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
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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.