USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 1 of 28
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14381 ________________________
D.C. Docket No. 8:05-cr-00188-SDM-AEP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTONIO SOUL GONZALEZ,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(August 19, 2021)
Before JORDAN, NEWSOM, and TJOFLAT, Circuit Judges.
JORDAN, Circuit Judge: USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 2 of 28
Antonio Gonzalez appeals the denial of his motion for a sentence reduction
pursuant to § 404(b) of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194, 5222. His case presents a question of first impression for us—whether a
sentence imposed upon the revocation of supervised release qualifies for a reduction
under § 404(b) of the First Step Act when the underlying crime is a covered offense
under the Act. We now join the Fourth and Sixth Circuits in holding that it does.
We also conclude, however, that the district court in this case did not abuse its
discretion in denying Mr. Gonzalez’s motion for a sentence reduction.
I
Pursuant to a plea agreement, Mr. Gonzalez pled guilty in 2005 to possessing
50 grams or more of cocaine base (i.e., crack cocaine) with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii). The district court sentenced
him to 240 months in prison and 120 months of supervised release.
In 2014, the district court reduced Mr. Gonzalez’s term of imprisonment to
151 months pursuant to the government’s substantial assistance motion. In 2015,
the district court reduced Mr. Gonzalez’s term of imprisonment to 76 months under
18 U.S.C. § 3582(c)(2).
Mr. Gonzalez began his term of supervised release in 2015. When he tested
positive for cocaine and marijuana, provided false information to probation, and
failed to obtain employment, his probation officer filed a petition for revocation of
2 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 3 of 28
supervised release, and the district court issued a warrant for his arrest. The
probation officer later filed a superseding petition adding new alleged criminal
conduct: (1) possession of 500 grams or more of cocaine with intent to distribute;
(2) possession of 28 grams or more of cocaine base; and (3) possession of a firearm
in furtherance of a drug trafficking crime. Mr. Gonzalez admitted to nine violations,
and the district court revoked his supervised release and sentenced him to 57 months
in prison, to be served consecutively to a separate sentence imposed for the new
criminal conduct.
In April of 2019, Mr. Gonzalez, proceeding pro se, sought to modify his 57-
month sentence under § 404(b) of the First Step Act. He argued that his original
narcotics conviction was now classified as a Class B felony instead of a Class A
felony, and as a result his maximum prison term for a violation of supervised release
was three years rather than five. The government opposed a reduction under the
First Step Act. It argued that Mr. Gonzalez’s current sentence was for revocation of
supervised release under 18 U.S.C. § 3583(e)(3), and not for a covered offense under
the First Step Act. It also alternatively asserted that, even if Mr. Gonzalez were
eligible, the district court should not reduce his sentence because his new criminal
conduct and his prison disciplinary record (which included 18 violations, some
involving drugs) demonstrated “a continued disrespect for authority” and “raise[d]
legitimate concerns about recidivism.”
3 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 4 of 28
The district court denied Mr. Gonzalez’s motion on alternative grounds. First,
the district court concluded that Mr. Gonzalez was ineligible under the First Step
Act because his current sentence was for a violation of supervised release, and not
for a covered offense. Second, even if Mr. Gonzalez were eligible, the district court
expressly adopted the government’s alternative arguments. It explained that it would
not reduce his sentence due to his “unwillingness or inability to abide by the law”
and his “continued lawless behavior,” including the recent drug and firearm
offenses. Mr. Gonzalez’s appeal followed.
II
Mr. Gonzalez argues that his current sentence, imposed upon revocation of
supervised release, makes him eligible for a reduction under § 404(b) of the First
Step Act. He asserts that the revocation of supervised release relates back to the
initial offense for which he was imprisoned, and thus that initial offense should be
the focus of the eligibility determination under the First Step Act. Because the Fair
Sentencing Act of 2010, Pub. L. No. 111-20, §§ 2-3, 124 Stat. 2372, reclassified his
initial narcotics offense from a Class A to a Class B felony, he contends that his
supervised release revocation allows him to obtain a reduction under the First Step
Act.
We exercise plenary review in determining whether a district court has
authority to reduce a sentence under the First Step Act. See United States v. Russell,
4 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 5 of 28
994 F.3d 1230, 1236 (11th Cir. 2021); United States v. Jones, 962 F.3d 1290, 1296
(11th Cir. 2020). On appeal, the government has changed its position on the matter
of eligibility. It now concedes that Mr. Gonzalez’s revocation sentence is eligible
for a reduction under the First Step Act because the underlying offense was a covered
offense under § 404(b). We are “not bound to accept” a party’s concession on a
“question of law,” but based upon our independent analysis we think the
government’s U-turn on eligibility is “well advised.” Orloff v. Willoughby, 345 U.S.
83, 87 (1953).
For a defendant to be eligible for a sentence reduction under the First Step
Act, “the district court must have imposed a sentence . . . for a covered offense.”
Jones, 962 F.3d at 1298 (internal quotation marks omitted). The First Step Act
defines a covered offense 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.” First Step Act, § 404(a). See generally
Terry v. United States, 141 S. Ct. 1858, 1862–63 (2021) (explaining eligibility under
the First Step Act). There is no dispute that Mr. Gonzalez’s underlying narcotics
crime, which involved the possession of crack cocaine, is a covered offense under
the Act. The remaining question, then, is whether a sentence imposed upon the
revocation of supervised release qualifies for a sentence reduction under § 404(b) of
the Act when the underlying crime is a covered offense.
5 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 6 of 28
The Supreme Court has explained that “post[-]revocation penalties relate to
the original offense.” Johnson v. United States, 529 U.S. 694, 701 (2000). See also
United States v. Haymond, 139 S. Ct. 2369, 2379–80 (2019) (plurality opinion) (“an
accused’s final sentence includes any supervised release sentence he may receive”).
We have similarly stated that as a “general principle . . . post-revocation penalties
are contemplated in relation to the original offense.” United States v. Williams, 790
F.3d 1240, 1251 (11th Cir. 2015). 1
Because a “period of supervised release is simply a part of the sentence for
the underlying conviction,” id., we join the Fourth and Sixth Circuits in holding that
a sentence imposed upon revocation of supervised release is eligible for a sentence
reduction under § 404(b) of the First Step Act when the underlying crime is a covered
offense within the meaning of the Act. See United States v. Woods, 949 F.3d 934,
937 (6th Cir. 2020) (“Given that Woods’ current 37-month sentence relates to his
original offense under 21 U.S.C. § 841(a)(1)—a First Step Act ‘covered offense’—
Woods is eligible for resentencing[.]”); United States v. Venable, 943 F.3d 187, 194
(4th Cir. 2019) (“[G]iven that Venable’s revocation sentence is part of the penalty
for his initial offense, he is still serving his sentence for a ‘covered offense’ for
1 Our sister circuits are in agreement. See, e.g., United States v. Salazar, 987 F.3d 1248, 1256–57 (10th Cir. 2021); United States v. Reyes-Santiago, 804 F.3d 453, 477 (1st Cir. 2015); United States v. Turlington, 696 F.3d 425, 427 (3d Cir. 2012); United States v. Johnson, 640 F.3d 195, 203 (6th Cir. 2010). 6 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 7 of 28
purposes of the First Step Act. Thus, the district court had the authority to consider
his motion for a sentence reduction just as if he were serving the original custodial
sentence.”). So Mr. Gonzalez is eligible for a sentence reduction under the First Step
III
Eligibility, of course, is not the end of the matter. As its statutory text
indicates, and as we have explained, § 404(b) of the First Step Act authorizes district
courts to reduce the sentences of defendants with covered offenses but does not
require them to do so. See United States v. Taylor, 982 F.3d 1295, 1298 (11th Cir.
2020); Jones, 962 F.3d at 1304. That means we review for abuse of discretion a
district court’s decision as to whether to reduce a sentence for an eligible defendant.
See Jones, 962 F.3d at 1296. And that standard generally provides a district court
with a “range of choice” as long as the choice does not constitute a “clear error of
judgment.” United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en
banc). See also Koon v. United States, 518 U.S. 81, 100 (1996) (“A district court by
definition abuses its discretion when it makes a mistake of law.”).
A
A district court must adequately explain its decision under the First Step Act,
and that usually requires providing a reasoned basis for the exercise of discretion.
See United States v. Stevens, 997 F.3d 1307, 1317 (11th Cir. 2021). In exercising
7 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 8 of 28
its discretion, a district court may consider the sentencing factors set forth in 18
U.S.C. §3553(a), but it is not required to do so. See id. at 1316; United States v.
Potts, 997 F.3d 1142, 1145–46 (11th Cir. 2021). And as long as it is not ambiguous,
a district court’s alternative exercise of discretion in denying a First Step Act motion
can suffice for affirmance. See Potts, 997 F.3d at 1147. As explained below, we
conclude that the district court here did not abuse its discretion in denying Mr.
Gonzalez’s First Step Act motion.
The district court stated that Mr. Gonzalez was ineligible for a reduction under
the First Step Act, but alternatively assumed his eligibility and denied a sentence
reduction in the exercise of its discretion. The district court based its denial on Mr.
Gonzalez’s “unwillingness or inability to abide by the law” and his “continued
lawless behavior”—as demonstrated by his prison disciplinary record and most
recent drug and firearm offenses—and a concern about recidivism.
Although the district court did not refer to the § 3553(a) factors by name, its
reasons touched on two of them—the need to “afford adequate deterrence” and the
need to “protect the public from further crimes of the defendant.” See §
3553(a)(2)(B)–(C). Where, as here, a defendant has engaged in criminal conduct
while on supervised release, recidivism and deterrence are appropriate
considerations in deciding whether to reduce a sentence under the First Step Act.
The district court’s reasons were clear, supported by the record, and did not
8 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 9 of 28
constitute an abuse of discretion. See Woods, 949 F.3d at 938 (affirming denial of a
First Step Act motion for reduction of a revocation sentence because the defendant’s
crimes while on supervised release, pattern of drug involvement, and possession of
weapons indicated that the original sentence was not sufficient to promote respect
for the law, protect the public, or afford adequate deterrence). Cf. Potts, 997 F.3d at
1146–47 (affirming district court’s alternative denial of First Step Act motion, after
consideration of the § 3553(a) factors, given the defendant’s extensive criminal
history and the seriousness of the offenses).
B
In a supplemental filing, Mr. Gonzalez urges us to follow the Seventh
Circuit’s decision in United States v. Corner, 967 F.3d 662, 666 (7th Cir. 2020), and
hold that district courts must always calculate and consider a defendant’s new range
under the Sentencing Guidelines before exercising their discretion under § 404(b) of
the First Step Act. The Seventh Circuit relied on language in § 404(c) of the Act
stating that a defendant cannot file a second motion for reduction if the first motion
was “denied after a complete review of the motion on the merits.” Id. at 665. In its
view, the failure to properly calculate the new range results in an uninformed
exercise of discretion and “amounts to a reversible procedural error.” Id.
In some instances, it may be that the better practice is for a district court to
calculate the new sentencing range before deciding whether to grant or deny a First
9 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 10 of 28
Step Act motion. In other instances, perhaps not. Cf. Pearson v. Callahan, 555 U.S.
223, 236–37 (2009) (discouraging “[s]ubstantial expenditure[s] of scarce judicial
resources on difficult questions that have no effect on the outcome of the case”). In
any event, we decline to follow Corner by fashioning a hard-and-fast rule of
automatic reversal.
First, the Seventh Circuit’s analysis of the text of the First Step Act is incorrect
and takes the “complete review” language—which it called a “requirement”—out of
context. The “complete review” mentioned in § 404(c) of the Act only relates to a
court’s ability to consider successive First Step Act motions: “No court shall
entertain a motion made under this section to reduce a sentence if . . . a previous
motion made under this section to reduce the sentence was, after the date of
enactment of this Act, denied after a complete review of the motion on the merits.”
As we have suggested, this “complete review” language is relevant only with respect
to successive motions. See United States v. Denson, 963 F.3d 1080, 1087 (11th Cir.
2020). Indeed, the language appears nowhere else in the Act. 2
2 To the extent the Fourth and Sixth Circuits have issued decisions based on the same reading of § 404(c), we respectfully disagree with them as well. See United States v. Collington, 995 F.3d 347, 359 (4th Cir. 2021) (asserting that “[§] 404(c) of the First Step Act requires district courts to undertake ‘a complete review of the motion on the merits’”) (quoting First Step Act, § 404(c)); United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020) (“Though coming from the provision that governs repeat resentencing motions, this language shows the dimensions of the resentencing inquiry Congress intended district courts to conduct: complete review of the resentencing motion on the merits.”).
10 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 11 of 28
Second, Rule 52(a) of the Federal Rules of Criminal Procedure instructs that
“[a]ny error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded,” and the Supreme Court has held that “a federal court may not
invoke supervisory power to circumvent the harmless-error inquiry prescribed by . .
. Rule 52(a).” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1987). We
have held, therefore, that a “Sentencing Guidelines miscalculation is harmless if the
district court would have imposed the same sentence without the error.” United
States v. Barner, 572 F.3d 1239, 1248 (11th Cir. 2009) (also explaining that “where
the district [court] chooses to sentence within the range prescribed by the Sentencing
Guidelines, an error in their calculation cannot be harmless”). An automatic reversal
rule would be in tension, if not in conflict, with Rule 52(a) and our precedent. We
are confident that we can decide, on a case-by-case basis, whether a district court’s
failure to properly calculate the new range constitutes reversible procedural error
under the First Step Act.
IV
We affirm the district court’s denial of Mr. Gonzalez’s motion under § 404(b)
of the First Step Act.
AFFIRMED.
11 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 12 of 28
TJOFLAT, Circuit Judge, concurring:
To determine whether a district court has abused its discretion pursuant to a
given statute, we must first identify “the bounds of that discretion and the
principles that guide its exercise.” United States v. Taylor, 487 U.S. 326, 336, 108
S. Ct. 2413, 2419 (1988). In other words, we must discern the governing standard.
And if we can’t do that, we must be willing to say the district court’s exercise of
discretion is unreviewable. We’ve been unable to articulate any standard that
limits a district court’s discretion to reduce sentences under § 404(b) of the First
Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222, and yet we’ve held
we can review these decisions for abuse of discretion. I write separately to explain
why our precedents are incorrect. But because I’m bound by these incorrect
precedents, I concur in the judgment.
A district court ruling on a defendant’s motion for a reduced sentence under
§ 404(b) must answer three basic questions. First, was the defendant sentenced for
a “covered offense”? Second, do sections 2 and 3 of the Fair Sentencing Act
permit a sentence lower than defendant’s original sentence? And third, should the
defendant be given a reduced sentence?1 The first two questions deal with whether
1 A district court may not “entertain a motion” by a defendant who has already had his sentence imposed or reduced “in accordance with” sections 2 or 3 of the Fair Sentencing Act. § 404(c). Nor may it “entertain a motion” if a previous § 404(b) motion on behalf of the same defendant was denied “after a complete review of the motion on the merits.” Id. Therefore the district court must also resolve these questions as part of the eligibility inquiry. 12 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 13 of 28
the defendant can be given a reduced sentence—in other words, whether the
defendant is “eligible.” They are questions of law subject to de novo review.
United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). The third question
arises only if the first two are answered affirmatively, and it invites an exercise of
discretion by the district court.
But the discretionary call under § 404(b) is unusual. Typically, we’re able to
ask whether a district court making such a call “abused” its discretion in reference
to a particular standard that limits both the range of permissible conclusions and
the grounds on which those conclusions may be based. See Taylor, 487 U.S. at
335, 108 S. Ct. at 2419 (“[D]iscretionary choices are not left to a court’s
inclination, but to its judgment; and its judgment is to be guided by sound legal
principles.” (quotation marks and citation omitted)). “Discretion,” then, is usually
thought of as “power of free decision or choice within certain legal bounds.”
Webster’s Third New International Dictionary 647 (1993) (emphasis added). An
“abuse” occurs when those bounds are exceeded. See Taylor, 487 U.S. at 336, 108
S. Ct. at 2419. Or, as we often articulate it, a district court abuses its discretion
when it applies an incorrect legal standard or makes a clear error of judgment.
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (citation omitted).
But neither § 404 nor 18 U.S.C. § 3582(c)(1)(B)—the provision allowing for
reductions where “expressly permitted by statute”—provide any such limits.
13 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 14 of 28
Section 404 provides only that “[a] court that imposed a sentence for a covered
offense may . . . impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 were in effect at the time the covered offense was
committed,” but that “[n]othing in this section shall be construed to require a court
to reduce any sentence pursuant to this section.” § 404(b)–(c). And §
3582(c)(1)(B) simply permits a court to modify a term of imprisonment “to the
extent [] expressly permitted by statute or by Rule 35 of the Federal Rules of
Criminal Procedure.”
In this way, First Step Act reductions are different from other sentence
modifications under § 3582(c). A district court modifying a sentence under §
3582(c)(1)(A) is required to apply the § 3553(a) factors “to the extent that they are
applicable” and to find that “extraordinary and compelling reasons warrant such a
reduction.” It must also determine that a reduction would be “consistent with
applicable policy statements issued by the Sentencing Commission.” §
3582(c)(1)(A). Section § 3582(c)(2) permits reduction “in the case of a defendant
who has been sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission pursuant to 28
U.S.C. 994(o).” But again, the court must first consider the § 3553(a) factors and
determine that reduction would be consistent with the Commission’s policy
statements. Id. In short, a district court’s discretion to reduce under these
14 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 15 of 28
subsections is cabined by specific legal principles and factual determinations
which provide footholds for the reviewing court to say whether an abuse has
occurred.
These textual differences ought to give us pause. It’s tempting to smooth
over this irregular terrain by borrowing the common denominator of sentencing-
modification decisions—consideration of the § 3553(a) factors—and importing it
to the First Step Act scheme. See, e.g., United States v. Easter, 975 F.3d 318, 323–
24 (3d Cir. 2020) (holding that district courts exercising discretion under § 404(b)
“must consider all of the § 3553(a) factors to the extent they are applicable,” in part
because “if the district court were not required to consider these factors, then it is
unclear how the district court’s exercise of discretion would be reviewable on
appeal” (emphasis added)); United States v. White, 984 F.3d 76, 92–93 (D.C. Cir.
2020) (“The parties agree that the District Court should give proper consideration
to the sentencing factors outlined in 18 U.S.C. § 3553(a) in assessing Appellants’
motions for reduced sentences. We agree that the court must do this on remand.”
(emphasis added)). But we must presume that Congress acts meaningfully when it
says something in one section of a statute and omits it in another—even when we
can’t discern any good reason why it might have done so. Kucana v. Holder, 558
U.S. 233, 249, 130 S. Ct. 827 (2010) (“Where Congress includes particular
language in one section of a statute but omits it in another section of the same Act,
15 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 16 of 28
it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.” (quotation marks and citation omitted)
(alterations adopted)).
I think we made the right call, then, in United States v. Stevens, 997 F.3d
1307, 1316 (11th Cir. 2021), when we held that district courts considering whether
to reduce under § 404(b) aren’t required to consider the § 3553(a) factors. But I
differ with the Stevens panel in its handling of the problem which followed from
that conclusion. If district courts need not consider § 3553(a), then what if
anything constrains their discretion in reducing sentences under § 404(b)? The
principled answer, in my view, is that nothing constrains their discretion. If
nothing constrains their discretion, there can be no abuse. And if no abuse, then no
review—even if we think the district court’s decision was wholly arbitrary. 2
2 Some courts going the other way have reasoned that Congress surely couldn’t have intended for exercises of discretion under § 404(b) to be unreviewable. See, e.g., United States v. Rose, 379 F. Supp. 3d 223, 235 (S.D.N.Y. 2019), aff’d, 841 F. App’x 328 (2d Cir. 2021) (“It is unlikely that Congress intended to give district courts unbounded or unreviewable discretion to grant or deny relief, and if § 3553(a) did not apply, then courts would have to develop new and untried standards to limit judicial discretion.”). But speculation about Congress’s intent has no place in the business of statutory interpretation. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397, 71 S. Ct. 745, 751 (1951) (Jackson, J., concurring) (“We do not inquire what the legislature meant; we ask only what the statute means.” (quoting Oliver Wendell Holmes, The Theory of Legal Interpretation, in Collected Legal Papers 203, 207 (1920))); Charles Fried, Sonnet LXV and the “Black Ink” of the Framers’ Intention, 100 Har. L. Rev. 751, 759 (1987) (“[W]ords and text are chosen to embody intentions and thus replace inquiries into subjective mental states. In short, the text is the intention of the authors or of the framers.”). 16 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 17 of 28
Instead of holding that § 404(b) decisions are unreviewable—a holding
which was, to be fair, foreclosed by our earlier decisions in Jones, 962 F.3d at
1296, and United States v. Russell, 994 F.3d 1230, 1236 (11th Cir. 2021)—we
went on to borrow certain constraints from other contexts without asking whether
it made sense to do so. In particular, we said that a district court exercising its
discretion under § 404(b) must “set forth enough to satisfy the appellate court that
it has considered the parties’ arguments and has a reasoned basis for exercising its
own legal decisionmaking authority.” Stevens, 997 F.3d at 1317 (quoting Rita v.
United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007)) (alterations
adopted)). This explanation requirement was an import from Gall v. United States,
552 U.S. 38, 50, 128 S. Ct. 586, 597 (2007), and United States v. Johnson, 877
F.3d 993, 997 (11th Cir. 2017). But the explanation requirement applied in Gall
was plain on the face of the statute at issue there—§ 3553, which requires a district
court when imposing a sentence to “state in open court the reasons for its
imposition of the particular sentence.” § 3553(c); see also Rita, 551 U.S. at 356,
127 S. Ct. at 2468. And Johnson held that a district court ruling on a § 3583(e)(1)
motion for early termination of supervised release “must demonstrate that the
pertinent factors were taken into account.” 877 F.3d at 995. Those “pertinent
factors” came from § 3553(a), the consideration of which is expressly required by
§ 3583(e). Id. at 997.
17 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 18 of 28
The First Step Act scheme, of course, differs from the provisions at issue in
Gall and Johnson in that it neither features an express explanation requirement nor
mandates consideration of § 3553(a). So there’s a double-layer of irony to
Stevens’ conclusion that district courts must explain their decisions under § 404(b).
First, such a requirement is as textually unmoored as the § 3553(a) requirement the
panel rejected. And second, that imported requirement, in its natural habitat,
served only as a means for reviewing courts to tell whether the district court
considered the there-mandatory, here non-mandatory § 3553(a) factors.
Explanation requirements are warranted, the Supreme Court has said,
“[w]here . . . Congress has declared that a decision will be governed by
consideration of particular factors.” Taylor, 487 U.S. at 336, 108 S. Ct. at 2419.
Only if the district court “clearly articulate[s]” the effect of those factors on its
decision “can an appellate court ascertain whether [the] district court has ignored
or slighted a factor that Congress has deemed pertinent to the choice of remedy,
thereby failing to act within the limits prescribed by Congress.” Id. at 336–37, 108
S. Ct. at 2419.
Given that the purpose of an explanation requirement is to allow a reviewing
court to determine whether the district court considered the factors it was required
to consider, it’s puzzling in the extreme that the Stevens panel didn’t identify what
factors district courts must consider when exercising their discretion under §
18 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 19 of 28
404(b). Yet the point of requiring an explanation clearly wasn’t lost on the panel.
Such a requirement, we said, is meant to “provide this Court with enough
explanation in order to determine whether [] an abuse has occurred”—to
determine, in other words, “whether [the] district court applied an incorrect legal
standard or made a clear error in judgment.” Stevens, 997 F.3d at 1317–18.
By requiring an explanation without identifying the factors a district court
must consider in exercising its discretion under § 404(b), Stevens produced a
strange rule: District courts must provide an explanation merely for explanation’s
sake. The requirement is essentially content-neutral. It matters not what the
explanation reveals about the district court’s reasoning, only that the district court
gave some explanation.
This is evident from the fact that we’ve never actually found that a district
court abused its discretion under § 404(b). Whenever we’ve applied the
explanation requirement to vacate a § 404(b) decision, it’s been because the district
court gave essentially no explanation, and not because its explanation revealed an
abuse of discretion. Consider Russell, where the District Court denied the
defendant’s § 404(b) motion with the following statement:
Even assuming Defendant is eligible for resentencing under the First Step Act of 2018, after considering the statutory factors set forth in 18 U.S.C. § 3553(a), the Court would exercise its discretion to deny Defendant a reduction in this sentence.
19 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 20 of 28
Russell, 994 F.3d at 1240. We vacated and remanded not because this explanation
revealed that the District Court applied the incorrect legal standard, but because
“we [couldn’t] discern from the record the basis for the district court’s decision.”
Id. Stevens was the same. The terse order there—“even if the First Step Act
applied, the Court would still impose a sentence of five (5) years of supervised
release”—was insufficient because it “provide[d] no indication of what, if
anything, the district court considered in its determination.” Stevens, 997 F.3d at
1312, 1317 (alterations adopted).
Consider also the cases where we’ve affirmed § 404(b) decisions. In United
States v. Potts, 997 F.3d 1142, 1146 (11th Cir. 2021), we held that the District
Court’s explanation for why it didn’t reduce the defendant’s sentence under §
404(b) was sufficiently detailed to allow for meaningful review. In a typical case,
we would then articulate the considerations the explanation must reflect. Instead,
we repeated the cryptic requirement that the explanation “must adequately explain
[the] [] decision,” and must “set forth enough to demonstrate [that the District
Court] . . . has a reasoned basis for exercising its own legal decisionmaking
authority.” Id. at 1145 (citation and quotation marks omitted) (alterations adopted
and added). Then after summarizing the contents of the government’s response in
opposition to the motion and the probation officer’s memorandum—which the
20 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 21 of 28
District Court stated it considered—we concluded simply that the “district court’s
decision . . . was not an abuse of discretion.” Id. at 1146.
As a brief aside, it’s unclear why the explanation in Potts was sufficient to
allow for meaningful review while the explanation in Russell wasn’t. Both
explanations gave a perfunctory nod to the § 3553(a) factors before concluding that
a sentence reduction was unwarranted. The only difference, as we noted in Potts,
was that the District Court’s order in Potts “expressly referenced the probation
officer’s memorandum” and the government’s response. 3 Id. at 1146. But it’s not
at all apparent how meaningful review could hinge on a mere statement from the
district court that it “consider[ed] [] the government and probation’s responses.”
Id. at 1144 (quotation marks omitted).
The majority opinion in the instant case also illustrates that what we’re
really looking for is an explanation rather than an abuse of discretion in the typical
sense. The opinion recites the refrain that a district court must “adequately explain
its decision” and “provid[e] a reasoned basis for the exercise of discretion.” Maj.
Op. at 7. Then, in concluding there was no abuse of discretion, the majority states
simply that the District Court’s explanation was “clear” and “supported by the
3 For the sake of completeness, I note that Potts distinguished Russell on three grounds. Potts, 997 F.3d at 1146–47. But only one—the reference to the probation memorandum and the government’s response—is relevant to the issue of whether the decision not to reduce was an abuse of discretion. 21 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 22 of 28
record.” Id. at 8. This explanation-for-its-own-sake requirement makes little
sense.
But perhaps Stevens’ explanation requirement is somewhat content-sensitive
after all. Maybe it’s meant to function as a sort of general reasonability check.
The idea might be that we can gradually identify certain things that district courts
may not consider even if we can’t affirmatively identify anything they must
consider. This approach has some appeal. It forces district courts to be transparent
and allows us to intervene if they make patently unreasonable decisions. 4 And best
of all, it saves us from the necessarily unprincipled task of extracting an ex-ante
governing standard from statutory silence.
There’s only one problem, of course: We lack the authority to develop
federal common law respecting the reasonability of sentence-modification
decisions. “[A]ppellate review of sentencing discretion . . . [is] limited to instances
prescribed by statute.” United States v. Booker, 543 U.S. 220, 307, 125 S. Ct. 738,
791 (2005) (Scalia, J., dissenting). And “except to the extent specifically directed
by statute, it is not the role of an appellate court to substitute its judgment for that
of the sentencing court as to the appropriateness of a particular sentence.”
4 I note that if a district court were to exercise its discretion under § 404(b) in an unconstitutional manner—by declining to reduce a sentence because of a defendant’s race, for instance—that decision would be reviewable even though the First Step Act scheme doesn’t itself supply a standard. See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1294 n.7 (11th Cir. 2008) (noting that “an appellate court may have jurisdiction over constitutional claims” arising from an otherwise unreviewable exercise of discretion by the Board of Immigration Appeals). 22 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 23 of 28
Williams v. United States, 503 U.S. 193, 205, 112 S. Ct. 1112, 1121 (1992)
(quotation marks and citation omitted); see also Bourdon v. U.S. Dep’t of
Homeland Sec., 940 F.3d 537, 546 (11th Cir. 2019) (“[W]e ‘possess only that
power authorized by Constitution and statute, which is not to be expanded by
judicial decree.’” (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377, 114 S. Ct. 1673, 1675 (1994))).
It may be supposed that the authority to review § 404(b) decisions for
general reasonableness flows from the Supreme Court’s decision in Booker, 543
U.S. at 245, 125 S. Ct. at 756–57, which struck down the provision of the
Sentencing Reform Act that made the Sentencing Guidelines mandatory, 5 along
with the provision providing for a de novo standard of review, 6 and declared that
the new judge-made standard of review was for “unreasonableness.” But as the
Supreme Court recognized in Dillon v. United States, 560 U.S. 817, 130 S. Ct.
2683 (2010), Booker doesn’t apply to proceedings under § 3582(c). “Sentence-
modification proceedings,” the Court said, are “readily distinguishable from other
sentencing proceedings” and therefore “do not implicate the interests identified in
Booker.” Dillon, 560 U.S. at 828–30, 130 S. Ct. at 2692–93; see also United
States v. Dunn, 728 F.3d 1151, 1162 (9th. Cir. 2013) (O’Scannlain, J., concurring)
5 18 U.S.C. § 3553(b)(1). 6 § 3742(e).
23 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 24 of 28
(asserting that Ninth Circuit precedent holding that § 3582(c)(2) decisions are
reviewable for reasonableness is “in deep tension” with Dillon); United States v.
Bowers, 615 F.3d 715, 717 (6th Cir. 2010) (no jurisdiction to review for
reasonableness a district court’s decision whether to reduce a sentence under §
3582(c)(2) in light of Dillon).
And even if Booker did apply to § 3582(c) decisions, Booker’s
reasonableness review doesn’t entail a free-wheeling authority to decide a district
court has acted unreasonably without reference to any particular statutory factors.
Rather, as the Court made clear in Booker and subsequently in Gall, such review is
conducted in the light of the § 3553(a) factors. Booker, 543 U.S. at 261, 125 S. Ct.
at 766 (“Section 3553(a) remains in effect, and sets forth numerous factors that
guide sentencing. Those factors in turn will guide appellate courts, as they have in
the past, in determining whether a sentence is unreasonable.”); see Gall, 552 U.S.
at 56 128 S. Ct. at 600 (“Since the District Court committed no procedural error,
the only question for the Court of Appeals was whether the sentence was
reasonable—i.e., whether the District Judge abused his discretion in determining
that the § 3553(a) factors supported a sentence of probation and justified a
substantial deviation from the Guidelines range.”). The scope of Booker’s
reasonableness review, then, is significantly less than the unanchored review
permitted under Stevens. See Koon v. United States, 518 U.S. 81, 97, 116 S. Ct.
24 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 25 of 28
2035, 2046 (1996) (“Congress did not intend, by establishing limited appellate
review [under the Sentencing Reform Act], to vest in appellate courts wide-ranging
authority over district court sentencing decisions.”).
It’s a well-established principle of administrative law that “review is not to
be had if the statute is drawn so that a court would have no meaningful standard
against which to judge the agency’s exercise of discretion.” Heckler v.
Chaney, 470 U.S. 821, 830, 105 S. Ct. 1649, 1655 (1985). But this isn’t just a
separation-of-powers doctrine, and neither is it limited to review under the
Administrative Procedure Act. Rather, it’s based on the practical truth that
“meaningful judicial review is impossible” where a statute grants discretion while
“provid[ing] absolutely no guidance as to how that discretion is to be exercised.”
Make The Rd. N.Y. v. Wolf, 962 F.3d 612, 632 (D.C. Cir. 2020) (citation and
quotation marks omitted); Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985)
(per curiam).
Consider Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1292 (11th Cir. 2008),
where we addressed whether we had jurisdiction to review the Board of
Immigration Appeals’ (“BIA”) denial of petitioners’ motion to reopen their case.
The regulation at issue provided that “[t]he Board may at any time reopen or
reconsider on its own motion any case in which it has rendered a decision” and that
“[t]he decision to grant or deny a motion to reopen or reconsider is within the
25 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 26 of 28
discretion of the Board . . . even if the party moving has made out a prima facie
case for relief.” Lenis, 525 F.3d at 1293 n.6 (citing 8 C.F.R. § 1003.2(a)). Because
the regulation contained “[n]o language . . . requir[ing] the BIA to reopen a
deportation proceeding under any set of particular circumstances,” but rather gave
the BIA discretion to do so “as it sees fit,” we concluded we lacked jurisdiction.
Id. at 1294.
How doesn’t the First Step Act scheme give a district court the discretion to
reduce a sentence simply “as it sees fit?” Our precedents readily declare that these
decisions are reviewable for abuse of discretion, but they all fail to answer that
essential question.
I note one final thing. Although it’s true as a general matter that in
interpreting statutes we apply a “strong presumption” in favor of judicial review,
this principle does not counsel in favor of reviewing § 404(b) decisions for abuse
of discretion. Bourdon, 940 F.3d at 545 (citing Cuozzo Speed Tech., LLC v. Lee,
— U.S. —, 136 S. Ct. 2131, 2140 (2016)). For one thing, this presumption
typically applies to judicial review of executive action. See Kucana, 558 U.S. at
251, 130 S. Ct. at 839 (recognizing “a familiar principle of statutory construction:
the presumption favoring judicial review of administrative action” (emphasis
added)); Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S. Ct. 2227,
2236 (1995) (“Because the statute is reasonably susceptible to divergent
26 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 27 of 28
interpretation, we adopt the reading that accords with traditional understandings
and basic principles: that executive determinations generally are subject to judicial
review . . . .” (emphasis added)); Abbott Labs v. Gardner, 387 U.S. 136, 140, 87 S.
Ct. 1507, 1511 (1967) (“[A] survey of our cases shows that judicial review of a
final agency action by an aggrieved person will not be cut off unless there is
persuasive reason to believe that such was the purpose of Congress.” (emphasis
added)). It’s not at all clear the presumption should apply to sentencing decisions,
which historically were unreviewable so long as the sentence was within statutory
limits. Koon, 518 U.S. at 96, 116 S. Ct. at 2045.
And in any case, my contention isn’t that review of § 404(b) decisions is
wholly unavailable. Review for legal error is surely available, as when a district
court incorrectly decides the § 404 eligibility question. See Jones, 962 F.3d at
1296. Where, however, Congress has provided no principles to guide the district
court’s discretion whether to modify a sentence, we should fall back on the
traditional rule that “a sentence imposed by a federal district judge, if within
statutory limits, is generally not subject to review.” United States v. Tucker, 404
U.S. 443, 447, 92 S. Ct. 589, 591 (1972).
If I were writing on a blank slate, I would hold we lack jurisdiction to review
a district court’s exercise of discretion to reduce—or not reduce—a sentence under
27 USCA11 Case: 19-14381 Date Filed: 08/19/2021 Page: 28 of 28
§ 404(b). But since I’m constrained by these incorrect precedents, I concur in the
decision to affirm the District Court’s exercise of its unbridled discretion.