Petition for Writ of Certiorari — Maci Denon Davis and Joe L. Franklin, Petitioners v. United States

Supreme Court briefApr 26, 2021

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NO. _________

IN THE SUPREME COURT OF THE UNITED STATES

MACI DENON DAVIS and

JOE L. FRANKLIN,

Petitioners,

UNITED STATES OF AMERICA,

Respondent

__________________________________________

PETITION FOR A WRIT OF CERTIORARI

APPENDIX

__________________________________________

INDEX TO APPENDIX

United States v. Davis, 834 F. App’x 296 (8th Cir. 2021) .......................................... 1a

District Court Memorandum Opinion and Order ...................................................... 3a

District Court Opinion and Order on Motion for Reconsideration ............................ 9a

United States v. Davis, 834 Fed.Appx. 296 (2021)

834 Fed.Appx. 296 (Mem)

This case was not selected for

publication in West's Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1,

generally governing citation of judicial

decisions issued on or after Jan. 1, 2007.

See also U.S.Ct. of App. 8th Cir. Rule 32.1A.

United States Court of Appeals, Eighth Circuit.

UNITED STATES of America Plaintiff - Appellee

Maci Denon DAVIS Defendant - Appellant

United States of America Plaintiff - Appellee

Joe L. Franklin Defendant - Appellant

No. 19-3050, No. 19-3082

Submitted: December 18, 2020

Filed: January 27, 2021

Appeals from United States District Court for the Western

District of Arkansas - Fayetteville

Attorneys and Law Firms

Amanda Meredith Donat, Lloyd Vance Stone, Assistant

United States Attorney, Candace L. Taylor, Assistant

U.S. Attorney, U.S. Attorney's Office, Western District of

Arkansas, Fort Smith, AR, for Plaintiff-Appellee

Maci Denon Davis, Pro Se

Bruce Eddy, Federal Public Defender, Anna Marie Williams,

Assistant Federal Public Defender, Federal Public Defender's

Office, Fayetteville, AR, for Defendant-Appellant

Before SMITH, Chief Judge, WOLLMAN and LOKEN,

Circuit Judges.

[Unpublished]

PER CURIAM.

Maci Davis and Joe Franklin appeal judgments from the

district court 1 reducing their sentences pursuant to Section

404 of the First Step Act of 2018. Pub. L. No. 115-391, §

404, 132 Stat. 5194, 5222 (2018). In light of our prior recent

decisions resolving First Step Act issues, we affirm.

In 2007 and 2008, respectively, Davis and Franklin pleaded

guilty to possession with the intent to distribute at least

50 grams of cocaine base (crack cocaine) in violation

21 U.S.C. § 841(a)(1),

(b)(1)(A)(iii). As career

offenders under the U.S. Sentencing Guidelines (U.S.S.G. or

Guidelines), both Davis and Franklin had advisory Guidelines

sentencing ranges of 262 to 327 months’ imprisonment and

were each sentenced to 262 months’ imprisonment. United

States v. Davis, 317 F. App'x 572 (8th Cir. 2009) (unpublished

per curiam) (affirming Davis's initial sentence); United States

v. Franklin, 362 F. App'x 571 (8th Cir. 2010) (unpublished per

curiam) (affirming Franklin's initial sentence).

After Davis and Franklin filed motions for relief under the

First Step Act, the district court reduced their respective

sentences to 188 months’ imprisonment, the bottom of their

recalculated sentencing ranges. Davis and Franklin moved

for reconsideration, seeking to supplement the record with

information about their postconviction conduct. The district

court denied the motions in September 2019 and *297 opted

instead to “tether itself to the recalculated guidelines not out

of a belief that the First Step Act requires such a practice, but

rather out of a belief that this is the most practicable way to

effectuate the policies undergirding the First Step Act in a fair

and consistent manner.” D. Ct. Order of Sept. 5, 2019 at 4.

Section 404 of the First Step Act provides that a district judge

“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.” 132 Stat. at 5222. If

the district court determines that a defendant is eligible for

relief when considering a motion for a reduced sentence under

Section 404, it must then decide whether to grant a reduction.

United States v. McDonald, 944 F.3d 769, 772 (8th Cir.

2019). The district court properly determined that Davis and

Franklin were eligible for sentence reductions under the First

Step Act. We review the district court's decision to grant or

deny an authorized sentence reduction under Section 404 for

abuse of discretion.

Id. at 771.

Davis and Franklin first argue that the district court

misunderstood its discretion under Section 404. Because

it believed that conducting the resentencing “proceedings

in a manner analogous to what would occur if the

United States Sentencing Commission, rather than Congress,

1a 1

United States v. Davis, 834 Fed.Appx. 296 (2021)

had authorized the sort of retroactive sentencing relief

contemplated by Section 404” would help “avoid arbitrary

and unwarranted sentencing disparities, see

18 U.S.C.

§ 3553(a)(6),” the district court looked to

U.S.S.G. §

1B1.10(b) for guidance. D. Ct. Order of Aug. 15, 2019 at 11–

12 (citing

U.S.S.G. § 1B1.10(b)(1), which sets forth the

manner in which a sentence reduction is determined following

an amendment to the Guidelines and U.S.S.G. § 1B1.10(b)

(2)(A), which limits the district court's authority pursuant to

18 U.S.C. § 3583(c)(2) to reduce a sentence below the

bottom of the recalculated Guidelines range). The district

court, however, expressly recognized that, unlike sentence

reductions under

18 U.S.C. § 3582(c)(2), Section 404

did not require it to follow the Guidelines when imposing a

reduced sentence pursuant to the First Step Act. D. Ct. Order

of Aug. 15, 2019 at 13. Contra United States v. Johnson, 821 F.

App'x 670, 671–72 (8th Cir. 2020) (unpublished per curiam)

(remanding when the district court's opinion was unclear

whether the district court viewed a prior case as mandating

the result rather than as mere guidance in exercising its

discretion). It is not abuse of discretion for the district court

to consider one of the

§ 3553(a) sentencing factors when

deciding whether to reduce a sentence pursuant to Section

404.

United States v. Moore, 963 F.3d 725, 727 (8th Cir.

2020). Nor is it abuse of discretion for the district court to find

guidance in the Sentencing Commission's policy statements

when, as here, the court recognizes that Section 404 of the

First Step Act does not require it to do so.

Davis and Franklin next contend that the district court

failed to conduct a complete review of the motions on the

merits as contemplated by Section 404(c) of the First Step

Act. To conduct a “complete review” under Section 404, a

district court must consider the arguments presented in the

defendant's motion and have a reasoned basis for its decision.

Id. at 728. Our review consists of determining whether

the record shows that the district court “has considered the

parties’ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority.” United States v.

Booker, 974 F.3d 869, 871 (8th Cir. 2020) (quoting Rita v.

United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d

203 (2007)). The record clearly establishes that the district

court did so here. See *298 United States v. Williams, 943

F.3d 841, 844 (8th Cir. 2019) (“The district court need not

respond to every argument made by defendant.” (internal

citation and quotation marks omitted)); United States v.

Hoskins, 973 F.3d 918, 921 (8th Cir. 2020) (record showed

a complete review even though the district court did not

give rehabilitation and good disciplinary record as much

consideration as defendant would prefer).

The judgments of the district court are affirmed.

All Citations

834 Fed.Appx. 296 (Mem)

Footnotes

The Honorable Timothy L. Brooks, United States District Judge for the Western District of Arkansas.

End of Document

2a 2

United States v. Franklin, Slip Copy (2019)

2019 WL 3848946

Only the Westlaw citation is currently available.

United States District Court, W.D.

Arkansas, Fayetteville Division.

UNITED STATES of America, Plaintiff

Joe L. FRANKLIN, Defendant

and

United States of America, Plaintiff

Maci Denon Davis and Ronald

Antonio Moorehead, Defendants

CASE NO. 5:08-CR-50060, CASE NO. 5:07CR-50037-001, CASE NO. 5:07-CR-50037-002

Signed 08/15/2019

Attorneys and Law Firms

Brandon T. Carter, United States Attorneys Office, Fort

Smith, AR, M.C. Quinn, U.S. Attorney's Office, Texarkana,

AR, for Plaintiff.

MEMORANDUM OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT

JUDGE

*1 Currently before the Court in the case of United States v.

Franklin, 5:08-cr-50060, are:

• Defendant Joe L. Franklin's Motion

to Reduce Sentence (Doc. 85) and

the Government's Response (Doc.

90).

Also before the Court in the case of United States v. Davis &

Moorehead, Case No. 5:07-cr-50037, are:

• Defendant Maci Denon Davis's Motion to Reduce

Sentence (Doc. 123) and the Government's Response

(Doc. 126); and

• Defendant Ronald Antonio Moorehead's Motion to

Reduce Sentence (Doc. 114) and the Government's

Response (Doc. 119).

This Memorandum Opinion and Order addresses and rules

upon issues that are common to all three of these Motions.

Other matters that are unique to each Motion will be ruled

upon in separate Orders—each of which will be filed on

the docket for the case in which its movant is a party—in

accordance with this Memorandum Opinion and Order.

I. BACKGROUND

In 2010, the Fair Sentencing Act was passed by Congress

and signed by the President. Sections 2 and 3 of the

Fair Sentencing Act effectively reduced certain statutory

penalties for crack-cocaine offenses, thus lowering the

federal sentencing disparity between crack-and powdercocaine crimes. See Fair Sentencing Act of 2010, Pub. L.

No. 111-220, §§ 2-3, 124 Stat. 2372, 2372 (2010). Eight

years later, the First Step Act of 2018 was passed and signed,

enacting a wide range of various criminal-justice reforms.

Among those many reforms was a provision designed to make

Sections 2 and 3 of the Fair Sentencing Act retroactively

applicable to defendants who had been sentenced before the

Fair Sentencing Act became law. That provision is located in

Section 404 of the First Step Act, which reads as follows:

(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.

(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 Prison, 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.

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

3a 1

United States v. Franklin, Slip Copy (2019)

2019 WL 3848946

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.

First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat.

5194, 5222 (2018).

*2 Defendants Franklin, Davis, and Moorehead were all

sentenced in this Court for crack offenses before the Fair

Sentencing Act was enacted. Now they are asking this Court

to reduce their sentences under Section 404 of the First Step

Act. The Government does not deny that these Defendants are

eligible for sentencing relief, and it does not oppose an award

of some of the relief they are requesting. But it disagrees with

these Defendants on the amounts by which their sentences

should be reduced, and on what type of proceedings this Court

should follow when awarding them relief.

All three of these Defendants, when originally sentenced,

were found by this Court to have criminal histories that

made them “career offenders” as the United States Sentencing

Guidelines then defined that term; accordingly they all

U.S.S.G. § 4B1.1(b) which

received enhancements under

yielded more severe advisory sentencing ranges than would

have applied absent their career-offender designations. This

is significant because all three Defendants contend that

subsequent developments in Supreme Court and Eighth

Circuit caselaw imply that they would not qualify as career

offenders if that analysis were performed anew today. Thus,

all three Defendants want the opportunity to challenge

their career-offender designations. Specifically, each of these

Defendants is seeking a complete resentencing, at a hearing

where the Defendant would be physically present. At those

resentencing hearings, each Defendant wants this Court to

perform a complete recalculation of his advisory sentencing

range under the most recent version of the Sentencing

Guidelines, in accordance with the current state of caselaw,

and to consider anew all of the relevant sentencing factors

under

18 U.S.C. § 3553(a).

The Government, on the other hand, does not believe that

the relevant statutes authorize a complete resentencing or the

opportunity for these Defendants to challenge their careeroffender designations. The Government agrees that this Court

should recalculate each Defendant's advisory sentencing

range under the United States Sentencing Guidelines, but

contends that when doing so this Court should alter only those

variables which depend on the statutory penalties that were

amended by the Fair Sentencing Act and made retroactive by

the First Step Act. This approach would be a straightforward

and mechanical process, because the only such variable in

these cases is the size of the career-offender enhancement

—not whether the career-offender enhancement applies in

the first place. Essentially, when a defendant is designated a

career offender under the Sentencing Guidelines, the severity

of his career-offender enhancement depends on the severity of

the maximum statutory penalty authorized for his offense of

conviction: the higher the statutory maximum, the larger the

career-offender enhancement. See

U.S.S.G. § 4B1.1(b).

There is no dispute between the Government and any of these

Defendants as to what the new advisory sentencing ranges

would be under this limited process; and if this limited process

were employed, then the Government would not oppose each

Defendant's sentence being reduced to the bottom of his

newly-calculated advisory sentencing range.

In other words, in each of these cases the only dispute between

the Defendant and the Government is whether applicable law

authorizes a complete in-person resentencing that includes an

opportunity for the Defendant to challenge his career-offender

status, or whether the Defendant may only receive a purely

mechanical reduction in his sentence which leaves his careeroffender status in place but which reduces the impact that his

career-offender status has on his advisory Guidelines range.

This Court believes the latter position is the better reading

of the relevant rules and statutes, in light of their underlying

policies and purposes. The following Section explains why.

II. DISCUSSION

*3 Whether a defendant's presence is required at a

sentencing proceeding depends upon the scope of the

proceeding in question. Ordinarily, the Federal Rules of

Criminal Procedure require that “the defendant must be

present at ... sentencing.” Fed. R. Crim. P. 43(a)(3). However,

“[a] defendant need not be present” when “[t]he proceeding

involves the correction or reduction of sentence under Rule

35 or

18 U.S.C. § 3582(c).” See Fed. R. Crim. P. 43(b)

(4). Rule 35 does not apply here, as it is concerned only

with correcting sentences “that resulted from arithmetical,

technical, or other clear error,” see

Fed. R. Crim. P. 35(a),

or with reducing sentences for defendants who “provided

4a 2

United States v. Franklin, Slip Copy (2019)

2019 WL 3848946

substantial assistance in investigating or prosecuting another

person,” see

Fed. R. Crim. P. 35(b)(1).

18 U.S.C. § 3582(c) states:

The court may not modify a term of imprisonment once it

has been imposed except that—

(1) in any case—

(A) the court ... may reduce the term of imprisonment

(and may impose a term of probation or supervised

release with or without conditions that does not

exceed the unserved portion of the original term

of imprisonment), after considering the factors set

section 3553(a) to the extent that they are

forth in

applicable, if it finds that—

(i) extraordinary and compelling reasons warrant such

a reduction; or

(ii) the defendant is at least 70 years of age, has served

at least 30 years in prison, ... and a determination has

been made by the Director of the Bureau of Prisons

that the defendant is not a danger to the safety of

any other person or the community, as provided under

section 3142(g);

and that such a reduction is consistent with

applicable policy statements issued by the Sentencing

Commission; and

(B)the court may modify an imposed term of

imprisonment to the extent otherwise expressly

permitted by statute or by

Rule 35 of the Federal

Rules of Criminal Procedure; and

(2) in the case of a defendant who has been sentenced to

a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing

modify a term of imprisonment after it has been imposed: (1)

if warranted by extraordinary and compelling reasons, see id.

at § 3582(c)(1)(A)(i); (2) if a defendant is not dangerous, is at

least 70 years old, and has served at least 30 years in prison,

see id. at § 3582(c)(1)(A)(ii); (3) if the Guidelines range on

which a defendant's sentence was based has subsequently

been lowered by the Sentencing Commission, see id. at §

3582(c)(2); or (4) “to the extent otherwise expressly permitted

by statute or by

Rule 35,” see id. at § 3582(c)(1)(B).

None of these Defendants is contending that there are

“extraordinary and compelling reasons” present here that

would warrant a reduction in his sentence. None of

these Defendants is at least 70 years old. None of these

Defendants was sentenced based on a sentencing range

that has subsequently been lowered by the Sentencing

Commission pursuant to

28 U.S.C. § 994(o). 1 And as

previously mentioned,

Rule 35 does not apply here. So

in the instant matter the only applicable exception to

U.S.C. § 3582(c)'s general rule against modifying terms of

imprisonment is that found in § 3582(c)(1)(B), authorizing

such modifications “to the extent otherwise expressly

permitted by statute.” And indeed, these Defendants are

moving under an expressly permitted statutory basis: Section

404 of the First Step Act.

*4 One might hastily assume, then, that under Rule 43 a

defendant's presence is not required for modification of his

sentence under the First Step Act. After all, as previously

noted, “[a] defendant need not be present” when “[t]he

proceeding involves the correction or reduction of sentence

under ...

18 U.S.C. § 3582(c).” See Fed. R. Crim. P.

18 U.S.C. § 3582(c)(1)(B) permits subsequent

43(b)(4).

modification of a prison term when “expressly permitted by

statute.” And Section 404 of the First Step Act is a statute that

expressly permits subsequent modification of a prison term.

Commission pursuant to

28 U.S.C. 994(o), ... the

court may reduce the term of imprisonment, after

However, this Court believes the situation actually is not quite

so simple. To see why, it is helpful to look at how Rule

considering the factors set forth in

section 3553(a) to

the extent that they are applicable, if such a reduction

is consistent with applicable policy statements issued by

the Sentencing Commission.

43 and

18 U.S.C. § 3582(c) work in the context of two

other situations where sentence modifications are “otherwise

expressly permitted by statute”: following successful direct

(emphasis added). In other words, this statute provides that

there are only four circumstances under which a court may

appeals from a sentence under 18 U.S.C. § 3742(f), (g),

or following successful collateral attacks on a sentence under

28 U.S.C. § 2255. 2 The former statute provides that if,

5a 3

United States v. Franklin, Slip Copy (2019)

2019 WL 3848946

on appeal from a criminal sentence, “the court of appeals

determines that ... the sentence was imposed in violation of

law or imposed as a result of an incorrect application of the

sentencing guidelines, the court shall remand the case for

further sentencing proceedings with such instructions as the

18 U.S.C. § 3742(f). As for

court considers appropriate.”

the latter statute, it provides that if, on motion by a federal

prisoner who is challenging the legality of his sentence,

the court finds that the judgment

was rendered without jurisdiction,

or that the sentence imposed was

not authorized by law or open to

collateral attack, or that there has been

such a denial or infringement of the

constitutional rights of the prisoner as

to render the judgment vulnerable to

collateral attack, the court shall vacate

and set the judgment aside and shall

discharge the prisoner or resentence

him or grant a new trial or correct the

sentence as may appear appropriate.

28 U.S.C. § 2255.

Both of these statutes apparently contemplate a wide variety

of potential remedies—including the possibility of a complete

resentencing, but also including a variety of other lesser

potential remedies, as deemed appropriate by the relevant

court. When courts are asked to determine whether a

defendant or prisoner must be present for a sentence

modification under either of these statutes, the answer—or at

least the outcome—seems to be driven by two considerations.

One is whether the modification of the sentence might result

in a more onerous sentence than was originally imposed. The

other is whether the resentencing court will be required to

exercise a significant amount of discretion while considering

some matter that was not considered at the original sentencing

proceeding. If either of these circumstances exists, then the

defendant's presence is required at his resentencing; but if

neither of these circumstances exists, then modification of

the defendant's sentence may be done in his absence. See,

e.g., United States v. Brown, 879 F.3d 1231, 1239–40 (11th

Cir. 2018); cf. United States v. Arrous, 220 F.3d 355, 361–

62 (2d. Cir. 2003) (holding that the defendant should have

been present for his resentencing following remand from a

successful appeal, but that his exclusion from the proceeding

was harmless error because his new sentence was less onerous

than his previous one, and his presence would not have

affected the outcome of his resentencing).

*5 The first consideration—whether the modified sentence

might be more onerous than the original—fits well with Rule

43's language that “[a] defendant need not be present” for

“reduction of sentence under ... 18 U.S.C. § 3582(c).” Fed.

R. Crim. P. 43(b)(4) (emphasis added). And it is a very simple

matter to observe that in the instant cases, these Defendants

cannot receive more onerous sentences than their original

ones. Section 404(b) of the First Step Act, by its own terms,

only authorizes courts to “impose a reduced sentence.”

However, the second consideration—whether the

resentencing court will be required to exercise a significant

amount of discretion while considering some matter that

was not considered at the original sentencing proceeding

—is not so straightforward here. It seems less grounded

in the language of Rule 43 than in the constitutional right

that this Rule seeks to protect: the guarantee, in the Fifth

Amendment's Due Process Clause, of a defendant's “right

to be present at any stage of the criminal proceeding that is

critical to its outcome if his presence would contribute to the

fairness of the procedure.” See

Kentucky v. Stincer, 482

U.S. 730, 745 (1987); 3 see also

United States v. Jackson,

923 F.2d 1494, 1496 (11th Cir. 1991) (describing Rule 43(a)

as “constitutionally based”).

For guidance in how this second consideration applies to

the First Step Act, it is useful to look at the United States

Supreme Court's decision in

Dillon v. United States, 560

U.S. 817 (2010). Of course that case was not concerned with

the First Step Act, which did not yet exist. But the majority

opinion in Dillon did make some very salient observations

about

18 U.S.C. § 3582(c)(2)—the previously-mentioned

statute authorizing reduction of an imprisonment term if

the Guidelines range on which a defendant's sentence was

based has subsequently been lowered by the Sentencing

Commission. With respect to that statute, the Supreme Court

reasoned:

By its terms,

§ 3582(c)(2) does not authorize a

sentencing or resentencing proceeding. Instead, it provides

for the “modif[ication of] a term of imprisonment” by

giving courts the power to “reduce” an otherwise final

6a 4

United States v. Franklin, Slip Copy (2019)

2019 WL 3848946

sentence in circumstances specified by the Commission.

avoid arbitrary and unwarranted sentencing disparities, see

28 U.S.C. § 994(a)(2)(C) (referring to

Compare

3582(c)(2) as a “sentence modification provisio[n]”) with

18 U.S.C. § 3553(a)(6), counsels in favor of conducting

these proceedings in a manner analogous to what would

occur if the United States Sentencing Commission, rather than

Congress, had authorized the sort of retroactive sentencing

relief contemplated by Section 404 of the First Step Act. That

is to say, first this Court will recalculate each Defendant's

advisory sentencing range under the United States Sentencing

Guidelines, but only altering those variables which depend

on the statutory penalties that were amended by the Fair

Sentencing Act and made retroactive by the First Step Act.

18 U.S.C. § 3742(f) (authorizing courts of appeals

to remand “for further sentencing” upon a finding

§ 3742(g) (establishing the terms of

of error) and

“sentencing upon remand” and describing the proceeding

as a “resentenc[ing]” (capitalization omitted)). It is also

notable that the provision applies only to a limited

class of prisoners—namely, those whose sentence was

based on a sentencing range subsequently lowered by the

Commission. Section 3582(c)(2)'s text, together with its

narrow scope, shows that Congress intended to authorize

only a limited adjustment to an otherwise final sentence and

not a plenary resentencing proceeding.

See

560 U.S. at 825-26 (alterations in original).

This passage from Dillon is instructive because there are

strong textual and functional similarities between

U.S.C. § 3582(c)(2) and Section 404 of the First Step

Act. As already noted, like

§ 3582(c)(2), Section 404

only authorizes reduction of an otherwise final sentence.

§ 3582(c)(2), Section 404 applies only

And similarly to

to a limited class of prisoners—namely, those who were

sentenced for federal crimes with statutory penalties that were

subsequently modified by section 2 or 3 of the Fair Sentencing

Act. This policy decision of Congress to provide an avenue for

retroactive sentencing relief to a particular class of prisoners is

quite different from the purpose embodied by

See

U.S.S.G. § 1B1.10(b)(1). Then, the Court will decide

whether to award each Defendant a reduction from his

previously-imposed term of imprisonment, but in no event

will the Court reduce a Defendant's term to an amount that is

less than the minimum of the recalculated sentencing range.

18 U.S.C. §

3742(f),

(g), and

28 U.S.C. § 2255, which is to remedy

situations where an individual defendant's sentence may have

been based upon, or the result of, some legal, jurisdictional,

or constitutional error or defect. For these reasons, then, this

Court concludes that Section 404 of the First Step Act does

not contemplate a plenary resentencing at which a defendant's

presence is required.

*6 Nonetheless, it is clear that Section 404 vests quite

a bit of discretion in the judge, including with respect to

whether even to award any relief at all. As subsection (c)

states: “Nothing in this section shall be construed to require

a court to reduce any sentence pursuant to this section.”

Given this broad grant of discretion, the question arises how

it should be exercised. This Court believes that the need to

id. at § 1B1.10(b)(2)(A).

The Court is adopting this process in order to avoid at

least two potential arbitrary sentencing disparities. One such

disparity would be between career offenders who were

sentenced for crack offenses, and all other career offenders.

Under the Sentencing Guidelines, it makes no difference to

one's career-offender status whether his instant offense of

conviction is related to crack cocaine as opposed to any other

drug. It strikes this Court as unlikely that Congress intended

for Section 404 of the First Step Act to provide certain career

offenders with underlying crack-cocaine convictions a unique

opportunity for collaterally attacking their career-offender

designations while leaving career offenders with underlying

convictions for other drugs out in the cold.

Another such disparity would be within the set of career

offenders who were sentenced for crack offenses—between

those who were sentenced for offenses committed before

August 3, 2010, and those who were sentenced for offenses

committed after that date. Doubtless there are individuals

in the latter group who would like the opportunity to

challenge their career-offender designations with the benefit

of subsequent developments in caselaw. However, Section

404(c) instructs that “[n]o court shall entertain a motion made

under this section to reduce a sentence if the sentence was

previously imposed ... in accordance with the amendments

made by sections 2 and 3 of the Fair Sentencing Act of

2010....” It is difficult to see why Congress would have

imposed this limitation if it had intended for Section 404 of

the First Step Act to be a mechanism by which crack-cocaine

7a 5

United States v. Franklin, Slip Copy (2019)

2019 WL 3848946

offenders could retroactively challenge their career-offender

status.

id. at § 404(c) (“Nothing in this section shall be construed

to require a court to reduce any sentence pursuant to this

section.” (emphasis added)).

This Court is not going so far as to say it believes Section

404 requires it to conform these proceedings to the process

described in

U.S.S.G. § 1B1.10(b). After all, Section

404 of the First Step Act says nothing about the United

States Sentencing Guidelines. And 18 U.S.C. § 3582(c)(1)

(B)—which authorizes modification of previously-imposed

terms of imprisonment “to the extent otherwise expressly

permitted by statute”—is the only subsection of

§ 3582(c)

that does not contain any requirement that the modification

be “consistent with applicable policy statements issued by

the Sentencing Commission.” Perhaps there are other ways

of conducting these proceedings that might also effectively

avoid the types of sentencing disparities that this Court

is seeking to avoid. But the procedure that the Court has

outlined here is reasonably calculated to accomplish these

ends, and is one that this Court believes it has the discretion to

implement. See First Step Act of 2018, § 404(b) (“A court ...

may ... impose a reduced sentence....” (emphasis added));

III. CONCLUSION

IT IS THEREFORE ORDERED that each Defendant's

Motion to Reduce Sentence is DENIED to the extent that it

is requesting a plenary resentencing at which the Defendant

would be present. But the Court will DEFER RULING on

these Motions to the extent that they are merely requesting

sentence reductions, until such time as the Court has

independently recalculated the advisory sentencing ranges

for these Defendants under the United States Sentencing

Guidelines.

*7 IT IS SO ORDERED on this 15 th day of August, 2019.

All Citations

Slip Copy, 2019 WL 3848946

Footnotes

The Sentencing Commission has promulgated some amendments to the Guidelines that retroactively

reduced base offense levels for drug-trafficking offenses. See Amendments 782, 788. However, these

Defendants' career-offender statuses prevented those retroactive amendments from having any effect on

their ultimate Guidelines sentencing ranges. See, e.g., United States v. Franklin, Case No. 5:08-cr-50060,

Doc. 69 (denying Mr. Franklin's motion for reduction of sentence because he “is a career offender,” making

the issue “moot” because “[a]fter application of the reduction, the offense level is the same as the range the

defendant was previously subject to”).

Prior to enactment of the First Step Act, a variety of Circuits held, or at least implied, that these two instances—

appellate remand or collateral attack—were the only instances where subsequent modification of a sentence

was “otherwise expressly permitted by statute” within the meaning of

18 U.S.C. § 3582(c)(1)(B). See,

e.g.,

United States v. Goines, 357 F.3d

United States v. Triestman, 178 F.3d 624, 629 (2d. Cir. 1999);

469, 476 (4th Cir. 2004);

United States v. Garcia-Quintanilla, 574 F.3d 295, 303 (5th Cir. 2009);

States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001);

United

United States v. Penson, 526 F.3d 331, 335 (6th Cir.

2008);

United States v. Bailey, 777 F.3d 904, 906-07 (7th Cir. 2015).

Technically, Kentucky v. Stincer is concerned with the Due Process Clause of the Fourteenth Amendment.

See

482 U.S. at 745. But that clause simply extends the same guarantee with respect to states as the

Fifth Amendment's Due Process Clause already provides against the federal government. Compare id. with,

e.g.,

United States v. Gagnon, 470 U.S. 522, 526–27 (1985).

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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.