 12
United States v. Mannie,
971 F.3d 1145 (10th Cir. 2020)......................... 15
United States v. McDonald,
986 F.3d 402 (4th Cir. 2021) .............................. 5
United States v. McDonald,
No. 03-29-H (E.D.N.C. May 6,
2021) .................................................................... 8
United States v. Merrick,
No. 94-163-RBS-19 (E.D. Va. Nov.
6, 2020) .............................................................. 17
United States v. Olvis,
828 F. App’x 181 (4th Cir. 2020) ........................ 6
United States v. Olvis,
No. 95-38-RGD (E.D. Va. Dec. 9,
2014) .................................................................... 5
v
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Olvis,
No. 95-38-RGD (E.D. Va. May 1,
2019) ................................................................ 5, 6
United States v. Olvis,
No. 95-38-RGD (E.D. Va. Apr. 23,
2021) .................................................................... 8
United States v. Patterson,
2020 WL 5370953 (W.D.N.C. Sept.
8, 2020) ................................................................ 9
United States v. Richardson,
807 F. App’x 264 (4th Cir. 2020) ...................... 25
United States v. Richardson,
No. 05-40-GMG (N.D. W. Va. June
24, 2020) ............................................................ 25
United States v. Robertson,
837 F. App’x 639 (10th Cir. 2020) ...............14, 15
United States v. Robertson,
No. 07-56-C-1 (Jan. 16, 2020) ........................... 14
United States v. Robertson,
No. 07-56-C-1 (Mar. 4, 2021) ............................ 16
United States v. Shaw,
957 F.3d 734 (7th Cir. 2020) ............................ 18
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
United States v. Smith,
959 F.3d 701 (6th Cir. 2020) .............................. 9
United States v. Welch,
2020 WL 6389830 (N.D. Ala. Oct.
30, 2020) .......................................................18, 19
United States v. White,
984 F.3d 76 (D.C. Cir. 2020) ............................. 26
Statutes and Rules
18 U.S.C. § 924 ....................................................... 13
18 U.S.C. § 3553 .............................................. passim
First Step Act, Pub. L. 115-391,
132 Stat. 5194 (2018) ................................. passim
Supreme Court Rule 37.6 ........................................ 1
Other Authorities
U.S. Sentencing Comm’n, First Step
Act of 2018 Resentencing
Provisions Retroactivity Data
Report (May 2021) .............................................. 4
INTEREST OF AMICUS CURIAE
The National Association of Criminal Defense
Lawyers (“NACDL”) is a nonprofit voluntary
professional bar association that works on behalf of
criminal defense attorneys to ensure justice and due
process for those accused of crime or misconduct.
NACDL was founded in 1958 and has a nationwide
membership of many thousands of direct members and
up to 40,000 members when affiliates are included.
NACDL’s members include private criminal defense
lawyers, public defenders, military defense counsel,
law professors, and judges. NACDL is the only
nationwide professional bar association for public
defenders and private criminal defense lawyers.
NACDL is dedicated to advancing the proper, efficient,
and just administration of justice. Each year, NACDL
files numerous briefs as amicus curiae in the United
States Supreme Court and other federal and state
courts, seeking to provide amicus assistance in cases
that present issues of broad importance to criminal
defendants, criminal defense lawyers, and the criminal
justice system as a whole. 1
1 Pursuant to Rule 37.6, amicus curiae affirms that no
counsel for a party authored this brief in whole or in part and
that no person other than amicus or its counsel has made any
monetary contributions intended to fund the preparation or
submission of this brief. The parties have consented to the
filing of this brief.
2
SUMMARY OF ARGUMENT
Whether a district court must address the
sentencing factors in 18 U.S.C. § 3553(a) in ruling on
motions brought under § 404 of the First Step Act is
a question with real-world implications. A survey of
cases in which sentencing courts have been ordered
to consider the § 3553(a) factors in First Step Act
proceedings, or have elected to exercise their
discretion within that well-established framework,
reveals that such consideration produces richer,
more multifaceted decisions that promote appellate
review and public trust.
First Step Act cases remanded by the courts of
appeal with instructions to undertake or more fully
explain a § 3553(a) analysis strikingly illustrate this
phenomenon. On remand, a court’s heightened
attention to the § 3553(a) factors, particularly postsentencing rehabilitation, not infrequently forms
the basis for a much lower sentence. But at present,
such
remands—and
hence,
such
required
consideration—are unevenly distributed on the
basis of geography.
By definition, defendants who are eligible for
First Step Act relief are serving long sentences for
crack-cocaine
sentences
imposed
under
a
superseded legal regime. Often, the judge presiding
over the First Step Act motion is not the same judge
who imposed the initial sentence. Nevertheless, only
litigants in the Third, Fourth, and Sixth Circuits are
guaranteed renewed consideration of the § 3553(a)
factors. Eligible defendants fortunate enough to be
sentenced in one of those circuits, or by a district
3
court that regards the § 3553(a) factors as
mandatory despite the absence of controlling
authority, may well benefit from presenting
evidence of post-sentencing developments. Others,
like petitioner Eddie Houston, Jr., get procedural
short shrift.
The familiar § 3553(a) framework is flexible
enough to account for developments in the law and
in a defendant’s personal circumstances. Yet it is
also firm enough to ensure that a statute designed
to remedy crack-powder disparity does not create
new, unintended geographical disparities. This
Court should intervene now to resolve the circuit
split as to whether district courts must consider the
§ 3553(a) factors, before additional eligible
defendants are deprived of this crucial procedural
opportunity or end up overserving their sentences.
ARGUMENT
A. Timely Resolution of the Question
Presented Is of Great Practical
Importance
to
First
Step
Act
Movants.
NACDL agrees with Mr. Houston that the
question of whether a district court must consider
the § 3553(a) factors is extremely important.
Defendants in circuits where such consideration is
required, and defendants resentenced by district
courts that have undertaken § 3553(a) analysis of
4
their own accord, have received dramatic sentence
reductions on the basis of § 3553(a) factors alone. 2
1. Appellate-court decisions remanding
for consideration of the § 3553(a)
factors have resulted in significantly
reduced sentences.
The difference between permitting district courts
to consider the § 3553(a) factors in First Step Act
proceedings, and requiring them to do so, is not
merely theoretical. Making § 3553(a) consideration
and explanation mandatory results in meaningful
sentence reductions. Here, NACDL highlights a
handful of the many First Step Act cases in which
the § 3553(a) factors played a make-or-break role.
*****
The Fourth Circuit is one of the courts of appeal
that requires district courts to apply the § 3553(a)
sentencing factors in proceedings under § 404 of the
First Step Act. See United States v. Chambers, 956
F.3d 667, 674 (4th Cir. 2020) (agreeing with
government’s concession that § 3553(a) factors apply
in § 404 context). Relatedly, the Fourth Circuit has
held that a district court may vary from the
Guidelines range in a § 404 resentencing, and may
also consider a defendant’s post-sentencing conduct.
Id. In the wake of Chambers, the Fourth Circuit
remanded a number of cases for consideration and
explanation of § 3553(a) factors, such as post2 The average First Step Act reduction is 72 months. U.S.
Sentencing Comm’n, First Step Act of 2018 Resentencing
Provisions Retroactivity Data Report tbl.6 (May 2021).
5
sentencing conduct. See, e.g., United States v.
McDonald, 986 F.3d 402, 411–12 (4th Cir. 2021)
(vacating and remanding sentences in three
separate cases due to district court’s failure to
explain rejection of mitigating post-sentencing
evidence).
Anthony Olvis benefited from one of those
remands. In 1997, at age 22, Mr. Olvis was
sentenced to 460 months of imprisonment following
convictions for crack cocaine, firearms, and money
laundering offenses. United States v. Olvis, No. 9538-RGD, ECF 342 at 2–3 (E.D. Va. Mar. 12, 2021).
Thus, he was sentenced well before the Fair
Sentencing Act’s effective date of August 3, 2010,
and was therefore ineligible to seek resentencing
under that statute’s new, lowered penalties for crack
cocaine. See Dorsey v. United States, 567 U.S. 260,
280–81 (2012). In 2014, the district court reduced
Mr. Olvis’s sentence to 404 months, based on a
retroactive amendment to the Sentencing
Guidelines. United States v. Olvis, No. 95-38-RGD,
ECF 297 (E.D. Va. Dec. 9, 2014).
Shortly after passage of the First Step Act, Mr.
Olvis filed a pro se motion requesting application of
the Fair Sentencing Act’s penalties and appointment
of counsel. United States v. Olvis, No. 95-38-RGD,
ECF 319 (E.D. Va. Feb. 22, 2019). Without receiving
input from the government, the district court denied
the motion. United States v. Olvis, No. 95-38-RGD,
ECF 320 (E.D. Va. May 1, 2019). The district court
concluded that Mr. Olvis had two covered offenses
and was therefore eligible for a sentence reduction
under the First Step Act. Id. at 4. But it “decline[d]
6
to exercise its discretion” to reduce Mr. Olvis’s
sentence because the sentence for one covered
offense (344 months) fell under the new 40-year
statutory maximum, a reduction on the other
covered offense would not affect the total prison
term, and the advisory Guidelines range had not
changed. Id. at 5.
Mr. Olvis filed motions for reconsiderations, in
which he argued that the district court should
consider the § 3553(a) factors and impose a lower
sentence on both covered offenses based on his postsentencing rehabilitation. United States v. Olvis,
828 F. App’x 181, 181–82 (4th Cir. 2020) (per
curiam). The district court dismissed those motions
without prejudice. Id.
The Fourth Circuit reversed the First Step Act
denial. Id. at 182. It noted that the district court had
ruled without the benefit of Chambers, which held
that the § 3553(a) factors apply in a First Step Act
resentencing, and that a district court may vary
from the Guidelines range to account for postsentencing conduct. Id. Accordingly, the Fourth
Circuit vacated the denial order and remanded for
the district court “to address Olvis’s arguments in
light of Chambers.” Id.
On remand, Mr. Olvis, now assisted by counsel,
filed a supplemental memorandum and exhibits
elaborating on his post-conviction rehabilitation. He
noted that he had not incurred a single disciplinary
infraction in more than twenty-five years in custody,
had earned his GED and completed substantial
coursework, served the prison community by
7
becoming a GED tutor and trained observer in the
BOP’s Suicide Prevention Program, and received
enthusiastic letters of recommendation from BOP
staff members for his work ethic and attitude.
United States v. Olvis, No. 95-38-RGD, ECF 342 at
11–13 (E.D. Va. Mar. 12, 2021). Mr. Olvis had also
accepted responsibility for his actions, maintained
family ties despite his long incarceration, and
rebuilt his relationship with his father. Id. at 14–15,
19–20.
In addition to providing the court with this up-todate picture of his “history and characteristics,” 18
U.S.C. § 3553(a)(1), Mr. Olvis stressed the § 3553(a)
factor of “avoid[ing] unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct.” 18
U.S.C. § 3553(a)(6). To that end, he presented the
district court with ten cases where defendants with
similar criminal histories and convictions for similar
conduct had received significant sentence reductions
under the First Step Act. Id. at 15–19.
The government, asked to weigh in on the
§ 3553(a) factors for the first time, agreed with the
requested sentence of time served after conducting a
searching review of Mr. Olvis’s record. United States
v. Olvis, No. 95-38-RGD, ECF 343 at 2 (E.D. Va.
Mar. 24, 2021). While noting the serious nature of
the offenses of conviction, the government concluded
that Mr. Olvis had “redeemed himself.” Id. In
particular, the government lauded Mr. Olvis’s
“determined
approach
to
post-conviction
rehabilitation,” “spotless disciplinary record,” and
“thorough Re-entry Plan.” Id.
8
Upon reviewing the § 3553(a) factors, the district
court reduced Mr. Olvis’s 404-month sentence.
United States v. Olvis, No. 95-38-RGD, ECF 344
(E.D. Va. Apr. 23, 2021). In doing so, it relied heavily
on Mr. Olvis’s “exemplary” post-sentencing conduct
and personal growth while incarcerated: his pursuit
of educational opportunities, his sterling work
history, and his clean disciplinary record. Id. at 8.
The district court also emphasized Mr. Olvis’s family
support and noted his argument about unwarranted
sentence disparities. Id. Ultimately, the district
court concluded that the § 3553(a) factors warranted
a reduction to 240 months, considerably below the
approximately 325 months he had already served.
Id. at 9.
Had the Fourth Circuit not remanded for
consideration of the § 3553(a) factors, including postsentencing conduct, Mr. Olvis would still be serving
the 404-month sentence. 3
3 Although the magnitude of Mr. Olvis’s sentence reduction
is notable, other defendants whose cases were remanded by the
Fourth Circuit after Chambers have also received First Step
Act relief after nuanced consideration of § 3553(a) factors. See,
e.g., United States v. Davey, No. 02-201-H, ECF 112 (E.D.N.C.
May 6, 2021) (reducing sentence from 360 months to 280
months for “first-time drug offender who has positive postsentencing conduct”); United States v. McDonald, No. 03-29-H,
ECF 115 (E.D.N.C. May 6, 2021) (reducing sentence from 272
months to 262 months based on “excellent” post-sentencing
conduct and family support); United States v. Ballard, No. 0481-H, ECF 192 (E.D.N.C. May 4, 2021) (reducing term of
supervised release for already-released defendant; citing postsentencing conduct); United States v. Armstead, 2021 WL
9
*****
Like the Fourth Circuit, the Sixth Circuit
requires district courts to apply the § 3553(a) factors
and to explain their reasoning. United States v.
Smith, 959 F.3d 701, 703 (6th Cir. 2020); accord
United States v. Boulding, 960 F.3d 774, 784 (6th
Cir. 2020). Dwight Latham’s First Step Act
proceedings in the Western District of Michigan
demonstrate that giving teeth to this requirement
not only facilitates meaningful appellate review; it
also results in substantively different outcomes.
In 2008, Mr. Latham was sentenced to life
imprisonment following his conviction for a
conspiracy involving 50 grams or more of crack
cocaine. United States v. Latham, 809 F. App’x 320,
321 (6th Cir. 2020). His two prior felony drug
convictions made life imprisonment mandatory by
267825, at *2 (D.S.C. Jan. 27, 2021) (reducing 262-month
sentence to time served, approximately 141 months, based on
post-sentencing conduct); United States v. Badger, 2021 WL
248582, at *3 (D.S.C. Jan. 26, 2021) (reducing 360-month
sentence to 300 months; citing defendant’s “admirable steps to
rehabilitate himself while incarcerated”); United States v.
Brown, 2020 WL 6482397, at *3 (D.S.C. Nov. 4, 2020) (reducing
262-month sentence to time served, resulting in release
approximately seven months early, citing disparity and
“Defendant’s productive use of time while in custody without
minimizing his disciplinary record”); United States v.
Patterson, 2020 WL 5370953, at *3–*4 (W.D.N.C. Sept. 8, 2020)
(reducing 210-month sentence to time served plus ten days,
resulting in release two months early; balancing “exemplary”
post-sentencing conduct against offense conduct and criminal
history).
10
statute, and also rendered him a career offender
under the Guidelines. Id.
The First Step Act reduced Mr. Latham’s
statutory penalties from mandatory life to ten years
to life. United States v. Latham, No. 07-209-PLM,
ECF 159 at 11 (W.D. Mich. Apr. 2, 2019). Acting pro
se, Mr. Latham filed a brief motion asking for a
reduced sentence; he did not address the § 3553(a)
factors. United States v. Latham, No. 07-209-PLM,
ECF 154 (W.D. Mich. Jan. 14, 2019). The
government conceded Mr. Latham’s eligibility but
argued that he remained a career offender, with a
resulting Guidelines range of 360 months to life.
United States v. Latham, No. 07-209-PLM, ECF 159
at 10–11 (W.D. Mich. Apr. 2, 2019). Although the
government stated that the court should consider
the § 3553(a) factors, it did not discuss them. Id. at
9–12. Rather, it simply asked for the court to impose
a within-Guidelines sentence if it was inclined to
grant a reduction. Id. at 12.
In his pro se reply, Mr. Latham argued that his
disciplinary, educational, and work history while
incarcerated merited a sentence below the
Guidelines range. United States v. Latham, No. 07209-PLM, ECF 161 (W.D. Mich. June 10, 2019).
Newly appointed counsel also filed a reply arguing
that the career-offender guideline overstated Mr.
Latham’s culpability, because the predicate offenses
were nonviolent and relatively minor. United States
v. Latham, No. 07-209-PLM, ECF 163 (W.D. Mich.
June 20, 2019).
11
The district court granted a partial sentence
reduction to 360 months, the low end of the
Guidelines range. United States v. Latham, No. 07209-PLM, ECF 164 (W.D. Mich. June 24, 2019). The
court checked the box for “GRANTED” on a form
that “simply recited (in preprinted language) that
the court had considered the relevant [§ 3553(a)]
factors.” Id.; Latham, 809 F. App’x at 321.
Mr. Latham appealed, arguing that the district
court did not adequately explain why it rejected his
arguments for a sentence below 360 months. Id. The
Sixth Circuit agreed, explaining that the
“exceedingly slim” record for the initial sentence and
First Step Act reduction did not permit “meaningful
review of the court’s decision.” Id. at 322. It noted
that Mr. Latham’s arguments were not frivolous,
vacated the sentence, and remanded for a more
fulsome explanation. Id.
Expanding on the § 3553(a) factors in his postremand brief, Mr. Latham argued that the careeroffender guideline did not apply, and that the court
should vary from it if it did apply. United States v.
Latham, No. 07-209-PLM, ECF 172 at 5–9 (W.D.
Mich. Aug. 4, 2020). He presented letters
commending his work performance in the prison
laundry and pledging community support upon his
release. United States v. Latham, No. 07-209-PLM,
ECF 172-1, 172-2, 172-3, 172-4 (W.D. Mich. Aug. 4,
2020).
The government argued that Mr. Latham
remained a career offender. United States v.
Latham, No. 07-209-PLM, ECF 173 at 11 (W.D.
12
Mich. Sept. 3, 2020). It acknowledged that the court
must consider the § 3553(a) factors, including postsentencing conduct, and explain its reasons for
rejecting the defense’s arguments. Id. But again, it
did not dispute Mr. Latham’s updated account of his
history and characteristics. Id.
On remand, the district court granted an
additional reduction, to 324 months. United States
v. Latham, No. 07-209-PLM, ECF 174 (W.D. Mich.
Jan. 14, 2021). Eschewing the form order it had
previously used, the court issued a five-page opinion
that addressed Mr. Latham’s § 3553(a) arguments.
Id. Although it determined that the career-offender
guidelines still applied, and that the offense was
serious, the court reduced the sentence by three
years to recognize Mr. Latham’s “efforts at
rehabilitation.” Id. at 5.
This Court has stressed the salutary effects of
adequate explanation at sentencing. “Judicial
decisions are reasoned decisions. Confidence in a
judge’s use of reason underlies the public’s trust in
the judicial institution.” Rita v. United States, 551
U.S. 338, 356 (2007). And adequate explanation
promotes meaningful appellate review. Gall v.
United States, 552 U.S. 38, 50 (2007). But these
systemic benefits are not the whole story: requiring
consideration and explanation of the § 3553(a)
factors has a direct impact on individual defendants’
sentences.
*****
Curtis Robertson’s case, from the Western
District of Oklahoma, illustrates how a uniform rule
13
requiring consideration of the § 3553(a) factors can
lead to different sentencing outcomes.
In 2007, Mr. Robertson was sentenced to life
imprisonment for crack-cocaine and firearms
offenses. United States v. Robertson, No. 07-56-C-1,
ECF 302 at 3 (Dec. 27, 2019). His prior convictions
for felony drug offenses mandated a statutory term
of life imprisonment; he also was determined to be a
career offender, which resulted in an advisory
Guidelines range of life. Id. at 2–3.
Mr. Robertson filed a § 404 motion in 2019,
asserting that the First Step Act and Fair
Sentencing Act reduced his statutory range for the
crack offenses to ten years to life and his Guidelines
range to 360 months to life, 4 assuming he was still a
career offender. United States v. Robertson, No. 0756-C-1, ECF 301 at 7–9 (Oct. 28, 2019). He also
urged the district court to consider, in the exercise of
its discretion, that he might not be a career offender
if sentenced under current Tenth Circuit law. Id. at
9. Finally, he argued that the § 3553(a) factors—a
minimal disciplinary history, the stringent
conditions of confinement at United States
Penitentiaries, his willingness to avail himself of the
limited programming opportunities available
therein, and family support—weighed in favor of a
reduced sentence. Id. at 9–14.
Mr. Robertson’s conviction under 18 U.S.C. § 924(c)
carried a mandatory consecutive sentence of 60 months’
imprisonment. United States v. Robertson, No. 07-56-C-1, ECF
301 at 7 (Oct. 28, 2019).
4
14
In response, the government acknowledged that
Mr. Robertson had covered offenses, and that he was
no longer subject to mandatory life imprisonment
pursuant to statute. United States v. Robertson, No.
07-56-C-1, ECF 302 at 6 (Dec. 27, 2019). But it
argued that the district court could not revisit the
career-offender designation in a First Step Act
resentencing. Id. at 6–7.
The government did not refute, or otherwise
respond to, Mr. Robertson’s § 3553(a) arguments. Id.
at 6–8. While it noted that Mr. Robertson’s codefendant had received a First Step Act sentence
reduction to 180 months, and had a similar criminal
history, it contended that the co-defendant was not
similarly situated because he had not been
determined to be a career offender or initially
subject to mandatory life imprisonment. Id. at 7–8.
The district court reduced Mr. Robertson’s
sentence from life imprisonment to a total term of
420 months (360 months for the crack offenses, plus
a consecutive 60 months for the § 924 conviction).
United States v. Robertson, No. 07-56-C-1, ECF 303
at 4 (Jan. 16, 2020). It agreed with the government
that it could not reevaluate the career-offender
determination in a First Step Act proceeding. Id. at
3. And in declining to reduce the sentence below the
amended Guidelines range, the district court did not
discuss any of the § 3553(a) considerations raised by
Mr. Robertson. Id. at 1–4.
The Tenth Circuit reversed. United States v.
Robertson, 837 F. App’x 639, 641 (10th Cir. 2020). Its
intervening decision in United States v. Brown, 974
15
F.3d 1137 (10th Cir. 2020), gave district courts
discretion
to
reconsider
a
career-offender
designation in the light of subsequent decisional
law. Id. at 1144–46. The Tenth Circuit noted that in
Brown, which involved the same disputed careeroffender predicate as Mr. Robertson’s case, it had
remanded “for the district court to exercise its
discretion to choose whether to reconsider Brown’s
career-offender
status,
as
well
as
the
appropriateness of his sentence after considering the
18 U.S.C. § 3553(a) factors.” Robertson, 837 F. App’x
at 641. 5 In the Tenth Circuit’s view, Mr. Robertson
stood in “the same legal position as Brown,” and
“deserve[d] the same relief.” Id.
Mr. Robertson filed a renewed motion on remand,
requesting a sentence at or near the mandatory
minimum of 180 months. United States v. Robertson,
No. 07-56-C-1, ECF 323 at 10 (Feb. 4, 2021). He
reraised his career-offender and § 3553(a)
arguments, supplementing the latter with
additional information regarding the violence he
had witnessed and suffered in prison, his
disciplinary history, pre-incarceration work history,
continued family support, and his co-defendant’s
sentence reduction. Id. at 6–10.
The government acknowledged that, regardless
of whether Mr. Robertson remained a career
offender, the district court had discretion to vary
5 In a previous decision, however, the Tenth Circuit had
held that consideration of the § 3553(a) factors was “not
required.” See United States v. Mannie, 971 F.3d 1145, 1158
n.18 (10th Cir. 2020).
16
below the career-offender guideline under § 3553(a).
United States v. Robertson, No. 07-56-C-1, ECF 324
at 5 (Feb. 25, 2021). It further stated that it had no
reason to dispute Mr. Robertson’s factual support for
the § 3553(a) factors, and again highlighted the codefendant’s 180-month sentence. Id. It did not
recommend a particular sentence, simply noting
that any further reduction based on § 3553(a) factors
was committed to the court’s discretion. Id. at 6.
The district court declined to exercise its
discretion to reconsider Mr. Robertson’s careeroffender status. United States v. Robertson, No. 0756-C-1, ECF 326 at 1 (Mar. 4, 2021). Instead, it
proceeded straight to other § 3553(a) factors,
including Mr. Robertson’s disciplinary history, age,
participation in BOP programming, family and
correctional facility support, and employability, as
well as the co-defendant’s statutory-minimum
sentence. Id. at 1–2. Those factors, it concluded,
supported a mandatory-minimum sentence of 180
months. Id. at 2.
Most of this § 3553(a) information was before the
court when it reduced Mr. Robertson’s sentence from
life to 420 months. But the district court did not give
full play to those factors—to the tune of an
additional twenty-year reduction—until required to
do so by the court of appeals.
17
2. The temporal gap between the original
sentencing and First Step Act
proceedings
underscores
the
importance of an updated § 3553(a)
analysis.
Fresh consideration of the § 3553(a) factors in the
First Step Act context is crucial given the significant
time that has necessarily elapsed between the
original sentencing and a § 404 motion for reduction
of sentence. Any defendant eligible for a First Step
Act reduction was sentenced before August 3, 2010,
the effective date of the Fair Sentencing Act. See
Pub. L. 115-391, § 404, 132 Stat. 5194, 5222 (2018);
Dorsey, 567 U.S. at 264. Some eligible defendants
have been incarcerated much longer. See e.g., United
States v. Merrick, No. 94-163-RBS-19, ECF 1154
(E.D. Va. Nov. 6, 2020) (reducing 420-month
sentence imposed in 1995 to time served under First
Step Act).
Given this passage of time, the § 3553(a)
factors—especially the defendant’s history and
characteristics, the need to afford adequate
deterrence, and the need to protect the public—will
not have remained static. Post-sentencing
rehabilitation, in particular, is “highly relevant” to
all of these sentencing considerations. Pepper v.
United States, 562 U.S. 476, 491–93 (2011).
The cases featured below represent but a small
sample of First Step Act proceedings where district
courts used the § 3553(a) factors to guide their
discretion, whether due to controlling circuit
authority or on their own initiative, and imposed a
18
reduced sentence based on an updated § 3553(a)
analysis.
*****
Because of the lengthy sentences being served by
crack-cocaine offenders, the original sentencing
judge may be unavailable to rule on a First Step Act
motion. See United States v. Shaw, 957 F.3d 734, 741
(7th Cir. 2020). This discontinuity “could hamper a
judge’s consideration of a defendant’s arguments,
because the new judge would be heavily reliant on a
previous explanation and record that was ‘not
created with the current statutory framework in
mind.’” Id. (quoting United States v. Allen, 956 F.3d
355, 358 (7th Cir. 2020)).
In such cases, the new judge will have to discern
the rationale for the original sentence from the cold
record. In United States v. Welch, 2020 WL 6389830
(N.D. Ala. Oct. 30, 2020), for instance, the district
court attempted to ascertain the original sentencing
judge’s reasons for imposing a below-Guidelines,
420-month sentence for Larry Welch’s crack-cocaine
and firearms convictions. Id. at *2. The new judge
concluded that the original judge likely believed that
the overall guideline range, driven by a crackcocaine conviction, was “excessive”—as evidenced by
the partly concurrent sentencing package he had put
together. Id. The new judge stated that she would
consider the original judge’s “apparent rationale”
but was “not bound to mimic [it].” Id.
Ultimately, the district court in Welch relied on
its thorough, renewed consideration of the § 3553(a)
factors to reduce the total sentence from 420 months
19
to 240 months, despite an unchanged advisory
Guidelines range. Id. at *4–*5. It noted Mr. Welch’s
minimal parental guidance, severe past substance
abuse, and sobriety while incarcerated. Id. at *5. It
took into account Mr. Welch’s age (64 years old),
clean disciplinary record, positive programming,
and institutional and family support. Id. While the
district court did not downplay the seriousness of
Mr. Welch’s offenses or his criminal history, it
observed that those offenses were tied to his drug
addiction, and that continued sobriety would reduce
the risk of recidivism. Id.
*****
Likewise, in United States v. Knight, 2021 WL
266341 (W.D. Pa. Jan. 27, 2021), a new judge
imposed a significantly reduced sentence after
conducting a fresh evaluation of the § 3553(a)
factors. Carl Knight had been sentenced to life
imprisonment for a crack-cocaine conspiracy under
the mandatory Guidelines in 1999. Id. at *4. By the
time Mr. Knight sought First Step Act relief, two
decades later, a new judge had been assigned to his
case. Id. at *4–*6.
The new judge rejected the government’s
suggestion to “follow the sentencing rationale
utilized at a defendant’s original sentencing hearing
and simply arrive at the same sentence.” Id. at *2.
Reasoning that the First Step Act was intended to
give the defendant a “‘do-over of sorts,’” the district
court declined to “shirk[] the responsibility of
performing that task under the guise of prior judicial
musings rendered under meaningfully different
20
circumstances.” Id. Further, the district court
pointed out, the Third Circuit had already required
courts to apply the traditional § 3553(a) factors to a
defendant’s current circumstances when ruling on
First Step Act sentence reductions. Id. at *3 (citing
United States v. Easter, 975 F.3d 318, 325–27 (3d
Cir. 2020)).
In accordance with Easter, the district court
undertook a robust § 3553(a) analysis. Although it
concluded that the (now-advisory) Guidelines range
remained life, it took note of the fact that the
Sentencing Commission had ameliorated the
penalties for crack-cocaine offenses since the time of
the original sentencing. Id. at *8–*9. The court also
deemed Mr. Knight an “exemplary inmate,” based on
his work ethic, completion of dozens of educational
and vocational classes, respected position as an
inmate chaplain and mentor, and good institutional
conduct. Id. at *9–*10.
The district court did not limit its consideration
of § 3553(a) factors to post-sentencing rehabilitation,
however. The record in Knight also included
evidence of unwarranted disparity with respect to
the conspiracy’s kingpin, who cooperated with the
government and was sentenced to eight years of
imprisonment; indeed, the former prosecutor on the
case submitted a letter stating his belief that Mr.
Knight’s mandatory life sentence was unjust. Id.
While the district court acknowledged that the
offense of conviction was serious, it concluded that
Mr. Knight’s maturation and post-sentencing
rehabilitation reduced the risk of recidivism. Id. at
*10–*11. Taken together, the § 3553(a) factors
21
convinced the district court to reduce Mr. Knight’s
life sentence to time served, approximately 280
months. Id. at *1.
Requiring renewed consideration of the § 3553(a)
factors in First Step Act proceedings ensures that
the court exercises its discretion “in accordance with
the prevailing standards of today notwithstanding
the government’s perception that yesterday’s views
were better.” Id. at *3.
*****
When a new judge presides over a First Step Act
proceeding, a reviewing court cannot presume
consideration of the relevant § 3553(a) factors based
on the judge’s prior familiarity with the defendant.
Cf. United States v. Eggersdorf, 126 F.3d 1318, 1323
(11th Cir. 1997) (holding that district court had
adequately considered § 3553(a) factors, based
partly on fact that “the same district court judge who
sentenced Defendant originally was the one who
declined to resentence him”). Nor, in such cases, can
sufficient explanation of the § 3553(a) factors be
gleaned from the judge’s statements at the initial
sentencing. Cf. Chavez-Meza v. United States, 138 S.
Ct. 1959, 1967 (2018) (in review of sentencemodification proceeding, declining to “turn a blind
eye to what the [same] judge said at petitioner’s
initial sentencing”).
Moreover, the fundamental premise of the First
Step Act precludes fallback on the original
sentencing rationale. The Act presents eligible
defendants with “the opportunity” to reduce a
quantity-based sentence “imposed . . . during what
22
must now be regarded as an obsolete era in federal
sentencing jurisprudence.” United States v. Burrell,
2020 WL 5014783, at *9 (E.D.N.Y. Aug. 25, 2020). In
Burrell, the district court noted that the offense of
conviction and the Guidelines range had not
changed since Stanley Burrell was sentenced to life
imprisonment in 2000, under the then-mandatory
Guidelines. Id. at *9 & n.14. But it concluded that
Mr. Burrell’s “commendable record of substantial
self-rehabilitation,” in tandem with the sea change
in sentencing law over the past two decades,
justified a reduction to 30 years. Id. at *9–*10.
In the absence of guidance from the Second
Circuit regarding the factors that a district court
“may (or must) consider” when ruling on a First Step
Act motion, United States v. Holloway, 956 F.3d 660,
666 (2d Cir. 2020), the district court in Burrell
looked to the § 3553(a) factors to organize its
discretionary decisionmaking. Burrell, 2020 WL
5014783, at *9. Under that rubric, it scrutinized the
particulars
of
Mr.
Burrell’s
coursework,
employment, counseling programs, and disciplinary
record. Id. This Court’s review would ensure that
other First Step Act movants receive similar
consideration,
regardless
of
geographical
happenstance or the sentencing judge’s personal
inclination to invoke § 3553(a).
*****
Even when the same judge is available to rule on
a First Step Act motion, the sheer lapse of time may
have rendered the original § 3553(a) factors stale.
Bervick McClendon sought a First Step Act
23
reduction from the same judge who sentenced him to
life imprisonment in 2005. United States v.
McClendon, 05-80091-DMM, ECF 79 (S.D. Fla. June
17, 2020). Although the district court did not
recalculate Mr. McClendon’s Guidelines range of
360 months to life, it reduced his sentence to 180
months, commenting, “Much has transpired since
the original sentencing, both in the law and in Mr.
McClendon’s life.” Id. at 1, 8 & n.2. The § 3553(a)
factors, which the district court regarded as
mandatory, provided the familiar framework for
consideration of those intervening developments. Id.
at 8–11.
To be sure, Mr. McClendon’s post-sentencing
rehabilitation loomed large in the district court’s
decision to reduce his life sentence to fifteen years.
Id.at 6–7. However, the district court first checked
recent average sentences imposed on crack-cocaine
offenders (78 months) and career offenders (152
months) to gauge the current seriousness of the
offense. Id. at 9–10.
The district court explained that it initially
imposed a sentence of life imprisonment based on
Mr. McClendon’s criminal history, which led it to
believe that he posed a serious threat to public
safety. Id. at 2. But Mr. McClendon’s performance
during fifteen years in prison had eroded that view:
he had overcome his drug addiction, completed his
GED, taken numerous courses and taught angermanagement classes, excelled in his work in prison
industries (UNICOR), and received one of the first
UNICOR scholarships to participate in Louisiana
24
State University’s distance-learning program. Id. at
6–7. The district court stated: “When I sentenced
Mr. McClendon in 2005, I underestimated his
potential and capacity for change.” Id. at 10. When
consideration of the § 3553(a) factors is required, a
court must reckon with such changes in the
defendant, and in the prevailing legal climate.
*****
NACDL submits that Mr. Houston’s postsentencing rehabilitation is on a par with the
updated history and characteristics detailed by the
courts in Welch, Knight, Burrell, and McClendon in
imposing significantly below-Guidelines sentences.
But consideration of these circumstances is
conspicuously missing from the decision in Mr.
Houston’s case. Pet. App. 8a–11a. NACDL agrees
that this Court’s review is warranted because the
difference in procedural opportunity will be outcome
dispositive in many cases.
3. In light of the very real possibility
that renewed § 3553(a) consideration
results in lower sentences, the Court
must intervene now.
NACDL agrees with Mr. Houston that this Court
should act swiftly to resolve the entrenched conflict
among the courts of appeals. Declining to decide
whether consideration of § 3553(a) factors in § 404
proceedings is mandatory, or merely permissible,
will result in defendants fully serving sentences that
are “greater than necessary” to achieve the purposes
of sentencing, 18 U.S.C. § 3553(a).
25
Cases remanded by the courts of appeal for
consideration of the § 3553(a) factors reveal the costs
of additional delay. In Olvis, for instance, the district
court ultimately reduced a 404-month sentence to
240 months. United States v. Olvis, No. 95-38-RGD,
ECF 344 at 9 (E.D. Va. Apr. 23, 2021). But Mr. Olvis
had already served approximately 325 months by
the time the case was decided on remand. Id. Nearly
a year elapsed between the initial denial and the
grant of relief on remand — time devoted to the
direct appeal and supplemental post-remand
briefing. Id. at 4–5. Absent prompt resolution of the
question presented, other movants with meritorious
claims may likewise end up overserving their
sentences.
Similarly, the Fourth Circuit vacated the district
court’s denial of Robert Richardson’s First Step Act
motion, stating that it was unclear whether the
district court had found Mr. Richardson ineligible or
had “accepted that Richardson was eligible for a
reduction but summarily denied it, without
considering the § 3553(a) sentencing factors, on the
grounds that his advisory Guidelines range would
remain unchanged.” United States v. Richardson,
807 F. App’x 264, 265 (4th Cir. 2020) (per curiam).
Either ruling would amount to error, the Fourth
Circuit held. Id. By the time the Fourth Circuit ruled
in his favor, however, Mr. Richardson had completed
serving his term of imprisonment and had been
released from custody. United States v. Richardson,
No. 05-40-GMG, ECF 329 at 3 (N.D. W. Va. June 24,
2020).
26
Limiting the real-world relief that a First Step
Act sentence reduction can provide is at odds with
the statute’s “strong” remedial purpose: to rectify a
sentencing regime that imposed “disproportionate
and racially disparate sentencing penalties.” United
States v. White, 984 F.3d 76, 90 (D.C. Cir. 2020). The
Act “makes possible the fashioning of the most
complete relief possible” to eligible defendants, who
“are serving sentences that Congress now deems
unfair.” Id. (cleaned up). While required
consideration of the § 3553(a) factors advances this
remedial purpose, it is unavailable to many eligible
defendants depending on their geographical
location.
Because
this
uneven
procedural
opportunity translates into disparate sentencing
outcomes, this Court’s review is warranted now.
CONCLUSION
For the foregoing reasons, this Court should
grant the petition for a writ of certiorari.
27
Respectfully submitted,
CUAUHTEMOC ORTEGA
Federal Public Defender
BRIANNA FULLER MIRCHEFF*
GIA KIM
Deputy Federal Public
Defenders
321 East 2nd Street
Los Angeles, CA 90012
Telephone: (213) 894-2854
Brianna_Mircheff@fd.org
*Counsel of Record
JEFFREY T. GREEN
Co-Chair, NACDL Amicus
Committee
1660 L Street, N.W.
Washington, DC 20036
May 21, 2021
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.