United States v. Carlton Potts

997 F.3d 1142

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 19, 2021
• Docket: 19-12061
• Status: Published

Opinion

USCA11 Case: 19-12061 Date Filed: 05/19/2021 Page: 1 of 11

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12061 ________________________

D.C. Docket No. 9:06-cr-80070-DMM-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLTON POTTS, a.k.a. Pep,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 19, 2021)

Before LAGOA, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge: USCA11 Case: 19-12061 Date Filed: 05/19/2021 Page: 2 of 11

Carlton Potts appeals the district court’s denial of his motion for a sentence

reduction pursuant to § 404(b) of the First Step Act, Pub. L. No. 115-391, 132 Stat.

5194. After a careful review of the record and with the benefit of oral argument,

we affirm.

I. BACKGROUND

A. Initial Sentencing

In 2006, Potts entered guilty pleas in two consolidated criminal cases

pursuant to a written plea agreement. In Case No. 06-cr-80070, Potts pled guilty to

conspiracy to distribute at least 50 grams of crack cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(iii) and 846.

In Case No. 06-cr-80081, Potts pled guilty to drug and firearm offenses:

(1) conspiracy to manufacture, possess with intent to distribute, and distribute at

least 50 grams of crack cocaine and at least 5 kilograms of powder cocaine, in

violation of §§ 841(a)(1), (b)(1)(A)(iii) and 846; and (2) being a felon in

possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g) and

924(e).

At sentencing, the district court calculated Potts’ advisory guidelines range

of 360 months to life for his two drug convictions. The district court granted Potts

a U.S.S.G. § 5K1.1 downward departure for substantial assistance and imposed

concurrent 240-month sentences on each drug case, followed by concurrent

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supervised release terms of 10 years in Case No. 06-cr-80070 and 5 years in Case

No. 06-cr-80081. For his § 922(g) firearm conviction in Case No. 06‑cr‑80081,

Potts received a third concurrent 240-month prison sentence and a concurrent 5-

year term of supervised release.

B. First Step Act Motion

In March 2019, Potts filed a pro se “Motion for Appointment of Counsel and

Motion for Reduction of Sentence” under the First Step Act.1 Potts’ motion argued

he was eligible for a sentence reduction under the First Step Act and should receive

one.

At the district court’s direction, the government and the probation officer

filed responses to Potts’ First Step Act motion for a sentence reduction. The

government opposed Potts’ motion, arguing that: (1) Potts was ineligible for a First

Step Act reduction because he was not convicted of a “covered offense”; and (2) in

any event, even if he was eligible, such relief was not warranted based on the 18

U.S.C. § 3553(a) factors and the facts and circumstances of Potts’ case. The

government addressed certain § 3553(a) factors and why a reduction was not

1 Potts’ motion for a sentence reduction also cited 18 U.S.C. § 3582(c). However, this Court has now held that a motion brought under the First Step Act need not be paired with a request for relief under § 3582(c)(1)(B) because the First Step Act is self-contained and self- executing. See United States v. Edwards, ___ F.3d ___, 2021 WL 1916358, at *2 (11th Cir. May 13, 2021). 3 USCA11 Case: 19-12061 Date Filed: 05/19/2021 Page: 4 of 11

warranted. In particular, the government emphasized Potts’ extensive criminal

history and the seriousness of his offenses.

The probation officer, however, filed a memorandum that determined that

Potts was eligible for relief under the First Step Act. As a result, the memorandum

calculated a new advisory guidelines range of 292 to 356 months after Amendment

782 to the Sentencing Guidelines. The probation officer also advised the district

court what Potts’ new mandatory minimum and maximum penalties would be with

retroactive application of the Fair Sentencing Act. In particular, the probation

officer’s memorandum advised that Potts’ minimum supervised release term on his

drug conviction in Case No. 06‑cr‑80070 was reduced from 10 years to 8 years

under the Fair Sentencing Act. As to Case No. 06-cr-80081, the probation

officer’s memorandum stated that his minimum supervised release term on his

drug conviction was 5 years and the minimum supervised release term on his

firearm conviction remained at 5 years.

In a May 7, 2019 order, the district court denied Potts’ First Step Act

motion, “[a]fter consideration of the government and probation’s responses.” The

court concluded that: (1) Potts was ineligible because he was not sentenced for a

“covered offense” within the meaning of the First Step Act; and alternatively (2)

“even if legally eligible for a sentence reduction pursuant to the First Step Act, the

factors set forth in 18 U.S.C. § 3553(a) indicate that a sentence reduction is

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unwarranted under the facts and circumstances of this case.” Potts filed this

appeal, and this Court appointed him counsel.

C. Compassionate Release to Time Served

On September 14, 2020, while Potts’ appeal was pending, the district court

granted Potts’ motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A).

After analyzing the § 3553(a) factors, the district court concluded that there were

compelling reasons to grant relief. Potts’ serious medical conditions rendered him

uniquely vulnerable to COVID-19 and that outweighed his extensive criminal

history. The district court reduced Potts’ prison term to time served on his two

drug convictions and his firearm conviction and ordered him released immediately.

As a special condition of compassionate release, the district court imposed

an additional 37-month supervised release term—the unserved portion of his

original prison sentence—to be served on “home confinement” before serving his

original, concurrent supervised release terms of 10 years and 5 years.

II. DISCUSSION

After supplemental briefing, the parties agree that Potts’ compassionate

release renders his appeal moot as to his prison terms but not as to his

undischarged supervised release terms. The parties also agree that, in light of this

Court’s decision in United States v. Jones, 962 F.3d 1290 (11th Cir. 2020), Potts’

crack cocaine offenses qualify as “covered offenses” under the First Step Act,

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making him eligible for a reduction of his supervised release terms on his two drug

convictions. However, the First Step Act did not change his 5-year concurrent

supervised release term on his firearm conviction. So, no matter the drug

convictions, Potts still has a 5-year supervised release term on his firearm

conviction.

Thus, the issue on appeal is whether the district court abused its discretion in

declining to reduce Potts’ (1) 10-year supervised release term on his drug

conviction in Case No. 06-cr-80070, and (2) his 5-year supervised release term on

his drug conviction in Case No. 06-cr-80081. 2 As to Case No. 06-cr-80081, as

noted above, Potts has a 5-year supervised release term for his firearm conviction

in the same case. Thus, the more important supervised release term for Potts is his

existing 10-year supervised release term on his separate drug conviction in Case

No. 06-cr-80070.

Although the district court was authorized to reduce Potts’ prison terms and

his supervised release terms, it was not required to do so. See United States v.

Denson, 963 F.3d 1080, 1084 (11th Cir. 2020); Jones, 962 F.3d at 1304. Indeed,

the district court has “wide latitude to determine whether and how to exercise [its]

2 We review for abuse of discretion a district court’s denial of an eligible movant’s First Step Act motion and “must affirm unless the district court made a clear error of judgment or applied the wrong legal standard.” United States v. Denson, 963 F.3d 1080, 1086 n.4 (11th Cir. 2020). 6 USCA11 Case: 19-12061 Date Filed: 05/19/2021 Page: 7 of 11

discretion in [the First Step Act] context.” Id. In its alternative ruling, the district

court concluded that a reduction under the First Step Act was unwarranted in light

of “the factors set forth in 18 U.S.C. § 3553(a)” and “under the facts and

circumstances of this case.” It is undisputed that Potts had an extensive criminal

history and qualified as both a career offender and an armed career criminal under

the Sentencing Guidelines. Under the circumstances, we cannot say the district

court’s refusal to reduce Potts’ supervised release terms was an abuse of its

discretion.

Potts argues we must remand because we cannot discern from the district

court’s alternative ruling which § 3553(a) factors it considered, making it

incapable of meaningful appellate review. At the outset, this Court recently held

that “the First Step Act does not mandate consideration of the statutory sentencing

factors set forth in § 3553(a)” United States v. Stevens, ___ F.3d ___, No. 19-

12858, slip op. at 15 (11th Cir. May 19, 2021) (explaining that to hold otherwise

“would impermissibly hamper and cabin [the] wide discretion that Congress

expressly afforded district courts”). Thus, a district court may, but is not required

to, consider the § 3553(a) factors in deciding whether to exercise its discretion and

reduce a sentence under the First Step Act. See id.: Jones, 962 F.3d at 1304.

That said, the district court’s decision whether to reduce a defendant’s

sentence under the First Step Act “must adequately explain its sentencing decision

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to allow for meaningful appellate review.” Stevens, ___ F.3d at ___, No.

19‑12858, slip op. at 16. As with an initial sentencing, the district court should

set forth enough to demonstrate it “considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.” Id. at ___,

No. 19-12858, slip op. at 16 (alteration in original) (citing Rita v. United States,

551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007), and Gall v. United States, 552

U.S. 38, 50, 128 S. Ct. 586, 597 (2007)); see also United States v. Russell, 994

F.3d 1230, 1239 (11th Cir. 2021). How much explanation is required “depends . . .

upon the circumstances of the particular case.” Chavez-Meza v. United States, 585

U.S. ___, 138 S. Ct. 1959, 1965 (2018); see also Stevens, ___ F.3d at ___, No. 19-

12858, slip op. at 16 (acknowledging that the explanation “need not necessarily be

lengthy” so long as it makes clear the district court’s reasoned basis for its

decision). “In some cases, it may be sufficient for purposes of appellate review

that the judge simply relied upon the record, while making clear that he or she has

considered the parties’ arguments and taken account of the §3553(a) factors,

among others.” Chavez-Meza, 585 U.S. at ___, 138 S. Ct. at 1965; see also United

States v. Eggersdorf, 126 F.3d 1318, 1322-23 (11th Cir. 1997) (finding district

court’s explanation for denying a § 3582(c)(2) reduction sufficient where it stated

it had reviewed the government’s brief in opposition that set out and addressed the

pertinent § 3553(a) factors).

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Here, the district court stated it had reviewed the government’s response,

which set out and addressed the § 3553(a) factors, and the probation officer’s

memorandum. And, as noted above, as to Potts’ drug conviction in Case No.

06‑cr‑80070, the probation officer’s memorandum not only indicated Potts was

eligible for a sentence reduction but also set forth the fact that his minimum

supervised release term was reduced from 10 years to 8 years. As to Case No.

06‑cr‑80081, Potts had a 5-year supervised release term on his firearm conviction,

no matter the supervised release term on his drug conviction in that case. 3 The

district court stated that, after reviewing the government’s response and the

probation officer’s memorandum, it had determined the § 3553(a) factors indicated

that a reduction was not warranted under the facts and circumstances of Potts’

case. The district court’s explanation, while brief, was sufficient, and a remand for

a more complete explanation is unnecessary. And, the district court’s decision not

to reduce Potts’ supervised release terms under the First Step Act was not an abuse

of discretion.

Finally, we note this case is materially different from our recent decision in

Russell for several reasons. First, the defendant in Russell merely wrote a letter

3 While Potts’ counsel does not raise this issue, the probation officer’s memorandum said the new supervised release term on the drug conviction in Case No. 06-cr-80081 was 5 years when it was 4 years. That seems to be a typo. But, we conclude any error in the probation officer’s memorandum was harmless, as Potts had 5 years of supervised release on his firearm conviction anyway.

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asking the district court to appoint counsel to assist him in filing a First Step Act

motion. Russell, 994 F.3d at 1234. The district court sua sponte converted his

request into a motion for a sentence reduction although the defendant did not

request a sentence reduction in his letter. Id. at 1240 & n.9. In contrast, Potts filed

a combined motion for appointment of counsel and for a sentence reduction in

which he argued that he was both eligible for and deserved a sentence reduction

under the First Step Act.

Second, in Russell the district court ordered the probation officer to file a

response, but that response was never made part of the record. Id. at 1235 n.3.

Here, unlike in Russell, the district court’s order expressly referenced the probation

officer’s memorandum, which advised that Potts was eligible for a sentence

reduction. Further, the government’s response alternatively assumed Potts was

eligible and addressed whether the district court should exercise its discretion and

reduce Potts’ sentences. In doing so, the government reviewed the facts and

circumstances of Potts’ case, addressed the § 3553(a) factors, and stressed his

extensive criminal history and the seriousness of his offenses.

Third, and perhaps most importantly, the record in Potts’ case is not

ambiguous as to the district court’s alternative ruling denying Potts a sentence

reduction as a matter of discretion. In its alternative ruling, the district court stated

that “even if [Potts was] legally eligible,”—meaning the court accepted for

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purposes of its alternative ruling that it had the authority to grant Potts’ motion—it

would not reduce Potts’ sentence as a matter of discretion in light of the § 3553(a)

factors and the facts and circumstances of Potts’ case. The district court did not

include any “ambiguous” language like that found in the district court’s

reconsideration order in Russell. See id. at 1239. Rather, here we are fully able to

discern the district court’s two alternative bases for denying Potts’ motion for a

sentence reduction.

In short, we find the district court’s brief explanation for that alternative

ruling adequate for meaningful appellate review, and a remand is not required

here.4

AFFIRMED.

4 For completeness and clarity, we point out that the district court in Stevens said only “[e]ven if the First Step Act applied, the Court would still impose a sentence of five (5) years of supervised release.” Stevens, ___ F.3d at ___, 19-12858, slip op. at 6 (quotation marks omitted, alteration in original). Here though, the district court said more, as outlined above, and we are able to conduct meaningful appellate review under the facts and circumstance of this case. The government argues that a remand is not required because we can look to the district court’s compassionate release order to conclude that it would be futile to remand, as the district court reaffirmed the same terms of supervised release in that order. In effect, the government says remand is unnecessary because any alleged error was harmless. We need not address this argument given our holding above. Further, we note that Potts is not only now released but also has a mandatory 5-year concurrent term of supervised release on his firearm conviction that is not impacted by the First Step Act. 11