Opposition Brief — Michael Harper, Petitioner v. United States

Supreme Court briefNov 9, 2023

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No. 23-27

In the Supreme Court of the United States

MICHAEL HARPER, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Acting Assistant Attorney

General

SOFIA M. VICKERY

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the district court erred in denying petitioner’s motion for a discretionary sentence reduction

under Section 404 of the First Step Act of 2018, Pub. L.

No. 115-391, 132 Stat. 5222, where petitioner was sentenced under a Sentencing Guideline applicable to firstdegree murder in light of his role as the getaway driver

in a murder.

(I)

ADDITIONAL RELATED PROCEEDINGS

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

United States v. Harper, No. 08-cv-21622 (Sept. 15,

2011)

United States v. Harper, No. 14-cv-21254 (Aug. 27,

2014)

United States v. Harper, No. 14-cv-22895 (Sept. 17,

2014)

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

United States v. Harper, No. 11-15472 (May 4, 2012)

United States v. Harper, No. 14-14788 (Dec. 18,

2015)

United States v. Harper, No. 14-14791 (Feb. 18,

2015)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 9

Conclusion ................................................................................... 15

TABLE OF AUTHORITIES

Cases:

Apprendi v. New Jersey, 530 U.S. 466 (2000)............. 4, 9, 10

Concepcion v. United States,

142 S. Ct. 2389 (2022) .................................................. 2, 8-11

McQuiggin v. Perkins, 569 U.S. 383 (2013) ........................ 10

Parker Drilling Mgmt. Servs., Ltd. v. Newton,

139 S. Ct. 1881 (2019) ......................................................... 10

Terry v. United States, 141 S. Ct. 1858, (2021) ..................... 5

United States v. Booker, 543 U.S. 220 (2005) ....................... 4

United States v. Boulding,

960 F.3d 774 (6th Cir. 2020) ............................................... 12

United States v. Jackson,

58 F.4th 1331 (11th Cir. 2023) ....................................... 8, 11

United States v. Jones, 962 F.3d 1290

(11th Cir. 2020), cert. granted, judgment vacated

sub nom. Jackson v. United States, 143 S. Ct. 72

(2022), and opinion reinstated on reconsideration

sub nom. United States v. Jackson, 58 F.4th 1331

(11th Cir. 2023) ...................................................... 6, 7, 11, 12

United States v. Robinson,

9 F.4th 954 (8th Cir. 2021) ........................................... 12, 13

(III)

Cases—Continued:

Page

United States v. Ware,

964 F.3d 482 (6th Cir. 2020) ......................................... 12, 13

United States v. White,

984 F.3d 76 (D.C. Cir. 2020) ......................................... 12, 13

Constitution, statutes, and guidelines:

Fair Sentencing Act of 2010,

Pub. L. No. 111- 220, 124 Stat. 2372 ................................... 4

§ 2, 124 Stat. 2372 ............................................................ 10

§ 2(a), 124 Stat. 2372 ......................................................... 5

§ 3, 124 Stat. 2372 ............................................................ 10

First Step Act of 2018,

Pub. L. No. 115-391, 132 Stat. 5194 .................................... 2

§ 404, 132 Stat. 5222 ....................................... 2, 5, 9, 13-15

§ 404(a), 132 Stat. 5222............................................ 5, 9, 12

§ 404(b), 132 Stat. 5222 ........................................ 5, 6, 9-13

§ 404(c), 132 Stat. 5222 .............................................. 13, 14

18 U.S.C. 3553(a) ..................................................................... 7

21 U.S.C. 841(a)(1) ............................................................... 2, 3

21 U.S.C. 841(b)(1)(A) ......................................................... 5, 7

21 U.S.C. 841(b)(1)(A)(ii) (2006) ............................................. 5

21 U.S.C. 841(b)(1)(A)(iii) (Supp. IV 1986)............................ 3

21 U.S.C. 841(b)(1)(A)(iii) (2006) ............................................ 5

21 U.S.C. 841(b)(1)(B) ............................................................. 5

21 U.S.C. 841(b)(1)(B)(ii) (2006) ............................................. 5

21 U.S.C. 841(b)(1)(B)(iii) (2006) ............................................ 5

21 U.S.C. 846 ........................................................................ 2, 3

28 U.S.C. 2255 ...................................................................... 2, 6

United States Sentencing Guidelines (1998):

§ 2A1.1 ...................................................................... 3, 6, 14

§ 2D1.1(d)(1)....................................................................... 3

In the Supreme Court of the United States

No. 23-27

MICHAEL HARPER, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-4a)

is not published in the Federal Reporter but is available

at 2023 WL 3166351. A prior opinion of the court of appeals (Pet. App. 6a-11a) is not published in the Federal

Reporter but is reprinted at 855 Fed. Appx. 564. The

order of the district court (Pet. App. 19a-22a) denying

petitioner’s motion for a reduced sentence is not published in the Federal Supplement but is available at

2019 WL 8348957. The order of the district court (Pet.

App. 12a-18a) denying petitioner’s motion for reconsideration is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 1, 2023. The petition for a writ of certiorari was

filed on July 6, 2023. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Florida, petitioner

was convicted of conspiring to possess more than five

kilograms of cocaine and more than 50 grams of cocaine

base (crack cocaine) with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 846. Pet. App. 7a. The

district court sentenced petitioner to a term of life imprisonment. Ibid. The court of appeals affirmed, 432

F.3d 1189, and this Court denied a petition for a writ of

certiorari, 551 U.S. 1125. Petitioner unsuccessfully

sought collateral review of his sentence under 28 U.S.C.

2255 on three occasions. See S.D. Fla. 08-cv-21622, Order (Sept. 15. 2011); S.D. Fla. 14-cv-21254, Order (Aug.

27, 2014); S.D. Fla. 14-cv-22895, Order (Sept. 17, 2014).

Following the enactment of the First Step Act of

2018 (First Step Act), Pub. L. No. 115-391, 132 Stat.

5194, petitioner moved for a sentence reduction under

Section 404 of that Act. Pet. App. 19a-20a. The district

court denied the motion, id. at 19a-22a, and the court of

appeals affirmed, id. at 6a-11a. This Court granted petitioner’s petition for a writ of certiorari, vacated the

judgment, and remanded to the court of appeals in light

of Concepcion v. United States, 142 S. Ct. 2389 (2022).

Pet. App. 5a. The court of appeals again affirmed. Id.

at 1a-4a.

1. In the 1990s, petitioner participated in a drug-distribution operation, in which he cooked cocaine to sell

as crack and sold multiple kilograms of cocaine. See

Presentence Investigation Report (PSR) ¶¶ 46-51. Petitioner also drove the getaway car in the murder of a

man whom he believed to have shot his co-conspirators.

PSR ¶¶ 89-91.

In 2000, following a jury trial in the United States

District Court for the Southern District of Florida, petitioner was convicted of conspiring to possess more

than five kilograms of cocaine and more than 50 grams

of crack cocaine with intent to distribute, in violation of

21 U.S.C. 841(a)(1) and 846. Pet. App. 13a; see 432 F.3d

at 1202. The Probation Office assessed that petitioner

was responsible for more than 1.5 kilograms (1500

grams) of crack cocaine. PSR ¶ 112; see Pet. App. 13a.

And it determined that the applicable statutory penalty

range for petitioner’s offense was ten years to life imprisonment under 21 U.S.C. 841(b)(1)(A)(iii) (Supp. IV

1986), which at the time applied to offenses involving

more than 5000 grams of powder cocaine and more than

50 grams of crack cocaine. See PSR ¶ 158.

At sentencing, the district court adopted the Probation Office’s determinations, crediting the witnesses

who testified about petitioner’s responsibility for

the drug offense and his role as the getaway driver in

the murder. Judgment 6; see 432 F.3d at 1253-1255.

The court then turned to the Sentencing Guidelines,

which were then viewed as mandatory. See 432 F.3d at

1255 & n.69. It looked first to Sentencing Guideline

§ 2D1.1(d)(1) (1998), which governed punishment of

drug-distribution offenses. Pet. App. 13a. Sentencing

Guideline § 2D1.1(d)(1) instructed, however, that “if a

victim was killed under circumstances that would constitute murder under 18 U.S.C. 1111,” then Sentencing

Guideline § 2A1.1—applicable to “federal first-degree

murder convictions”—would apply. 432 F.3d at 1253.

And at the time, Guideline § 2A1.1 “mandated a life sentence.” Ibid. (bracket and citation omitted); see Sentencing Guideline § 2A1.1 (1998). Accordingly, the court

sentenced petitioner to life imprisonment. Pet. App. 7a.

2. While petitioner’s direct appeal was pending, this

Court held in Apprendi v. New Jersey, 530 U.S. 466

(2000), that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” Id.

at 490. Invoking Apprendi, petitioner argued to the

court of appeals that “the district court erred when it

found him responsible for cocaine base in excess of 50

grams because * * * that determination should have

been made by a jury.” 432 F.3d at 1255.

The court of appeals rejected petitioner’s argument,

holding that “any error” under Apprendi “would necessarily be harmless” because “[t]he district court properly

sentenced [petitioner] under U.S.S.G. §§ 2D1.1(d)(1)

and 2A1.1, which mandates a life sentence regardless of

the quantity of drugs involved.” 432 F.3d at 1255. And

the court added that “there is nothing in the record that

would indicate that the sentencing judge would have imposed a lesser sentence on [petitioner] had the Guidelines been only advisory” at the time of his sentencing.

Id. at 1255 n.69; see United States v. Booker, 543 U.S.

220 (2005) (applying Apprendi to the Sentencing Guidelines and invalidating the statutory provision that made

them binding). This Court denied a petition for a writ

of certiorari. 551 U.S. 1125.

3. Congress subsequently enacted the Fair Sentencing Act of 2010 (Fair Sentencing Act), Pub. L. No. 111220, 124 Stat. 2372, which altered the statutory penalties for certain crack-cocaine offenses. Before those

amendments, a non-recidivist defendant convicted

of trafficking 50 grams or more of crack cocaine, without an enhancement for a resulting death or serious

bodily injury, faced a minimum term of ten years of

imprisonment and a maximum term of life imprisonment. 21 U.S.C. 841(b)(1)(A)(iii) (2006). A non-recidivist defendant convicted of trafficking five grams or

more of crack cocaine, without an enhancement for a resulting death or serious bodily injury, faced a minimum

term of five years of imprisonment and a maximum

term of 40 years of imprisonment.

21 U.S.C.

841(b)(1)(B)(iii) (2006). For powder-cocaine offenses,

Congress had set the threshold amounts necessary to

trigger the same penalties significantly higher. 21

U.S.C. 841(b)(1)(A)(ii) and (B)(ii) (2006).

The Fair Sentencing Act reduced that disparity in

the treatment of crack and powder cocaine by increasing the amount of crack cocaine necessary to trigger the

penalties described above. Specifically, Section 2(a) of

the Fair Sentencing Act increased the threshold quantities of crack cocaine necessary to trigger the statutory

penalties set forth in 21 U.S.C. 841(b)(1)(A) from 50

grams to 280 grams, and in 21 U.S.C. 841(b)(1)(B) from

five grams to 28 grams. 124 Stat. 2372. Those changes

applied only to offenses for which a defendant was sentenced after the Fair Sentencing Act’s effective date.

See Terry v. United States, 141 S. Ct. 1858, 1861 (2021).

In 2018, Congress enacted Section 404 of the First

Step Act, which allows a defendant sentenced for a

“ ‘covered offense,’ ” defined in Section 404(a) as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the

Fair Sentencing Act * * * , that was committed before

August 3, 2010,” to seek a reduced sentence. 132 Stat.

5222. Under Section 404(b), a district court that “imposed a sentence for a covered offense may, on motion

of the defendant, * * * impose a reduced sentence as if

sections 2 and 3 of the Fair Sentencing Act * * * were

in effect at the time the covered offense was committed.” Ibid.

3. After his conviction and sentence became final,

petitioner filed three separate motions to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C.

2255, all of which were denied. See S.D. Fla. 08-cv21622, Order (Sept. 15. 2011); S.D. Fla. 14-cv-21254, Order (Aug. 27, 2014); S.D. Fla. 14-cv-22895, Order (Sept.

17, 2014).

In 2019, petitioner filed a pro se motion for a sentence reduction under Section 404 of the First Step Act.

Pet. App. 14a. The district court, however, deemed petitioner “ineligible” for such a reduction because regardless of “his conduct involving cocaine base,” Sentencing Guideline § 2A1.1 would have subjected him to

a sentence of life imprisonment based on his role in the

murder. Pet. App. 21a.

After retaining counsel, petitioner moved for reconsideration, and while that motion was pending, the

Eleventh Circuit decided United States v. Jones, 962

F.3d 1290 (2020), cert. granted, judgment vacated sub

nom. Jackson v. United States, 143 S. Ct. 72 (2022), and

opinion reinstated on reconsideration sub nom. United

States v. Jackson, 58 F.4th 1331 (11th Cir. 2023). In

Jones, the Eleventh Circuit explained that “[a] movant’s offense is a covered offense if section two or three

of the Fair Sentencing Act modified its statutory penalties.” Id. at 1298. The court further stated that even

for a defendant with a covered offense, Section 404(b)

“does not permit reducing a movant’s sentence if he received the lowest statutory penalty that also would be

available to him under the Fair Sentencing Act.” Id. at

1303. And the court added that “in determining what a

movant’s statutory penalty would be under the Fair

Sentencing Act, the district court is bound by a previous

finding of drug quantity that could have been used to

determine the movant’s statutory penalty at the time of

sentencing.” Ibid.

Following Jones, the district court denied petitioner’s motion for reconsideration. Pet. App. 12a-18a.

The court recognized that petitioner “was convicted [of]

and sentenced [for] a covered offense.” Id. at 16a. But

the court determined that under Jones, it was “bound

by its prior finding as to drug quantity attributable to

[petitioner].” Ibid. “As such,” the court continued, “if

the Fair Sentencing Act were in effect at the time that

[petitioner] was sentenced, [petitioner] would be subject to the same guidelines.” Id. at 16a-17a. The court

further found that “[e]ven if the life sentence provided

in § 2A1.1 is not mandatory,” a “downward departure

would be inappropriate.” Id. at 17a.

4. The court of appeals affirmed. Pet. App. 6a-11a.

The court agreed with petitioner that he was eligible for

a reduction because he had been convicted of an offense

punishable under the since-modified Section 841(b)(1)(A).

Id. at 8a. But the court rejected petitioner’s contention

that the district court had failed to consider the 18

U.S.C. 3553(a) factors when denying his Section 404 motion, finding that even assuming that the court “was required to look at” those factors, “the record reflects that

[it] took [them] into account.” Id. at 9a-10a; see id. at

8a. The court of appeals also found that the district

court did not “err[] in its ultimate decision to deny relief,” concluding that in light of “the considerable discretion [district] courts receive,” the court did not

“abuse[] its discretion in determining that a belowGuidelines sentence would be inappropriate.” Id. at 10a.

This Court then granted petitioner’s petition for a

writ of certiorari, vacated the judgment, and remanded

the case to the court of appeals in light of Concepcion v.

United States, 142 S. Ct. 2389 (2022). Pet. App. 5a.

Concepcion held that “the First Step Act allows district

courts to consider intervening changes of law or fact in

exercising their discretion to reduce a sentence.” 142

S. Ct. at 2404. It also explained that “[a] district court

cannot, however, recalculate a movant’s benchmark

Guidelines range in any way other than to reflect the

retroactive application of the Fair Sentencing Act.” Id.

at 2402 n.6.

On remand, the court of appeals again affirmed. Pet.

App. 1a-4a. Petitioner argued that Concepcion confirms that district courts in Section 404 proceedings

must “disregard[] any drug-quantity finding not made

by a jury when calculating the movant’s new statutory

penalties” under the Fair Sentencing Act. Id. at 3a. But

the court of appeals deemed that argument “foreclosed”

by its post-Concepcion decision in United States v.

Jackson, supra, which “held that Concepcion did not

abrogate the reasoning in Jones.” Ibid.

The court of appeals then concluded that the district

court “correctly determined that [petitioner’s] statutory sentencing range would still be ten years to life in

prison under the Fair Sentencing Act, based on the

court’s finding at sentencing that his offense involved

1.5 kilograms of crack cocaine, and his Guidelines

sentence would still be life in prison.” Pet. App. 4a.

And the court of appeals upheld the district court’s

“determin[ation] that a reduction in [petitioner’s] sentence below the advisory Guidelines sentence of life in

prison would not be appropriate,” concluding that the

determination “was within the broad discretion afforded to district courts.” Ibid.

ARGUMENT

The government agrees with petitioner that the

Eleventh Circuit erred in concluding that the district

court was bound by a prior drug-quantity finding that,

inconsistent with Apprendi v. New Jersey, 530 U.S. 466

(2000), was made by a judge by a preponderance of the

evidence and used to determine a defendant’s statutory

sentencing range. See U.S. Br. at 40 n*, Concepcion v.

United States, 142 S. Ct. 2389 (2022) (No. 20-1650).

Nonetheless, this Court’s review is unwarranted because the conflict in the circuits is shallow and lopsided,

and the questions presented are of limited and declining

importance. In any event, this case would be an unsuitable vehicle in which to consider those questions. The

petition should be denied.1

1. a. Section 404 permits a district court to reduce a

previously imposed sentence for a “ ‘covered offense,’ ”

which the statute defines as “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, that was committed before August 3, 2010.” First

Step Act § 404(a), 132 Stat. 5222 (citation omitted). Under Section 404(b), the district court that “imposed a

sentence” for such a covered offense “may * * * impose

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

A similar question is presented in the pending petitions for writs

of certiorari to review decisions of the Eleventh Circuit in Jackson

v. United States, No. 22-7728 (filed June 5, 2023); Clowers v. United

States, No. 22-7783 (filed June 12, 2023); Perez v. United States, No.

22-7794 (filed June 12, 2023); Williams v. United States, No. 23-5014

(filed June 20, 2023); and Ingram v. United States, No. 23-341 (filed

July 7, 2023).

Sentencing Act of 2010 were in effect at the time the

covered offense was committed.” § 404(b), 132 Stat.

5222 (citation omitted). Before imposing such a reduced

sentence, a district court must recalculate the applicable penalty range “as if” Sections 2 and 3 of the Fair

Sentencing Act had been in effect at the time of the covered offense. Concepcion, 142 S. Ct. at 2402 & n.6. It

may then “select[] or reject[] an appropriate sentence”

within that range. Id. at 2402 n.6.

Congress drafted Section 404 “against the backdrop

of existing law” in the sentencing context. Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890

(2019) (citation omitted); see, e.g., McQuiggin v. Perkins, 569 U.S. 383, 398 n.3 (2013) (“Congress legislates

against the backdrop of existing law.”). And existing

constitutional sentencing law in both 2018 (when Congress enacted the First Step Act) and 2010 (when it enacted the Fair Sentencing Act) included the rule from

Apprendi that “any fact that increases the penalty for a

crime beyond the prescribed statutory maximum” must

be found by a jury “beyond a reasonable doubt.” 530

U.S. at 490. That bedrock “constitutional protection[]”

is “of surpassing importance” and was well established

by the time both sentencing statutes at issue here were

enacted. Id. at 476.

Accordingly, when authorizing district courts to “impose a reduced sentence,” First Step Act § 404(b), 132

Stat. 5222, Congress envisioned that courts would do so

in a manner consistent with Apprendi. It did not expect

courts to instead follow constitutionally flawed sentencing regimes that had long ago been corrected by this

Court. Thus, in recalculating a defendant’s penalty

range “as if sections 2 and 3 of the Fair Sentencing Act

* * * were in effect,” § 404(b), 132 Stat. 5222, district

courts may not rely on previous judicial drug-quantity

findings that violated Apprendi. Instead, district courts

must recalculate the penalty range consistent with Apprendi by using the drug quantity found by the jury or

admitted by the defendant in a plea agreement.

b. The Eleventh Circuit has erroneously held to the

contrary. In United States v. Jones, 962 F.3d 1290

(2020), cert. granted, judgment vacated sub nom. Jackson v. United States, 143 S. Ct. 72 (2022), and opinion

reinstated on reconsideration sub nom. United States v.

Jackson, 58 F.4th 1331 (11th Cir. 2023), the court held

that even if a defendant has been convicted of a covered

offense, Section 404(b) “does not permit reducing a movant’s sentence if he received the lowest statutory penalty that also would be available to him under the Fair

Sentencing Act.” Id. at 1303.

The Eleventh Circuit stated in Jones that “in determining what a movant’s statutory penalty would be under the Fair Sentencing Act, the district court is bound

by a previous [judicial] finding of drug quantity that

could have been used to determine the movant’s statutory penalty at the time of sentencing.” 962 F.3d at

1303. And in Jackson, the Eleventh Circuit reaffirmed

that view following this Court’s decision in Concepcion.

58 F.4th at 1336.

The Eleventh Circuit’s rule fails to take proper account of Congress having legislated against existing

constitutional sentencing requirements when providing

for First Step Act sentence-reduction proceedings. And

its reliance on Concepcion’s statement that a district

court may not “recalculate a movant’s benchmark

Guidelines range in any way other than to reflect the

retroactive application of the Fair Sentencing Act,”

Jackson, 58 F.4th at 1337 (quoting Concepcion, 142

S. Ct. at 2402 n.6), simply begs the question of how Congress understood “retroactive application of the Fair

Sentencing Act”—itself a post-Apprendi decision—to

operate.

2. Notwithstanding the Eleventh Circuit’s erroneous interpretation of the First Step Act, the questions

presented do not warrant this Court’s review. Petitioner identifies no other court of appeals that has

adopted the Eleventh Circuit’s outlier interpretation.

And petitioner identifies (Pet. 5-6, 22-23) only three

published decisions involving pre-Apprendi defendants

in which courts of appeals have squarely resolved the

issues here differently from the Eleventh Circuit. See

United States v. Robinson, 9 F.4th 954, 959 (8th Cir.

2021) (per curiam); United States v. White, 984 F.3d 76,

87-88 (D.C. Cir. 2020); United States v. Ware, 964 F.3d

482, 488-489 (6th Cir. 2020).2 The practical significance

of that limited and lopsided conflict is minimal. As a

threshold matter, those three courts all recognize that

while a district court may not rely on a “sentencing

court’s drug quantity finding * * * to determine [a

Petitioner cites (Pet. 21) other decisions stating that whether a

defendant was originally sentenced for a covered offense under Section 404(a) “turns on the statute of conviction alone.” United States

v. Boulding, 960 F.3d 774, 781 (6th Cir. 2020). But the Eleventh

Circuit has similarly stated that the Section 404(a) covered-offense

determination turns on “the offense for which the district court imposed a sentence,” without “considering the specific quantity of

crack cocaine involved in the movant’s violation.” Jones, 962 F.3d

at 1300-1301. And here, the Eleventh Circuit correctly found that

petitioner “was eligible for a sentence reduction under the First

Step Act because he was sentenced for a ‘covered offense.’ ” Pet.

App. 4a. The court’s error rested not in its interpretation of “covered offense” under Section 404(a), but in its interpretation of Section 404(b).

defendant’s] applicable statutory sentencing range,” a

district court may take “the sentencing court’s drug

quantity finding[] into account when deciding whether

to exercise its discretion” to reduce a defendant’s sentence. Robinson, 9 F.4th at 959; see White, 984 F.3d at

88 (“The court may consider both judge-found and juryfound drug quantities as part of its exercise of discretion”); Ware, 964 F.3d at 488-489. The fact that all

courts of appeals at least allow consideration of judgefound drug quantities means that in many Section 404

cases, district courts in those circuits will reach similar

outcomes as district courts in the Eleventh Circuit

would.

In addition, the question whether a district court is

bound by a prior judicial drug-quantity finding in considering a Section 404 motion is of declining prospective

importance. Because the First Step Act allows only a

single Section 404 motion, the issue can only possibly

arise for the diminishing set of defendants who remain

incarcerated for crack-cocaine offenses for which a sentence was imposed before August 3, 2010—the effective

date of the Fair Sentencing Act—and for whom Section

404 proceedings have not yet concluded. See First Step

Act § 404(b) and (c), 132 Stat. 5222. And within that set

of defendants, the issue can arise only if the sentencing

judge found a quantity of crack cocaine larger than the

quantity reflected in the jury verdict or guilty plea,

those findings could have been used to increase the defendant’s statutory sentencing range, and they would, if

deemed conclusive, also increase the statutory sentencing range under the modified penalties prescribed in

the Fair Sentencing Act.

Moreover, in every Section 404 proceeding in every

circuit, the statute expressly provides that “[n]othing in

this section shall be construed to require a court to reduce any sentence pursuant to this section.” First Step

Act § 404(c), 132 Stat. 5222. District courts thus have

overarching discretion to deny sentence reductions in

cases where the judge-found drug quantity, or some

other consideration, leads the court to view the original

sentence as appropriate. Petitioner has therefore not

shown that the questions here are likely to arise or affect the outcome in a sufficiently significant number of

cases to warrant this Court’s review.

3. At all events, this case is an unsuitable vehicle in

which to review the questions presented because the

drug-quantity issue did not affect petitioner’s sentence

or the denial of his Section 404 motion. As explained

above, because petitioner drove the getaway car in a

murder, he was sentenced under Sentencing Guideline

§ 2A1.1 (1998), “the guideline applicable [to] first-degree murder convictions”—not the guideline provisions

that look to drug quantity. 432 F.3d at 1253. Thus, as

the Eleventh Circuit recognized, petitioner would have

received “a life sentence regardless of the quantity of

drugs involved.” Id. at 1255.

And in denying petitioner’s Section 404 motion, the

district court determined “that a downward departure”

from the “maximum sentence of life imprisonment” under Sentencing Guideline § 2A1.1 “would be inappropriate.” Pet. App. 17a. The court of appeals then upheld

the district court’s determination as resting on an “adequate[] consider[ation of] the § 3553(a) factors”—particularly because the same district judge “presided over

[petitioner’s] trial and original sentencing” and had

thus “already heard and considered arguments regarding the nature and circumstances of the offense and [petitioner’s] criminal history.” Id. at 10a. The court of

appeals accordingly concluded that the district court’s

denial of petitioner’s Section 404 motion “was within the

broad discretion afforded to district courts to grant or

deny First Step Act motions.” Id. at 4a.

It therefore appears that even if the district court

had not been “bound by its prior finding as to drug

quantity attributable to [petitioner],” it would have still

found a sentence reduction to “be inappropriate.” Pet.

App. 16a-17a. Because the questions presented are not

outcome-determinative here, this case is a poor vehicle

to consider them.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.