Petition for Writ of Certiorari — Nolan Nathaniel Edwards, Petitioner v. United States

Supreme Court briefOct 8, 2021

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No. __________

IN THE

Supreme Court of the United States

____________

NOLAN EDWARDS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

____________

PETITION FOR A WRIT OF CERTIORARI

____________

A. Fitzgerald Hall, Esq.

Federal Defender

Middle District of Florida

Adam Labonte, Esq.*

*Counsel of Record

Research and Writing Attorney

Federal Defender’s Office

400 N. Tampa Street, Suite 2700

Tampa, FL 33602

Telephone: (813) 228-2715

Facsimile: (813) 228-2562

E-mail: adam_labonte@fd.org

QUESTIONS PRESENTED FOR REVIEW

I.

Whether § 404 of the First Step Act allows a district court to

impose a term of supervised release not previously imposed, as it was

not a component of the original sentence

II.

Whether the Due Process Clause requires a defendant’s presence

at any such resentencing where a new sentence component, including a

term of supervised release not previously imposed, is added to a

sentence, thereby putting him on notice of the conditions that could

subject him to further terms to incarceration in the event of violation.

i

LIST OF PARTIES

There are no parties to the proceeding other than those named in the

caption of the case.

RELATED CASES

United States District Court (M.D. Fla.):

• United States v. Edwards, No. 8:96-cr-332-JDW-MAP, 2019 WL

3858171 (M.D. Fla. Aug. 16, 2019)

United States Court of Appeals (11th Cir.):

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

ii

TABLE OF CONTENTS

Questions Presented for Review ................................................................ i

List of Parties ............................................................................................ ii

Related Cases ............................................................................................ ii

Table of Contents .....................................................................................iii

Table of Authorities .................................................................................. iv

Petition for a Writ of Certiorari ................................................................ 1

Opinion Below ........................................................................................... 1

Basis for Jurisdiction ................................................................................ 1

Relevant Constitutional/Statutory Provisions ......................................... 2

Statement of the Case ............................................................................... 7

Reasons for Granting the Writ................................................................ 11

Conclusion ............................................................................................... 21

Appendix:

Eleventh Circuit’s Opinion............................................................. 1a

iii

TABLE OF AUTHORITIES

Cases

Page(s)

In re Bonner, 151 U.S. 242 (1894) ........................................................... 13

Bozza v. United States, 330 U.S. 160 (1947) ........................................... 13

Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................. 16

Johnson v. United States, 529 U.S. 694 (2000)....................................... 12

Kentucky v. Stincer, 482 U.S. 730 (1987) ................................................ 17

Murphy v. Commonwealth of Massachusetts, 177 U.S. 155 (1900)........ 13

Randall v. Loftsgaarden, 478 U.S. 647 (1986)........................................ 11

Reynolds v. United States, 98 U.S. 145 (1878)........................................ 13

United States v. Balon, 384 F.3d 38 (2d Cir. 2004) ................................ 17

United States v. Bates, 213 F.3d 1336 (11th Cir. 2000).......................... 18

United States v. Brown, 117 F.3d 471 (11th Cir. 1997) .......................... 16

United States v. Denson, 963 F.3d 1080 (11th Cir. 2020) .......... 11, 18, 19

United States v. Edwards, No. 8:96-cr-332-JDW-MAP,

2019 WL 3858171 (M.D. Fla. Aug. 16, 2019) ............................... ii, 8

United States v. Edwards, 167 F.3d 539 (11th Cir. 1998) ...................... 13

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

United States v. Guagliardo, 278 F.3d 868 (9th Cir. 2002) .................... 16

United States v. Haymond, 139 S. Ct. 2369 (2019) ................................ 12

iv

TABLE OF AUTHORITIES – cont’d

Cases

Page(s)

United States v. Holloway, 956 F.3d 660 (2d Cir. 2020)......................... 10

United States v. Jackson, 945 F.3d 315 (5th Cir. 2019) ......................... 18

United States v. Sanford, 806 F.3d 954 (7th Cir. 2015) ......................... 18

United States v. Simmons, 343 F.3d 72 (2d Cir. 2003)........................... 17

United States v. Smith, 982 F.3d 106 (2d Cir. 2020) .............................. 18

United States v. Sutton, 962 F.3d 979 (7th Cir. 2020) ........................... 10

United States v. Thomason, 940 F.3d 1166 (11th Cir. 2019) ................. 17

United States v. Tidwell, 178 F. 3d 946 (7th Cir. 1999) ......................... 17

United States v. Williams, 943 F.3d 841 (8th Cir. 2019) ........................ 18

United States v. Wirsing, 943 F.3d 175 (4th Cir. 2019).......................... 10

Statutes

18 U.S.C. § 3553 .......................................................................... 12, 17–18

18 U.S.C. § 3582 .............................................................................. passim

18 U.S.C. § 3583 .......................................................................... 4, 5, 6, 12

21 U.S.C. § 841 .................................................................................. 3, 6, 7

21 U.S.C. § 846 .......................................................................................... 7

21 U.S.C. § 851 .......................................................................................... 7

v

TABLE OF AUTHORITIES – cont’d

Cases

Page(s)

28 U.S.C. § 1254 ........................................................................................ 1

28 U.S.C. § 2255 ...................................................................................... 13

124 Stat. 2372 ........................................................................................ 2, 3

132 Stat. 5194 ........................................................................................ 3, 7

Other Authorities

Fed. R. Crim. P. 32.1(c) ............................................................... 14, 17, 19

Fed. R. Crim. P. 35 .................................................................................. 15

Fed. R. Crim. P. 36 .................................................................................. 15

Fed. R. Crim. P. 43 ................................................................ 12, 17, 19, 20

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Nolan Edwards respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of Appeals

for the Eleventh Circuit.

OPINION BELOW

The Eleventh Circuit’s opinion, 997 F.3d 1115 (11th Cir. 2021), is

provided in the petition appendix (Pet. App.) at 1a.

BASIS FOR JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254.

The Eleventh Circuit issued its decision affirming the district court’s

partial grant of Mr. Edwards’ motion for relief under § 404 of the First

Step Act. Mr. Edwards has timely filed this petition pursuant to this

Court’s Order Regarding Filing Deadlines (Mar. 19, 2020) (extending

deadlines due to COVID-19) and Rule 29.2.

1

RELEVANT CONSTITUTIONAL/STATUTORY PROVISIONS

A.

The Due Process Clause

The Due Process Clause provides that “[No person shall be] be

deprived of life, liberty, or property, without due process of law[.]” U.S.

Const. amend. V.

B.

The First Step Act of 2018

Entitled “Application of the Fair Sentencing Act,” Section 404 of

the First Step Act of 2018 provides in full:

(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

Prisons, the attorney for the Government, or the court,

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

Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372)

were in effect at the time the covered offense was committed.

(c) LIMITATIONS.—No court shall entertain a motion

made under this section to reduce a sentence if the sentence

was previously imposed or previously reduced in accordance

with the amendments made by sections 2 and 3 of the Fair

Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372)

or if a previous motion made under this section to reduce the

sentence was, after the date of enactment of this Act, denied

2

after a complete review of the motion on the merits. Nothing

in this section shall be construed to require a court to reduce

any sentence pursuant to this section.

Pub L. No. 115-391, 132 Stat. 5194, § 404.

C.

The Fair Sentencing Act of 2010

Entitled “Cocaine Sentencing Disparity Reduction,” Section 2 of

the Fair Sentencing Act of 2010 provides, in relevant part:

(a) CSA.—Section 401(b)(1) of the Controlled Substances Act

(21 U.S.C. 841(b)(1)) is amended—

(1) in subparagraph (A)(iii), by striking ‘‘50 grams’’ and

inserting ‘‘280 grams’’; and

(2) in subparagraph (B)(iii), by striking ‘‘5 grams’’ and

inserting ‘‘28 grams’’.

Pub. L. No. 111-220, 124 Stat. 2372, § 2(a).

D.

21 U.S.C. § 841

As amended by the Fair Sentencing Act of 2010, 21 U.S.C. § 841

provides, in pertinent part:

(a) Unlawful acts Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled

substance;

***

3

(b) Penalties Except as otherwise provided in section 849, 859,

860, or 861 of this title, any person who violates subsection (a) of

this section shall be sentenced as follows:

(1)

(A) In the case of a violation of subsection (a) of this section

involving—

***

(iii) 280 grams or more of a mixture or substance

described in clause (ii) [i.e., cocaine] which contains

cocaine base;

***

such person shall be sentenced to a term of

imprisonment which may not be less than 10 years or

more than life and if death or serious bodily injury

results from the use of such substance shall be not less

than 20 years or more than life . . . . If any person

commits such a violation after a prior conviction for a

serious drug felony or serious violent felony has become

final, such person shall be sentenced to a term of

imprisonment of not less than 15 years and not more

than life imprisonment and if death or serious bodily

injury results from the use of such substance shall be

sentenced to life imprisonment . . . . If any person

commits a violation of this subparagraph or of section

849, 859, 860, or 861 of this title after 2 or more prior

convictions for a serious drug felony or serious violent

felony have become final, such person shall be

sentenced to a term of imprisonment of not less than

25 years . . . . Notwithstanding section 3583 of title 18,

any sentence under this subparagraph shall, in the

absence of such a prior conviction, impose a term of

supervised release of at least 5 years in addition to

such term of imprisonment and shall, if there was such

a prior conviction, impose a term of supervised release

of at least 10 years in addition to such term of

imprisonment. . . .

4

***

(B) In the case of a violation of subsection (a) of this section

involving—

***

(iii) 28 grams or more of a mixture or substance

described in clause (ii) [i.e., cocaine] which contains

cocaine base;

***

such person shall be sentenced to a term of

imprisonment which may not be less than 5 years and

not more than 40 years and if death or serious bodily

injury results from the use of such substance shall be

not less than 20 years or more than life . . . If any

person commits such a violation after a prior conviction

for a serious drug felony or serious violent felony has

become final, such person shall be sentenced to a term

of imprisonment which may not be less than 10 years

and not more than life imprisonment and if death or

serious bodily injury results from the use of such

substance shall be sentenced to life imprisonment . . .

Notwithstanding section 3583 of title 18, any sentence

imposed under this subparagraph shall, in the absence

of such a prior conviction, include a term of supervised

release of at least 4 years in addition to such term of

imprisonment and shall, if there was such a prior

conviction, include a term of supervised release of at

least 8 years in addition to such term of

imprisonment . . . .

(C) In the case of a controlled substance in schedule I or II

. . . , except as provided in subparagraphs (A), (B), and (D),

such person shall be sentenced to a term of imprisonment of

not more than 20 years and if death or serious bodily injury

results from the use of such substance shall be sentenced to

a term of imprisonment of not less than twenty years or

more than life . . . . If any person commits such a violation

5

after a prior conviction for a felony drug offense has become

final, such person shall be sentenced to a term of

imprisonment of not more than 30 years and if death or

serious bodily injury results from the use of such substance

shall be sentenced to life imprisonment . . . .

Notwithstanding section 3583 of title 18, any sentence

imposing a term of imprisonment under this paragraph

shall, in the absence of such a prior conviction, impose a

term of supervised release of at least 3 years in addition to

such term of imprisonment and shall, if there was such a

prior conviction, impose a term of supervised release of at

least 6 years in addition to such term of imprisonment. . . .

21 U.S.C. §§ 841(a)(1), (b)(1)(A)–(C).

6

STATEMENT OF THE CASE

In 1997, a jury found Petitioner Nolan Edwards guilty of one

count of conspiracy to possess with intent to distribute cocaine base, in

violation of 21 U.S.C. § 846, and one count of possession with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Based on

his prior convictions, the government filed an information pursuant to

21 U.S.C. § 851, subjecting Mr. Edwards to a mandatory Life sentence.

He was subsequently sentenced to concurrent Life sentences as to both

counts. However, in imposing the Life sentence, the sentencing court

did not order any term of supervised release.

On August 12, 2019, Mr. Edwards filed a motion to reduce his

sentence pursuant to the First Step Act, maintaining that he was

eligible for relief as he was convicted of “covered offenses” as defined in

§ 404 of the First Step Act. 1 Doc. 235. Mr. Edwards requested that his

sentence be reduced to 262 months, or time served, whichever is

1 Signed into law on December 21, 2018, § 404(b) of the First Step Act makes

retroactive the Fair Sentencing Act of 2010’s reduction in the disparity between

crack and powder cocaine sentences to defendants whose offense occurred before the

Act’s passage. First Step Act of 2018, Pub. L. No. 115-391 (S. 756), 132 Stat. 5194

(enacted Dec. 21, 2018). Mr. Edwards is one such defendant who has borne the

consequence of the disparate drug sentencing policy that Congress sought to correct

by enacting the legislation.

7

greater. Id. The government agreed to the reduction in the term of

imprisonment, but the parties disputed whether the district court could

belatedly impose a term of supervised release that was not originally

imposed when Mr. Edwards was sentenced to Life imprisonment in

1997.

The district court granted in part Mr. Edwards’ motion, reducing

Mr. Edwards’ prison sentence and imposing “concurrent 8 year terms of

supervised release, subject to the standard conditions of supervised

release adopted in this district. The mandatory drug testing

requirements of the Violent Crime Control Act are imposed.” United

States v. Edwards, No. 8:96-cr-332-JDW-MAP, 2019 WL 3858171, at *3

(M.D. Fla. Aug. 16, 2019). The district court denied Mr. Edwards’

request for a hearing with his presence, stating “Rule 43(b), Fed. R.

Crim. P. expressly provides that a defendant ‘need not be present’ when

his sentence is reduced under 18 U.S.C. § 3582(c).” Id. Mr. Edwards

timely appealed the district court’s order. Doc. 242.

On appeal, Mr. Edwards maintained that the district court erred

in determining that it possessed the authority under § 404 of the First

Step Act to impose terms of supervised release not previously imposed,

8

as supervision is a component of the original sentence. Alternatively, if

the district court did have such authority, Mr. Edwards maintained

that due process required his presence at any such plenary resentencing

where a component of a sentence—here, supervised release—not

previously imposed was added to put him on notice of the conditions of

supervision that could subject him to further terms of incarceration in

the event those conditions were violated.

The government maintained that the district court was required

to impose the term of supervised release. It further maintained that

this proceeding was under 18 U.S.C. § 3582(c), and Rule 43(b) states

that a defendant “need not be present” when a court reduces a sentence

under that provision.

The court of appeals affirmed the district court’s decision. The

Eleventh Circuit held that “[§ 404 of] the First Step Act is a selfcontained, self-executing, independent 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). The panel held that authority of district courts is,

9

therefore, not necessarily cabined by 18 U.S.C. § 3582(c). 2 Id. at 1119

(“§ 404(b)’s broad authorization to reduce ‘sentence[s]’ is, to put the

matter plainly, too big to fit into § 3582(c)(1)(B)’s narrower

authorization regarding modifications of ‘term[s] of imprisonment.’”).

The appeals court then rejected Mr. Edwards argument that the district

court exceeded its statutory authority when it included a new term of

supervised release in his reduced sentence, stating that “[s]o long as a

defendant’s overall ‘sentence’ is ‘reduced,’ therefore, it seems to us that

the authority that § 404(b) confers is broad enough to empower a court

to impose a new term of supervised release, it being one aspect of the

‘sentence.’” Id. at 1121.

Relegated to two footnotes, the appeals court also cursorily

rejected Mr. Edwards’ due-process contention that a hearing with his

presence was required when the new term of supervision was imposed.

“Because we aren’t faced with a scenario in which the district court

imposed any non-standard conditions of supervised release, we have no

The Eleventh Circuit recognized that this holding diverged somewhat from the

reasoning of other circuits. See Edwards, 997 F.3d at 1119−20 nn.2, 3

(distinguishing holding from the reasoning in United States v. Sutton, 962 F.3d 979,

981 (7th Cir. 2020); United States v. Wirsing, 943 F.3d 175, 185 (4th Cir. 2019), as

amended (Nov. 21, 2019); United States v. Holloway, 956 F.3d 660, 666 (2d Cir.

2020)).

2

10

occasion to determine what process or hearing, if any, would be due in

that circumstance.” Id. at 1120 n.4. “As already noted, though, since

Edwards filed his briefs in this case, we held in [United States v.

Denson, 963 F.3d 1080, 1082 (11th Cir. 2020)] 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 reduced sentence

under the Act.’” Id. at 1121 n.6.

REASONS FOR GRANTING THE WRIT

I.

The district court was without authority under § 404

of the First Step Act to impose a term of supervised

release that was not a component of the original

sentence.

The plain language of the First Step Act states that a district

court may “impose a reduced sentence as if sections 2 and 3 of the [2010

FSA,] were in effect at the time the covered offense was committed.”

§ 404(b) (emphasis added); see also Randall v. Loftsgaarden, 478 U.S.

647, 656 (1986) (“[T]the starting point in construing a statute is the

language of the statute itself.”). Therefore, § 404 grants a district court

the authority only to reduce a previously imposed sentence, including a

term of supervision. In this context, a district court may not add any

penalty, or an additional component of a sentence—including a term of

11

supervised release—that it had not previously imposed; to do so would

exceed the district court’s authority to reduce a previously imposed

sentence. Accordingly, as supervised release was not imposed as part of

Mr. Edwards’ original sentence, the district court lacked the authority

to now impose such a penalty component as new eight-year terms of

supervised release.

Any term of supervised release is considered part of the original

sentence. See 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to

a term of imprisonment for a felony or a misdemeanor, may include as a

part of that sentence a requirement that the defendant be placed on a

term of supervised release after imprisonment . . . .” (emphasis added));

see also United States v. Haymond, 139 S. Ct. 2369, 2379–80 (2019)

(citing Johnson v. United States, 529 U.S. 694, 700 (2000)) (“Today, we

merely acknowledge that an accused’s final sentence includes any

supervised release sentence he may receive.”).

Furthermore, a defendant’s presence is required at sentencing.

Fed. R. Crim. P. 43(a)(3). When imposing any sentence, including a

term of supervised release, a district court must also orally pronounce

both its overall imposition and its conditions. See 18 U.S.C. § 3553(c)

12

(“The court, at the time of sentencing, shall state in open court the

reasons for its imposition of the particular sentence . . . .”).

The district court did not impose terms of supervised release at

Mr. Edwards’ August 28, 1997 sentencing. “It is well established that a

sentence which does not comply with the letter of the criminal statute

which authorizes it is so erroneous that it may be set aside on appeal

. . . or in habeas corpus proceedings.” Bozza v. United States, 330 U.S.

160, 166 (1947) (citing Reynolds v. United States, 98 U.S. 145, 168, 169

(1878); Murphy v. Commonwealth of Massachusetts, 177 U.S. 155, 157

(1900); and In re Bonner, 151 U.S. 242 (1894)). However, these matters

were not before the district courts under either of these avenues. Mr.

Edwards appealed his sentence, which was affirmed. United States v.

Edwards, 167 F.3d 539 (11th Cir. 1998) (table). Mr. Edwards moved to

vacate his convictions and sentences under 28 U.S.C. § 2255, which the

district court also denied. Doc. 176. Neither the government nor the

district court raised the issue of imposing a term of supervised release

at those times.

Accordingly, the district court’s errors at the original sentencing—

failure to impose a term of supervision where it concluded that Mr.

13

Edwards’ Life sentence precluded imposition of a term of supervised

release—and the government’s failure to object, cannot be remedied

over two decades later by now imposing terms of supervised release in

this First Step Act proceeding. To do so would overlook § 404’s plain

language, which allows the district courts the authority only to “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.”

Rule 32.1(c) addresses the procedural requirements for modifying

conditions of supervised release. “Before modifying the conditions of . . .

supervised release, the court must hold a hearing, at which the person

has the right to counsel and an opportunity to make a statement and

present any information in mitigation.” Fed. R. Crim. P. 32.1(c)(1).

However, a “hearing is not required if . . . the relief sought is favorable

to the person and does not extend the term . . . of supervised release; and

. . . an attorney for the government has received notice of the relief

sought, has had a reasonable opportunity to object, and has not done

so.” Fed. R. Crim. P. 32.1(c)(2) (emphasis added). Because Rule 32.1

contemplates modification of conditions previously imposed, it is

inapplicable here.

14

It is too late for the district courts to correct errors related to the

failure to impose a term of supervised release. See Fed. R. Crim. P.

35(a) (“Within 14 days after sentencing, the court may correct a

sentence that resulted from arithmetical, technical, or other clear

error.”).3 Nor is this a clerical error that the district may could correct

at any time. See Fed. R. Crim. P. 36.

Accordingly, where there is no legal mechanism to now impose a

new component of a sentence not previously imposed, the district court

exceeded the authority afforded it under § 404 by imposing eight-year

terms of supervised release to Mr. Edwards’ sentence that was not

previously imposed. The case should be remanded for imposition of a

reduced sentence with no term of supervised release imposed.

Rule 35 was amended in 1987, before Mr. Edwards was charged,

convicted, and sentenced.

3

15

II.

In the event the district court had the authority to

impose a term of supervised release not previously

imposed, due process requires a defendant’s presence

at any such resentencing. This is necessary to put the

defendant on notice of the conditions that could

subject him to further terms of incarceration in the

event the conditions were violated.

It has long been recognized that supervised release is a restriction

on a supervisee’s liberty. See United States v. Brown, 117 F.3d 471, 475

(11th Cir. 1997) (“[H]e was still subject to the restrictions on liberty

that accompany a term of supervised release. Supervised release carries

with it the possibility of revocation and additional jail time.”). Due

process necessitates that “laws give the person of ordinary intelligence a

reasonable opportunity to know what is prohibited, so that he may act

accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). This

principle applies to supervised release conditions: there is “a separate

due process right to conditions of supervised release that are

sufficiently clear to inform [a supervisee] of what conduct will result in

his being returned to prison.” United States v. Guagliardo, 278 F.3d

868, 872 (9th Cir. 2002). Therefore, the Due Process Clause requires

that “[c]onditions of supervised release . . . ‘give the person of ordinary

intelligence a reasonable opportunity to know what is prohibited, so

16

that he may act accordingly.’” United States v. Balon, 384 F.3d 38, 43

(2d Cir. 2004) (quoting United States v. Simmons, 343 F.3d 72, 81 (2d

Cir. 2003)).

The Due Process Clause guarantees 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.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987); see also

United States v. Tidwell, 178 F. 3d 946, 950–951 (7th Cir. 1999) (Ripple,

J., dissenting) (“For the first time, the court was required to give

thoughtful assessment to the length of time Mr. Tidwell would spend in

prison. Mr. Tidwell therefore had a right to be present at the rehearing

and to address the court pursuant to Rule 32.”). If the “district court

exercises its discretion so significantly that the [sentence] modification

is a critical stage where the defendant’s presence could make a

difference,” a hearing requiring the defendant’s presence is necessary.

United States v. Thomason, 940 F.3d 1166, 1171, 1173 (11th Cir. 2019)

Federal Rule of Criminal Procedure 43(a)(3) requires the

defendant’s physical presence when a sentence is imposed, and the

sentencing court must orally pronounce its sentence. See 18 U.S.C.

17

§ 3553(c); United States v. Sanford, 806 F.3d 954, 960 (7th Cir. 2015)

(“only punishments stated orally, in open court, at sentencing are

valid”); see also United States v. Bates, 213 F.3d 1336, 1340 (11th Cir.

2000) (“When a sentence pronounced orally and unambiguously

conflicts with the written order of judgment, the oral pronouncement

governs.”).

Disturbing the district court’s prior determination to not impose

terms of supervised release, to which the government did not object,

requires a plenary resentencing of Mr. Edwards. Several lower courts

have held that plenary resentencings are not authorized under § 404 of

the First Step Act.4 But those holdings are of limited applicability here.

In the event a previously imposed term of imprisonment or supervised

release is merely reduced, a hearing may not be necessary. However, as

here, if the sentencing court imposes a term of supervised release or

other additional component of a sentence to which the defendant was

not previously sentenced, the Due Process Clause requires that court to

See United States v. Denson, 963 F.3d 1080, 1086–87 (11th Cir.

2020); United States v. Williams, 943 F.3d 841, 843–44 (8th Cir. 2019);

United States v. Jackson, 945 F.3d 315, 321 (5th Cir. 2019); United

States v. Smith, 982 F.3d 106, 112 (2d Cir. 2020).

4

18

have a hearing, with the defendant present. Thus the defendant is put

on notice of the conditions to which he is subject, violation of which

could result in his return to custody.

Mr. Edwards argued these due process issues below. In its

response in the district court, the government did not address the due

process arguments raised. Instead, the government contended that

Rules 43 and 32.1(c) were not applicable when the relief sought is under

18 U.S.C. § 3582(c). Neither did the district court address the due

process arguments.

On appeal, the circuit court gave short shrift to this contention,

relying on prior precedent that a defendant was not entitled to a

hearing in a § 404 proceeding. Edwards, 997 F.3d at 1121 n.6 (“[S]ince

Edwards filed his briefs in this case, we held in Denson 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 reduced

sentence under the Act.’” However, the Denson case cited for this

reasoning is undermined by the reasoning of the Edwards’ court that 18

U.S.C. § 3582(c)(1)(B) did not control. The Denson court reasoned that

Fed. R. Crim. P. 43 expressly provides that neither hearing nor

19

presence is required when a court modifies or corrects his sentence

pursuant to a 18 U.S.C. § 3582(c) proceeding. 963 F.3d at 1087. If § 404

is a self-executing statute, then Rule 43’s limitation on a hearing in a §

3582(c) proceeding has no application in a § 404 proceeding.

In any event, Mr. Edwards was not present when the concurrent

terms of supervised release were imposed upon him, nor was he

informed by the district court what those terms might be and the

potential penalties he might face were those conditions to be violated.

Summarily imposing conditions of supervised release in a written order,

without a hearing, raises concerns of the notice afforded to Mr.

Edwards. Due process requires more.

If the district court’s authority includes imposition of new terms of

supervised release as to Mr. Edwards, this would require a plenary

resentencing. A plenary resentencing hearing requires Mr. Edwards’

presence at a hearing at which any term of supervised release be orally

imposed pursuant to the Due Process Clause. Accordingly, at a

minimum, this case should be remanded with instructions that the

district court hold a hearing, with Mr. Edwards present, at which the

district court must orally impose the new sentence components of terms

20

of supervised release, putting Mr. Edwards on notice of the conditions

to which he is subject and the penalties he might face upon their

violation.

CONCLUSION

For the foregoing reasons, the petition should be granted.

Respectfully submitted,

A. Fitzgerald Hall, Esq.

Federal Defender

Middle District of Florida

/s/ Adam Labonte

Adam Labonte, Esq.*

*Counsel of Record

Research and Writing Attorney

Federal Public Defender’s Office

400 N. Tampa Street, Suite 2700

Tampa, FL 33602

Telephone: (813) 228-2715

Facsimile: (813) 228-2562

E-mail: adam_labonte@fd.org

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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.

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