Appellate Case: 19-6122 Document: 010110664471 Date Filed: 03/30/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 30, 2022
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-6122
TONY LAMAR BURRIS,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:03-CR-00213-R-1) _________________________________
Susan M. Otto, Federal Public Defender (Laura K. Deskin, Research & Writing Specialist, Oklahoma City, Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, for Defendant – Appellant.
Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, with him on the briefs), Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, Oklahoma, for Plaintiff – Appellee. _________________________________
Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges. _________________________________
MORITZ, Circuit Judge. _________________________________
In 2004, Tony Burris pleaded guilty to possession with intent to distribute
crack cocaine, and the district court sentenced him to 262 months in prison, the low
end of his sentencing range under the United States Sentencing Guidelines (the Appellate Case: 19-6122 Document: 010110664471 Date Filed: 03/30/2022 Page: 2
Guidelines). After Congress passed the Fair Sentencing Act of 2010, which addressed
sentencing disparities between crack and powder cocaine, and made those changes
retroactive in the First Step Act of 2018, Burris moved for a reduced sentence. See
Pub. L. No. 111-220, 124 Stat. 2372 (2010); Pub. L. No. 115-391, 132 Stat. 5194
(2018). The government opposed the motion, arguing that Burris’s Guidelines range
remained the same because the calculation should be based on the larger quantity of
crack cocaine attributed to Burris in the Presentence Investigation Report (PSR)
rather than the smaller amount charged in the indictment. Recognizing that the
parties raised an issue that had not yet been addressed by this court, the district court
declined to resolve it, instead exercising its discretion to deny relief regardless of the
correct Guidelines calculation. Because we hold that the district court was obligated
to calculate Burris’s revised Guidelines range before exercising its discretion to deny
relief and that the error was not harmless, we reverse and remand for further
proceedings consistent with this opinion.
Background
A federal grand jury indicted Burris for his role in a drug-distribution
conspiracy. Burris pleaded guilty to possession with intent to distribute 50 grams or
more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). The PSR stated that
Burris was the supply source for multiple drug transactions involving his
coconspirators and determined that Burris was accountable for 567 grams of crack
cocaine. Because Burris had been convicted of three prior felonies involving drug
distribution, the PSR determined that Burris was a career offender under
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U.S.S.G. § 4B1.1, which provides an alternate method for calculating the offense
level based on the statutory maximum sentence for the offense. Burris’s conviction
carried a statutory mandatory minimum sentence of ten years and a maximum of life;
therefore, the PSR calculated that Burris’s base offense level was 37. After
subtracting three levels for acceptance of responsibility, Burris’s total offense level
was 34. Given this offense level and Burris’s criminal-history category of VI, the
PSR determined that his Guidelines range was 262–327 months. The district court
sentenced Burris to 262 months.
While Burris was serving his sentence, Congress passed the Fair Sentencing
Act of 2010, which, in relevant part, increased the quantity of crack cocaine required
to trigger the 10 years-to-life mandatory minimum and maximum sentences under
§ 841(b)(1)(A) from 50 grams to 280 grams. See § 2(a)(1), 124 Stat. at 2372.
Although the Fair Sentencing Act was not retroactive, Congress later made it so when
it passed the First Step Act of 2018, which provides that a district court may impose a
reduced sentence as though the relevant portions of the Fair Sentencing Act were in
effect at the time of the offense was committed. § 404(b), 132 Stat. at 5222.
Following these changes to the legal landscape, the Probation Office filed a
report advising the district court that Burris appeared eligible for a reduced sentence.
According to the report, the Fair Sentencing Act decreased Burris’s statutory
minimum and maximum sentences, which in turn decreased his offense level and his
resulting Guidelines range, reducing it from 262–327 months to 188–235 months.
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Burris subsequently filed a motion under 18 U.S.C. § 3582(c)(1)(B) and
§ 404(b) of the First Step Act requesting a sentence reduction. He argued that the
amount of crack cocaine referenced in his offense of conviction—50 grams—should
form the basis of the revised Guidelines calculation. He therefore agreed with the
Probation Office’s report that his revised Guidelines range was 188–235 months and
requested a sentence at the low end of that range. The government opposed the
motion, disputing Burris’s eligibility for a reduced sentence and alternatively arguing
that Burris’s Guidelines range had not changed because the PSR attributed more than
the threshold quantity of 280 grams of crack cocaine to Burris.
Although the district court determined that Burris was eligible for a sentence
reduction, it declined to grant relief. According to the district court, the parties’
arguments presented “myriad legal issues district courts have yet to address or about
which they disagree.” R. vol. 1, 162. The district court decided, however, that it
“need not resolve these issues” because the First Step Act grants courts discretion to
grant or deny relief. Id. Thus, the district court declined to calculate Burris’s
Guidelines range, stating that “[G]uidelines recalculations, whatever their result, are
simply one factor in the [c]ourt’s consideration—and not a controlling one at that.”
Id. at 163. The district court then turned to the 18 U.S.C. § 3553(a) sentencing factors
and concluded that Burris’s original 262-month sentence remained appropriate given
the severity of his conduct, the need to deter criminal behavior, and Burris’s criminal
history.
Burris appeals.
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Analysis
I. Guidelines Calculation
Burris argues that the district court erred when it declined to calculate his
revised Guidelines range prior to exercising its discretion to deny relief. We review a
district court’s disposition of a First Step Act motion for abuse of discretion.1 United
States v. Mannie, 971 F.3d 1145, 1155 (10th Cir. 2020). “A district court abuses its
discretion when it relies on an incorrect conclusion of law or a clearly erroneous
finding of fact.” United States v. Piper, 839 F.3d 1261, 1265 (10th Cir. 2016)
(quoting United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013)). “We review
matters of statutory interpretation, as well as the scope of a district court’s authority
to reduce a sentence, de novo.” United States v. Broadway, 1 F.4th 1206, 1211 (10th
Cir. 2021).
Since the district court’s ruling, we have largely resolved the underlying
issues. As the government acknowledges, its original position is no longer viable
because we have determined that both a defendant’s eligibility for First Step Act
1 The government contends that we should review only for plain error because Burris failed to argue below that the district court was obligated to calculate his new Guidelines range before deciding whether to reduce his sentence. The government acknowledges that Burris had no opportunity to object in person because the district court declined Burris’s request for a hearing, but it nevertheless asserts that Burris should have filed a motion for reconsideration to preserve the issue he raises in this appeal. We recently concluded (over the government’s argument to the contrary) that a motion for reconsideration can be filed in a § 3582 proceeding. See United States v. Warren, 22 F.4th 917, 922, 926 (10th Cir. 2022). But Warren did not hold that a motion for reconsideration must be filed to preserve an argument for appellate review. And the authorities the government cites do not state otherwise. We therefore reject the government’s argument for plain-error review.
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relief and the calculation of a defendant’s revised Guidelines range turn on the
offense of conviction. United States v. Crooks, 997 F.3d 1273, 1278 (10th Cir. 2021)
(holding that eligibility for relief under First Step Act turns on “defendant’s federal
offense of conviction, not his [or her] underlying conduct”); Broadway, 1 F.4th at
1213–14 (holding that “district court should look to the minimum drug quantity
associated with an eligible defendant’s offense of conviction, rather than his
underlying conduct” when conducting revised Guidelines calculation).
And critically, as Burris highlights, our decisions have also discussed a district
court’s obligation to calculate the revised Guidelines range prior to deciding, in its
discretion, whether to reduce a defendant’s sentence. In United States v. Brown, we
noted that although the First Step Act does not authorize plenary resentencing,
effecting the changes contemplated by the First Step Act nevertheless requires a
district court to “calculate the defendant’s Guideline[s] range.” 974 F.3d 1137, 1144
(10th Cir. 2020). We stressed that a correct Guidelines calculation is the “starting
point” to any sentencing proceeding and “paramount” when sentencing under the
First Step Act. See id. at 1144–45. Likewise, in Crooks, we recognized that the plain
language of the First Step Act directs courts to “‘impose a reduced sentence as if . . .
the Fair Sentencing Act . . . were in effect at the time the covered offense was
committed,’” a statutory mandate that “necessarily requires a correct calculation of
the [G]uidelines range.” 997 F.3d at 1278 (emphasis added) (quoting Brown, 974
F.3d at 1145). We therefore determined that “[t]he district court should have
recalculated the [G]uidelines range” and instructed the district court on remand to
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calculate the defendant’s revised Guidelines range before considering the § 3553(a)
factors. Id. at 1278, 1280. And in Broadway, we reiterated that the district court
should “determine whether the Fair Sentencing Act would have affected [the
defendant’s] sentence had it been in effect at the time of the defendant’s crime” and
then “[a]fter the district court does so, it may exercise its discretion to determine
whether to reduce a sentence, which may include consideration of the § 3553(a)
sentencing factors and the defendant’s underlying conduct.” 1 F.4th at 1213–14
(emphasis added).
As our recent decisions illustrate, a district court is obligated under the First
Step Act to correctly calculate the defendant’s revised Guidelines range prior to
exercising its discretion to grant or deny relief. Several of our sibling circuits agree.
See United States v. Blake, 22 F.4th 637, 641 (7th Cir. 2022) (per curiam) (“Although
courts are never obligated to grant [First Step Act] motions, their discretion ‘must be
informed by a calculation of the new sentencing parameters’ and an accurate
comparison between the original and new options.” (quoting United States v. Corner,
967 F.3d 662, 665 (7th Cir. 2020))); United States v. Collington, 995 F.3d 347, 355
(4th Cir. 2021) (explaining that “district courts must accurately recalculate the
Guidelines sentenc[ing] range” when addressing First Step Act motions); United
States v. Boulding, 960 F.3d 774, 784–85 (6th Cir. 2020) (concluding that First Step
Act “at a minimum” requires “accurate calculation of the amended [G]uidelines range
at the time of resentencing”); United States v. Murphy, 998 F.3d 549, 560 (3d Cir.
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2021) (finding that district court must make “accurate calculation” of revised
Guidelines range in First Step Act proceedings).
Resisting this conclusion, the government argues that our instruction in Brown
to begin with the correct Guidelines calculation conflicts with—and is accordingly
negated by—our earlier decision in Mannie. See Haynes v. Williams, 88 F.3d 898,
900 n.4 (10th Cir. 1996) (instructing court facing intra-circuit conflict to follow
earlier precedent). In so arguing, the government relies on the portion of Mannie in
which we addressed the defendant’s argument that we should review a decision under
the First Step Act “for an abuse of sentencing discretion, utilizing the two-step
approach” set forth in Gall v. United States, 552 U.S. 38 (2007). Id. at 1154–55
(citing Gall for proposition that appellate review of criminal defendant’s sentence has
two steps, procedural error and substantive reasonableness). We rejected this
argument in Mannie, because we reasoned that defendants who bring First Step Act
motions have already “had the opportunity to challenge the district court’s sentencing
decisions on direct appeal.” Id. at 1155. Thus, we concluded, “upon review of a
sentence-modification proceeding, this court reviews not the propriety of the
sentence itself, but the propriety of the district court’s grant or denial of the motion to
reduce the sentence.” Id.
The government seizes on our rejection of the defendant’s argument that
Gall’s two-step process should apply when we review First Step Act motions,
insisting that it conflicts with Brown’s direction that a district court confronting a
First Step Act motion must first calculate a defendant’s correct Guidelines range. But
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the government reads too much into this discussion. Gall’s two-step process involves
more than ensuring that the Guidelines were correctly calculated—indeed, the second
step of that process includes a review for substantive reasonableness of the sentence
as a whole, which has little to do with the underlying Guidelines calculations. See
Gall, 552 U.S. at 51. So our rejection of that two-step process for First Step Act
motions does not carry an implicit rejection of the notion that a district court faced
with a First Step Act motion must first calculate a defendant’s correct Guidelines
range. Simply put, we did not hold in Mannie that district courts are free to eschew
the Guidelines calculation in the First Step Act context. We merely found that our
review under the First Step Act is limited to the district court’s disposition of the
First Step Act motion. See Mannie, 971 F.3d at 1155. Thus, we see no conflict
between this discussion in Mannie and our instruction in Brown that a district court
must begin with the correct Guidelines calculation.
As further evidence of conflict, the government highlights Mannie’s comment
that the district court is not required to examine the § 3553(a) factors when deciding
a First Step Act motion. See 971 F.3d at 1158 n.18. According to the government,
Mannie’s comment conflicts with Brown’s instruction to calculate the correct
Guidelines range because one of the § 3553(a) factors is the Guidelines range itself.
See § 3553(a)(4). But again, the government reads too much into Mannie. Although
the Guidelines range is one of seven factors listed in § 3553(a), it is far more than
that. A defendant’s Guidelines range is “the starting point and the initial benchmark”
of sentencing, and “a district court should begin all sentencing proceedings by
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correctly calculating the applicable Guidelines range.” Gall, 552 U.S. at 49; see also
Brown, 974 F.3d at 1144–45 (explaining that Guidelines range is “starting point of
any sentencing” and is of “paramount” importance). We therefore see no
inconsistency between Brown’s direction that a district court ruling on a First Step
Act motion “must calculate the defendant’s Guideline[s] range,” 974 F.3d at 1144,
and Mannie’s accompanying instruction that the district court is “not required” to
consider the six other § 3553(a) factors when exercising its discretion, see 971 F.3d
at 1158 n.18. Thus, we reject the government’s argument that Mannie conflicts with
Brown.2
Next, in a letter of supplemental authority, the government contends that our
recent decision in Warren supports its position that the district court did not err by
“declining to decide the appropriate Guidelines range.” Aplee. Rule 28(j) Letter, Jan.
7, 2022. Warren involved, in part, the defendant’s argument (advanced for the first
time in a motion for reconsideration) that the sentencing court had improperly
designated him as a career offender, thus inflating his Guidelines range. 22 F.4th at
921. But rather than definitively deciding the career-offender question, the district
court assumed that the defendant was not a career offender and proceeded to deny
relief on other grounds. Id. at 929–30. The defendant argued on appeal that the
“district court was required to conduct an independent sentencing analysis anchored
2 The government alternatively proposes a solution to read Mannie and Brown harmoniously. Because we are unpersuaded that Mannie and Brown conflict, we do not reach the government’s alternative argument.
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in his proffered Guidelines range—without the career[-]offender designation.” Id. at
929. Under these facts, we found no error, reasoning that “[a]lthough the district
court did not explicitly grapple with the precise Guidelines range proffered by [the
defendant], it implicitly accepted that Guidelines range by performing its analysis
based on the assumption the career[-]offender classification did not apply.” Id. at
929–30. We also distinguished these facts from the facts in Crooks, explaining that
there, by contrast, “the district court refused to consider the career offender issue
entirely.” Id. at 930 (emphasis added).
Contrary to the government’s argument, this case is more like Crooks than
Warren. Here, unlike in Warren, the district court did not assume that Burris’s
proffered revised Guidelines range was correct. See 22 F.4th at 929–30. Instead, as in
Crooks, the district did not calculate Burris’s revised Guidelines range. See 997 F.3d
at 1278. We also observe that the procedural posture in Warren was different—there,
the defendant raised his Guidelines argument for the first time in a motion for
reconsideration. See 22 F.4th at 921. Thus, the government’s reliance on Warren is
misplaced.
In sum, although we recognize that the district court lacked the benefit of our
subsequent decisions, we conclude that it erred by failing to calculate Burris’s correct
Guidelines range prior to exercising its discretion. See Pelt v. Utah, 539 F.3d 1271,
1282 (10th Cir. 2008) (“Where a change of law occurs while a case is on appeal, we
apply the law in effect at the time of our decision.”).
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II. Harmless Error
The government argues that even if the district court erred, any error was
harmless. In the sentencing context, an error is harmless if it “did not affect the
district court’s selection of the sentence imposed.” United States v. Montgomery, 439
F.3d 1260, 1263 (10th Cir. 2006) (quoting United States v. Labastida-Segura, 396
F.3d 1140, 1143 (10th Cir. 2005)). As the beneficiary of the error, the government
bears the burden of proving harmlessness by a preponderance of the evidence. United
States v. Sanchez-Leon, 764 F.3d 1248, 1262–63 (10th Cir. 2014).
We have not directly addressed whether failing to calculate the Guidelines
range when ruling on a First Step Act motion is harmless error, but we are persuaded
by the Seventh Circuit’s reasoning in a factually similar case. In Blake, like here, the
district court “sidestepped the parties’ dispute about the quantity of drugs attributable
to [the defendant] for sentencing purposes and thus never calculated the retroactively
lowered range under the [Guidelines].” 22 F.4th at 639. Then, like here, the district
court “proceeded directly to assessing whether, as a matter of its discretion, [the
defendant] deserved a reduced sentence.” Id. at 640. The Seventh Circuit found error,
as we have, explaining that when faced with a difficult Guidelines calculation, courts
cannot bypass the calculation and proceed directly to the § 3553(a) factors. See id. at
642. It further concluded that the very nature of this error “preclude[d] a finding of
harmlessness,” reasoning that “district courts must begin their analysis with the
Guidelines and remain cognizant of them throughout the sentencing process.” Id. at
642 (quoting Peugh v. United States, 569 U.S. 530, 541 (2013)). By failing to
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calculate the Guidelines range, the Seventh Circuit noted, the district court’s
“exercise of discretion was untethered from the ‘benchmark’ of the new sentencing
framework.” Id. (quoting Corner, 967 F.3d at 666).
Yet here, the government contends that any error was harmless because the
district court “looked at both proposed [G]uidelines ranges and concluded that it
would deny the motion under either [G]uidelines range.” Aplee. Br. 11. True, the
district court stated it would deny relief “whatever the[] result” of the correct
Guidelines calculation. R. vol. 1, 1663. But “[o]ur court has rejected the notion that
district courts can insulate sentencing decisions from review by making such
statements.” United States v. Gieswein, 887 F.3d 1054, 1062–63 (10th Cir. 2018). For
example, we have found a district court’s alternative holding that “the same sentence
would be imposed even if the advisory [Guidelines] range was determined to be
improperly calculated” insufficient to establish that a procedural error in calculating
a defendant’s Guidelines range was harmless. United States v. Peña-Hermosillo, 522
F.3d 1108, 1117 (10th Cir. 2008) (quoting R. 70). We explained that “it is hard . . . to
imagine a case where it would be procedurally reasonable for a district court to
announce that the same sentence would apply even if correct [G]uidelines
calculations are so substantially different, without cogent explanation.” Id.; see also
Gieswein, 887 F.3d at 1062 (giving “little weight to the district court’s statement that
its conclusion would be the same ‘even if all of the defendant’s objections to the
presentence report had been successful’”).
At the same time, procedural error can be harmless in certain “exceptional
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instances.” Gieswein, 887 F.3d at 1061. Gieswein was one such “rare” case because
the district court had offered a “thorough” and “cogent” explanation for the imposed
sentence. Id. at 1061, 1063. In finding that particular error harmless, though, we
made it clear that “in the vast majority of cases,” a district court’s pronouncement
that the same sentence would apply even if the Guidelines calculation was
substantially different would not be procedurally reasonable. See id. at 1063.
Here, we agree with the Seventh Circuit that the district court’s error, by its
very nature, was not harmless; the district court’s exercise of discretion was
untethered from the correct calculation of Burris’s revised Guidelines range. See
Blake, 22 F.4th at 642–43. Moreover, the district court’s reasoning that it would deny
relief regardless of the correct Guidelines calculation does not overcome this
conclusion. The district court’s explanation that Burris’s original sentence was
appropriate under the § 3553(a) factors was cursory, especially given the extent of
the variance between the original and new Guidelines range. See Peña-Hermosillo,
522 F.3d at 1117. Based on this record, we are not persuaded that the district court’s
failure to calculate Burris’s correct Guidelines range did not affect its decision to
deny relief. See Montgomery, 439 F.3d at 1263. Thus, we hold that the government
has not met its burden to prove harmlessness.
Conclusion
Under the First Step Act, a district court must begin with a correct calculation
of the revised Guidelines range prior to deciding, in its discretion, whether to reduce
a defendant’s sentence. The district court erred by failing do so here. Further, we are
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not persuaded, on this record, that the error was harmless. We therefore reverse the
district court’s order denying Burris’s First Step Act motion and remand for further