United States v. Elijah James Chisolm

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 8, 2023
• Docket: 23-11672
• Status: Unpublished

Opinion

USCA11 Case: 23-11672 Document: 16-1 Date Filed: 11/08/2023 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-11672 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIJAH JAMES CHISOLM, a.k.a. Jamie,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 5:08-cr-00022-RH-CJK-2 USCA11 Case: 23-11672 Document: 16-1 Date Filed: 11/08/2023 Page: 2 of 6

2 Opinion of the Court 23-11672

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: Elijah Chisolm, a federal prisoner proceeding pro se, appeals the district court’s order denying his motion for a sentence reduc- tion pursuant to § 404 of the First Step Act of 2018. The govern- ment has moved for summary affirmance. We grant the govern- ment’s motion. I. In 2009, a jury found Chisolm guilty of one count of con- spiring to distribute or possess with intent to distribute 50 grams or more of crack cocaine (Count One), one count of distributing 50 grams or more of crack cocaine (Count Two), two counts of dis- tributing five grams or more of crack cocaine (Counts Five and Six), and one count of distributing cocaine (Count Seven). Chisolm faced mandatory life sentences on Counts One and Two because he had two prior convictions for felony drug offenses. See 21 U.S.C. § 841(b)(1)(A)(iii) (2008). In addition, the district court found at sen- tencing that Chisolm was subject to a career-offender enhance- ment. The court ultimately sentenced Chisolm to a term of life im- prisonment on Counts One, Two, Five, and Six and 360 months’ imprisonment on Count Seven, all to run concurrently. On appeal, we affirmed Chisolm’s convictions and sentence. See United States v. Chisolm, 367 F. App’x 43 (11th Cir. 2010) (unpublished). USCA11 Case: 23-11672 Document: 16-1 Date Filed: 11/08/2023 Page: 3 of 6

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In 2010, Congress passed the Fair Sentencing Act to address disparities in sentences between offenses involving crack cocaine and those involving powder cocaine. See Pub. L. No. 111-220, 124 Stat. 2372 (2010); see also Kimbrough v. United States, 552 U.S. 85, 97–100 (2007) (providing background on disparity). The Fair Sen- tencing Act increased the quantity of crack cocaine necessary to trigger the highest statutory penalties from 50 grams to 280 grams and the quantity of crack cocaine necessary to trigger intermediate statutory penalties from 5 grams to 28 grams. See Fair Sentencing Act § 2; 21 U.S.C § 841(b)(1)(A)(iii), (B)(iii) (2011). But the Fair Sen- tencing Act’s reduced penalties applied only to defendants who were sentenced on or after the Fair Sentencing Act’s effective date. Dorsey v. United States, 567 U.S. 260, 264 (2012). In 2018, Congress passed the First Step Act, Pub. L. No. 115- 391, 132 Stat. 5194 (2018). Among other things, the First Step Act gave district courts the discretion to apply retroactively the re- duced statutory penalties for crack-cocaine offenses in the Fair Sen- tencing Act of 2010 to movants sentenced before those penalties became effective. See First Step Act § 404. After the First Step Act went into effect, Chisolm filed a mo- tion seeking a sentence reduction under the Act. The district court reduced his sentence to a term of 360 months’ imprisonment. About a year after the district court reduced his sentence, Chisolm filed a second motion under § 404, requesting a further sentence reduction. The government opposed the motion arguing, among other things, that the district court lacked the authority to USCA11 Case: 23-11672 Document: 16-1 Date Filed: 11/08/2023 Page: 4 of 6

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reduce Chisolm’s sentence because the court had already reduced his sentence in accordance with the Fair Sentencing Act. The dis- trict court denied Chisolm’s motion, explaining that the First Step Act “allow[ed] only a single reduction” under § 404. Doc. 321 at 1. 1 A few months later, Chisolm filed a third motion seeking a sentence reduction under § 404 of the First Step Act. This time Chi- solm argued that the district court should further reduce his sen- tence because it had erred at sentencing in applying the career-of- fender enhancement. The government opposed Chisolm’s motion, again arguing that the district court lacked the authority to further reduce Chisolm’s sentence because he had already received a sen- tence reduction. The district court denied Chisolm’s third motion based on § 404(c)’s bar on successive motions. 2 This is Chisolm’s appeal. II. Summary disposition is appropriate either where time is of the essence, such as “situations where important public policy is- sues are involved or those where rights delayed are rights denied,” or where “the position of one of the parties is clearly right as a mat- ter of law so that there can be no substantial question as to the out- come of the case, or where, as is more frequently the case, the

1 “Doc.” numbers refer to the district court’s docket entries.

2 The district court also concluded that even if it had the authority to further

reduce Chisolm’s sentence, it would deny his motion because he had been properly sentenced under the career-offender enhancement. USCA11 Case: 23-11672 Document: 16-1 Date Filed: 11/08/2023 Page: 5 of 6

23-11672 Opinion of the Court 5

appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 3 We review de novo whether a district court had the authority to modify a defendant’s term of imprisonment under the First Step Act. United States v. Jackson, 58 F.4th 1331, 1335 (11th Cir. 2023). III. District courts generally lack the authority to modify a term of imprisonment once it has been imposed. See 18 U.S.C. § 3582(c). But the First Step Act permits district courts to reduce some previ- ously-imposed terms of imprisonment for offenses involving crack cocaine. See First Step Act § 404. Section 404(c) imposes a limit on successive motions for sentence reductions. It states that “[n]o court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously re- duced in accordance with the . . . Fair Sentencing Act . . . or if a previous motion made under this section to reduce the sentence was . . . denied.” First Step Act § 404(c). Under this provision, “[a] district court may not consider a First Step Act motion if the mo- vant’s sentence was already reduced under the Fair Sentencing Act or if the court considered and rejected a motion under the First Step Act.” Concepcion v. United States, 597 U.S. 481, 496 (2022); see also United States v. Gonzalez, 71 F.4th 881, 886 (11th Cir. 2022)

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. USCA11 Case: 23-11672 Document: 16-1 Date Filed: 11/08/2023 Page: 6 of 6

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(explaining that § 404(c) bars courts from “consider[ing] successive First Step Act motions” (emphasis in original)). Here, the district court granted Chisolm’s first motion under § 404 and reduced his sentence in accordance with Sections 2 and 3 of the Fair Sentencing Act of 2010. Because the First Step Act plainly states that a movant may receive only one such sentence reduction, the district court properly denied Chisolm’s most recent motion under § 404, which sought a further sentence reduction. See First Step Act § 404(c); Concepcion, 597 U.S. at 496. Because the government’s position is clearly correct as a matter of law and there is not a substantial question as to the outcome of the case, we con- clude that summary affirmance is appropriate. See Groendyke Transp., 406 F.2d at 1162. Accordingly, the government’s motion for summary affirmance is GRANTED. AFFIRMED.