Case: 19-12707 Date Filed: 08/14/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12707 Non-Argument Calendar ________________________
D.C. Docket No. 9:07-cr-80041-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWYNE BYRON DERUISE, a.k.a. Duke,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 14, 2020)
Before JILL PRYOR, GRANT and LUCK, Circuit Judges.
PER CURIAM: Case: 19-12707 Date Filed: 08/14/2020 Page: 2 of 7
Dwyne Deruise appeals the district court’s determination that it had no
authority under § 404 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat.
5194 (the “First Step Act”) to conduct a plenary sentencing hearing to consider
whether Deruise still qualified as a career offender when granting him a reduction
in his sentence under the First Step Act. Deruise argues that the First Step Act
authorized district courts to conduct a full resentencing because nothing in the act
limits what the court may consider in imposing a reduced sentence. After careful
consideration, we affirm the district court’s determination.
In 2007, a grand jury indicted Deruise on three counts of distributing cocaine
and crack cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), (B), (C)
(Counts 1-3); two counts of manufacturing and possessing with intent to distribute
at least 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A),
and 18 U.S.C. § 2 (Counts 4-5); and one count of carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(Count 6). Deruise pled guilty to Counts 5 and 6.
In calculating Deruise’s guideline range using the 2006 Sentencing
Guidelines, the Presentence Investigation Report (“PSR”) calculated Deruise’s
total offense level as 34 and his criminal history category as VI. With a total
offense level of 34 and a criminal history category of VI, the guideline range was
262 to 327 months’ imprisonment. Because Deruise had two prior felony
2 Case: 19-12707 Date Filed: 08/14/2020 Page: 3 of 7
convictions for battery on a law enforcement officer—predicate offenses that
qualified as “crimes of violence”—he was eligible for the career-offender
enhancement under § 4B1.1, which increased the guideline range to 322 to 387
months’ imprisonment. Both Count 5 and 6 carried statutory minimum terms of
imprisonment, 10 years for Count 5 and five years to run consecutively for Count
6.
At Deruise’s sentencing, the district court adopted the findings of fact and
guideline calculations in the PSR. The district court sentenced him to 204 months’
imprisonment on Count 5, and a consecutive term of 60 months’ imprisonment on
Count 6, for a total term of 264 months’ imprisonment, which represented a 58-
month downward variance from the low end of the guideline range. The district
court also sentenced him to five years’ supervised release on each count, to run
concurrently.
In 2019, Deruise filed a motion for reduction of sentence under the First
Step Act, arguing that he was eligible for a sentence reduction because his drug
conviction in Count 5 was a covered offense. In seeking a reduction of his
sentence on Count 5, Deruise argued that the district court should conduct a full
resentencing hearing, apply the law and guidelines in effect now, and, in light of
Johnson v. United States, 559 U.S. 133 (2010), resentence him as if he were not a
career offender.
3 Case: 19-12707 Date Filed: 08/14/2020 Page: 4 of 7
The district court granted Deruise’s motion for a reduction of his sentence
under the First Step Act and, considering all of the facts of the case and the §
3353(a) factors, reduced his sentence on Count 5 to 168 months’ imprisonment, to
be followed by a consecutive 60-month sentence on Count 6, for a total sentence of
228 months’ imprisonment.
After the district court’s order granting the motion, Deruise filed an
unopposed motion asking the district court to clarify whether in granting his
motion to reduce his sentence the court continued to classify Deruise as a career
offender. In response, the district court issued an order stating that a motion to
reduce sentence under the First Step Act does not authorize a full resentencing or a
sentencing de novo, and, therefore, in granting Deruise’s motion to reduce his
sentence, the court continued to treat him as a career offender. This appeal
followed.
We review for abuse of discretion a district court’s ruling on an eligible
movant’s request for a reduced sentence under the First Step Act. United States v.
Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). Where the request poses a legal
question, however, our review is de novo. United States v. Pringle, 350 F.3d 1172,
1178-79 (11th Cir. 2003). We review de novo the district court’s statutory
interpretation, a legal issue. United States v. Segarra, 582 F.3d 1269, 1271 (11th
Cir. 2009).
4 Case: 19-12707 Date Filed: 08/14/2020 Page: 5 of 7
On appeal, Deruise argues that the district court erred in concluding that it
had no authority under the First Step Act to conduct a de novo resentencing and
therefore could not consider whether Deruise still qualified as a career offender.
Deruise argues that the First Step Act authorized district courts to conduct a full
resentencing because nothing in the act limits what the court may consider in
imposing a reduced sentence, and where a statute places no restrictions on the
factors a court may consider in imposing a reduced sentence, the court may
consider all relevant § 3553(a) factors. Deruise further argues that because
Johnson called into question whether Florida battery on a law enforcement officer,
which was one of his predicate offenses, was a crime of violence, the court should
consider that change in law when reducing a sentence under the First Step Act.
The Fair Sentencing Act, enacted on August 3, 2010, amended 21 U.S.C.
§§ 841(b)(1) and 960(b) to reduce the sentencing disparity between offenses
involving crack and powder cocaine. Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372 (the “Fair Sentencing Act”); see Dorsey v. United States,
567 U.S. 260, 268-69 (2012) (detailing the history that led to enactment of the Fair
Sentencing Act, including the Sentencing Commission’s criticisms that the
disparity between crack cocaine and powder cocaine offenses was disproportional
and reflected race-based differences). Section 2 of the Fair Sentencing Act
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Case: 19-12707 Date Filed: 08/14/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12707 Non-Argument Calendar ________________________
D.C. Docket No. 9:07-cr-80041-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWYNE BYRON DERUISE, a.k.a. Duke,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 14, 2020)
Before JILL PRYOR, GRANT and LUCK, Circuit Judges.
PER CURIAM: Case: 19-12707 Date Filed: 08/14/2020 Page: 2 of 7
Dwyne Deruise appeals the district court’s determination that it had no
authority under § 404 of the First Step Act of 2018, Pub. L. 115-391, 132 Stat.
5194 (the “First Step Act”) to conduct a plenary sentencing hearing to consider
whether Deruise still qualified as a career offender when granting him a reduction
in his sentence under the First Step Act. Deruise argues that the First Step Act
authorized district courts to conduct a full resentencing because nothing in the act
limits what the court may consider in imposing a reduced sentence. After careful
consideration, we affirm the district court’s determination.
In 2007, a grand jury indicted Deruise on three counts of distributing cocaine
and crack cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), (B), (C)
(Counts 1-3); two counts of manufacturing and possessing with intent to distribute
at least 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A),
and 18 U.S.C. § 2 (Counts 4-5); and one count of carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(Count 6). Deruise pled guilty to Counts 5 and 6.
In calculating Deruise’s guideline range using the 2006 Sentencing
Guidelines, the Presentence Investigation Report (“PSR”) calculated Deruise’s
total offense level as 34 and his criminal history category as VI. With a total
offense level of 34 and a criminal history category of VI, the guideline range was
262 to 327 months’ imprisonment. Because Deruise had two prior felony
2 Case: 19-12707 Date Filed: 08/14/2020 Page: 3 of 7
convictions for battery on a law enforcement officer—predicate offenses that
qualified as “crimes of violence”—he was eligible for the career-offender
enhancement under § 4B1.1, which increased the guideline range to 322 to 387
months’ imprisonment. Both Count 5 and 6 carried statutory minimum terms of
imprisonment, 10 years for Count 5 and five years to run consecutively for Count
6.
At Deruise’s sentencing, the district court adopted the findings of fact and
guideline calculations in the PSR. The district court sentenced him to 204 months’
imprisonment on Count 5, and a consecutive term of 60 months’ imprisonment on
Count 6, for a total term of 264 months’ imprisonment, which represented a 58-
month downward variance from the low end of the guideline range. The district
court also sentenced him to five years’ supervised release on each count, to run
concurrently.
In 2019, Deruise filed a motion for reduction of sentence under the First
Step Act, arguing that he was eligible for a sentence reduction because his drug
conviction in Count 5 was a covered offense. In seeking a reduction of his
sentence on Count 5, Deruise argued that the district court should conduct a full
resentencing hearing, apply the law and guidelines in effect now, and, in light of
Johnson v. United States, 559 U.S. 133 (2010), resentence him as if he were not a
career offender.
3 Case: 19-12707 Date Filed: 08/14/2020 Page: 4 of 7
The district court granted Deruise’s motion for a reduction of his sentence
under the First Step Act and, considering all of the facts of the case and the §
3353(a) factors, reduced his sentence on Count 5 to 168 months’ imprisonment, to
be followed by a consecutive 60-month sentence on Count 6, for a total sentence of
228 months’ imprisonment.
After the district court’s order granting the motion, Deruise filed an
unopposed motion asking the district court to clarify whether in granting his
motion to reduce his sentence the court continued to classify Deruise as a career
offender. In response, the district court issued an order stating that a motion to
reduce sentence under the First Step Act does not authorize a full resentencing or a
sentencing de novo, and, therefore, in granting Deruise’s motion to reduce his
sentence, the court continued to treat him as a career offender. This appeal
followed.
We review for abuse of discretion a district court’s ruling on an eligible
movant’s request for a reduced sentence under the First Step Act. United States v.
Jones, 962 F.3d 1290, 1296 (11th Cir. 2020). Where the request poses a legal
question, however, our review is de novo. United States v. Pringle, 350 F.3d 1172,
1178-79 (11th Cir. 2003). We review de novo the district court’s statutory
interpretation, a legal issue. United States v. Segarra, 582 F.3d 1269, 1271 (11th
Cir. 2009).
4 Case: 19-12707 Date Filed: 08/14/2020 Page: 5 of 7
On appeal, Deruise argues that the district court erred in concluding that it
had no authority under the First Step Act to conduct a de novo resentencing and
therefore could not consider whether Deruise still qualified as a career offender.
Deruise argues that the First Step Act authorized district courts to conduct a full
resentencing because nothing in the act limits what the court may consider in
imposing a reduced sentence, and where a statute places no restrictions on the
factors a court may consider in imposing a reduced sentence, the court may
consider all relevant § 3553(a) factors. Deruise further argues that because
Johnson called into question whether Florida battery on a law enforcement officer,
which was one of his predicate offenses, was a crime of violence, the court should
consider that change in law when reducing a sentence under the First Step Act.
The Fair Sentencing Act, enacted on August 3, 2010, amended 21 U.S.C.
§§ 841(b)(1) and 960(b) to reduce the sentencing disparity between offenses
involving crack and powder cocaine. Fair Sentencing Act of 2010, Pub. L. No.
111-220, 124 Stat. 2372 (the “Fair Sentencing Act”); see Dorsey v. United States,
567 U.S. 260, 268-69 (2012) (detailing the history that led to enactment of the Fair
Sentencing Act, including the Sentencing Commission’s criticisms that the
disparity between crack cocaine and powder cocaine offenses was disproportional
and reflected race-based differences). Section 2 of the Fair Sentencing Act
changed the quantity of crack cocaine necessary to trigger a 10-year mandatory
5 Case: 19-12707 Date Filed: 08/14/2020 Page: 6 of 7
minimum from 50 grams to 280 grams and the quantity necessary to trigger a five-
year mandatory minimum from five grams to 28 grams. Fair Sentencing Act
§ 2(a)(1)-(2); see also 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii). These amendments
were not made retroactive to defendants who were sentenced before the enactment
of the Fair Sentencing Act. United States v. Berry, 701 F.3d 374, 377 (11th Cir.
2012).
In 2018, Congress enacted the First Step Act, which made retroactive the
Fair Sentencing Act’s statutory penalties for covered offenses. See First Step Act
§ 404. Under § 404(b) of the First Step Act, 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 . . . were in effect at the time the covered offense was
committed.” Id. § 404(b). The statute defines “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.” Id. § 404(a).
In United States v. Denson, we held that “the First Step Act does not
authorize the district court to conduct a plenary or de novo resentencing.” 963
F.3d 1080, 1089 (11th Cir. 2020). When ruling on a defendant’s First Step Act
motion, a district court is permitted to reduce a defendant’s sentence “only on a
‘covered offense,’ and only ‘as if’ sections 2 and 3 of the Fair Sentencing Act were
6 Case: 19-12707 Date Filed: 08/14/2020 Page: 7 of 7
in effect when he committed the covered offense.” Id. The district court “is not
free to change the defendant’s original guidelines calculations that are unaffected
by sections 2 and 3 [or] to reduce the defendant’s sentence on the covered offense
based on changes in the law beyond those mandated by sections 2 and 3.” Id.
Accordingly, the district court did not err in concluding that it lacked the authority
to conduct a de novo resentencing under the First Step Act to consider Deruise’s
career-offender status under current law.
AFFIRMED.