Case: 19-13171 Date Filed: 08/05/2020 Page: 1 of 15
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13171 Non-Argument Calendar ________________________
D.C. Docket No. 1:06-cr-00326-LSC-HNJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERALD SMITH, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(August 5, 2020)
Before JILL PRYOR, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 19-13171 Date Filed: 08/05/2020 Page: 2 of 15
Gerald Smith, Jr., appeals the district court’s denial of his motion for a
reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. No.
115-391, 132 Stat. 5194, 5222 (“First Step Act”), arguing that the district court
abused its discretion because it was required to consider the factors in 18 U.S.C.
§ 3553(a) and did not account for his exemplary post-sentencing conduct and
intervening changes to the Sentencing Guidelines and his statutory punishment
range.
In 2006, a grand jury indicted Smith for knowingly and intentionally
distributing five or more grams of a mixture and substance containing a detectable
amount of cocaine base, i.e., crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B). The government filed notice of its intent to rely on Smith’s three
prior felony drug convictions to enhance his sentence. See 21 U.S.C. § 851(a).
Smith pleaded guilty pursuant to a written plea agreement with the government.
A probation officer prepared a presentence investigation report (“PSI”), in
which she stated that Smith had sold 5.7 grams of crack cocaine to a confidential
law enforcement source on March 16, 2006. Because the offense involved more
than five but less than twenty grams of crack cocaine, the probation officer
calculated Smith’s base offense level as 26, pursuant to U.S.S.G. § 2D1.1(c)(7).
The probation officer designated Smith as a career offender under U.S.S.G. §
4B1.1 because he had previously been convicted of at least two controlled
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substance offenses, thus resulting in a career offender offense level of 34, reduced
to 31 by acceptance of responsibility. This, combined with a criminal history
category of VI, yielded an advisory guideline range of 188-235 months.1
At sentencing, the district court, following the PSI, calculated Smith’s total
offense level as 31, criminal history category as VI, and guideline imprisonment
range as 188 to 235 months. The district court calculated Smith’s guideline
supervised release term as eight years. Then, the district court explained that it had
a responsibility under 18 U.S.C. § 3553(a) to impose a sentence that was sufficient
but not greater than necessary to accomplish the sentencing goals set forth in that
statute. The district court noted that Smith had an extensive criminal record but
had previously received lenient punishments. Further, Smith was selling drugs in
March 2006, possessed over a kilogram of cocaine in April 2006, and poisoned
other people by choosing to sell drugs. A life sentence was warranted, the district
court stated, because Smith had already been given so many chances, but the
district court explained that it would not impose a life sentence. Instead, the
district court sentenced Smith to 235 months’ imprisonment, explaining that a
sentence at the high end of the guideline range was appropriate given the nature
1 The probation officer actually miscalculated the guideline range in a manner beneficial to Smith. She erroneously believed the statutory maximum sentence was 40 years, which yielded a career offender offense level of 34, which she used. Actually, because the statutory maximum was life in prison, the career offender offense level should have been 37, which, reduced by acceptance of responsibility to 34, should have yielded a guideline range of 262-327 months. None of the parties nor the judge at sentencing were aware of this error. 3 Case: 19-13171 Date Filed: 08/05/2020 Page: 4 of 15
and circumstances of the offense, Smith’s history and characteristics, and the need
to reflect the seriousness of the offense, promote respect for the law, provide just
punishment, deter future criminal conduct, and protect the public. The district
court also imposed 8 years of supervised release.
We review de novo whether a district court had the authority to modify a
term of imprisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir.
2020). 2 We review the district court’s denial of an eligible movant’s request for a
reduced sentence under the First Step Act for an abuse of discretion. Id. A district
court abuses its discretion when it “applies an incorrect legal standard.” Diveroli v.
United States, 803 F.3d 1258, 1262 (11th Cir. 2015) (quoting Winthrop-Redin v.
United States, 767 F.3d 1210, 1215 (11th Cir. 2014)).
District courts lack the inherent authority to modify a term of imprisonment
but may do so to the extent that a statute expressly permits. 18 U.S.C.
§ 3582(c)(1)(B). The First Step Act expressly permits district courts to reduce a
previously imposed term of imprisonment. Jones, 962 F.3d at 1297.
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 crack and
powder cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat.
2 In Jones, we resolved four separate appeals—Nos. 19-11505, 19-10748, 19-11955, and 19-12847—in a single opinion. For clarity, we will refer to the case as No. 19-11505, which is the case number associated with appellant Steven Jones. 4 Case: 19-13171 Date Filed: 08/05/2020 Page: 5 of 15
2372, 2372 (“Fair Sentencing Act”); see Dorsey v. United States, 567 U.S. 260,
268-69 (2012) (detailing the history that led to the 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
minimum from fifty grams to 280 grams and the quantity necessary to trigger a
five-year mandatory minimum from five grams to twenty-eight grams. Fair
Sentencing Act § 2(a)(1)-(2); see also 21 U.S.C. § 841(b)(1)(A)(iii), (B)(iii).
Accordingly, the current version of § 841(b)(1) provides that an individual with a
prior felony drug offense who commits a violation involving less than twenty-eight
grams of crack cocaine is subject to an imprisonment term of zero to thirty years
and a mandatory minimum term of six years of supervised release. 21 U.S.C.
§ 841(b)(1)(C). 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
statutory penalties for covered offenses enacted under the Fair Sentencing Act. 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
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and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense
was committed.” Id. § 404(b). The act 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). The First Step Act further states that “[n]othing in this section
shall be construed to require a court to reduce any sentence pursuant to this
section.” Id. § 404(c).
In Jones, we considered the appeals of four federal prisoners whose motions
for a reduction of sentence pursuant to § 404(b) were denied in the district courts.
See Jones, 962 F.3d at 1293. First, we held that a movant was convicted of a
“covered offense” if he was convicted of a crack-cocaine offense that triggered the
penalties in § 841(b)(1)(A)(iii) or (B)(iii). Id. at 1300. Interpreting the First Step
Act’s definition of a “covered offense,” we concluded that the phrase “the statutory
penalties for which were modified by section 2 or 3 of the Fair Sentencing Act”
(the “penalties clause”) modifies the term “violation of a Federal criminal statute.”
Id. at 1299; see First Step Act § 404(a). Thus, “a movant’s offense is a covered
offense if section two or three of the Fair Sentencing Act modified its statutory
penalties.” Jones, 962 F.3d at 1298. Because section two of the Fair Sentencing
Act “modified the statutory penalties for crack-cocaine offenses that have as an
element the quantity of crack cocaine provided in subsections 841(b)(1)(A)(iii) and
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(B)(iii),” a movant has a covered offense if he was sentenced for an offense that
triggered one of those statutory penalties. Id.
Next, we explained that a movant’s satisfaction of the “covered offense”
requirement does not necessarily mean that the district court is authorized to
reduce his sentence. Id. at 1303. Specifically, the “as if” qualifier in § 404(b) of
the First Step Act, which states that any reduction must be “as if sections 2 and 3
of the Fair Sentencing Act . . . were in effect at the time the covered offense was
committed,” imposes two limitations on the district court’s authority. Id.
(quotation marks omitted) (alteration in original); see First Step Act § 404(b).
First, the district court cannot reduce a sentence where the movant received the
lowest statutory penalty that would also be available to him under the Fair
Sentencing Act. Jones, 962 F.3d at 1303. Second, in determining what a movant’s
statutory penalty would have been under the Fair Sentencing Act, the district court
is bound by a previous drug-quantity finding that was used to determine the
movant’s statutory penalty at the time of sentencing. Id. Moreover, the
Constitution does not prohibit district courts from relying on judge-found facts that
triggered statutory penalties prior to Apprendi.3 See id. at 1303-04.
Applying these limitations, we held that if a movant’s sentence necessarily
would have remained the same had the Fair Sentencing Act been in effect—in
3 Apprendi v. New Jersey, 530 U.S. 466 (2000). 7 Case: 19-13171 Date Filed: 08/05/2020 Page: 8 of 15
other words, if his sentence was equal to the mandatory minimum imposed by the
Fair Sentencing Act for the quantity of crack cocaine that triggered his statutory
penalty—then the Fair Sentencing Act would not have benefitted him, and the First
Step Act does not authorize the district court to reduce his sentence. Id. at 1303.
Applying this “as-if” framework, we vacated and remanded the denials of
two of the movants’ motions because the district courts had authority to reduce
their sentences under the First Step Act, but it was unclear whether the courts had
recognized that authority. Id. at 1304-05. Specifically, as to movant Allen, we
noted that the district court denied the motion because Allen’s guideline range
remained the same based on the drug-quantity finding made at sentencing, and his
sentence was already at the low-end of that guideline range, such that the court
may have incorrectly concluded that he was not eligible for a further reduction. Id.
at 1305. As to movant Jones, however, we affirmed the denial of his motion,
explaining that, although he was convicted of a covered offense, he had only raised
the meritless argument that he was entitled to a reduced sentence based on
Apprendi because his conviction was not supported by a drug-quantity finding by a
jury. Id. at 1304.
Finally, we noted that although a district court may have the authority to
reduce a sentence under § 404 of the First Step Act, it is not required to do so. Id.
We held that a district court has wide latitude to determine whether and how to
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exercise its discretion, and that it may consider the § 3553(a) factors and a previous
drug-quantity finding made for the purposes of relevant conduct. Id. The First Step
Act does not, however, authorize a district court to conduct a plenary or de novo
resentencing in which it reconsiders sentencing guideline calculations unaffected
by sections 2 and 3 of the Fair Sentencing Act. United States v. Denson, 963 F.3d
1080, 1089 (11th Cir. 2020).
In this appeal, Smith first argues that the district court erred by failing to
consider all of the § 3553(a) sentencing factors. We need not decide in this case
whether, in the context of a sentence reduction proceeding pursuant to the First
Step Act, a district court is obligated to consider all § 3553(a) factors. As noted
above, in Jones we held that a district court may consider the § 3553(a) factors, but
we have not expressly addressed whether a district court must do so. Nevertheless,
even in situations where consideration of the § 3553(a) factors is mandatory, it is
not necessary for the district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.
United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). In addition, a
sentence may be affirmed so long as the record indicates that the district court
considered a number of the factors. See United States v. Dorman, 488 F.3d 936,
944 (11th Cir. 2007) (affirming appellant’s sentence because even though the
district court did not discuss each of the sentencing factors, the record showed that
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it considered several of them). Moreover, the weight given to any of the § 3553(a)
factors is committed to the sound discretion of the district court. United States v.
Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). Even so, “[a] district court abuses
its discretion when it (1) fails to afford consideration to relevant factors that were
due significant weight, (2) gives significant weight to an improper or irrelevant
factor, or (3) commits a clear error of judgment in considering the proper factors.”
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quoting
United States v. Campa, 459 F.3d 1121, 1174 (11th Cir.2006)). Furthermore, a
district court’s unjustified reliance on any one § 3553(a) factor to the detriment of
all the others “may be a symptom of an unreasonable sentence.” United States v.
Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
Under § 3553(a), a district court’s sentence must be sufficient, but not
greater than necessary, to achieve the goals of sentencing, which are: reflecting the
seriousness of the offense, promoting respect for the law, providing just
punishment, deterring future criminal conduct, protecting the public, and providing
the defendant with any needed training or treatment. 18 U.S.C. § 3553(a). Section
3553(a) also requires district courts to consider the nature and circumstances of the
offense, the defendant’s history and characteristics, the kinds of sentences
available, the Sentencing Guidelines, any pertinent policy statement, the need to
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avoid disparate sentences for defendants with similar records, and the need to
provide restitution to any victims. Id.
The district court did not abuse its discretion in denying Smith’s motion
because regardless of whether it was required to consider the § 3553(a) factors, it
did, in fact, consider a number of the factors in denying a reduction. In denying
Smith’s motion, the district court highlighted several factors. For example, the
district court noted that Smith’s guideline imprisonment range was unchanged by
the Fair Sentencing Act and the First Step Act, which indicates that the district
court considered the kinds of sentences available and the Sentencing Guidelines.
See id. § 3553(a)(3), (4). The district court also noted Smith’s extensive criminal
history and the more lenient punishments that he had received in the past. This
indicates that the district court considered Smith’s history and characteristics. See
id. § 3553(a)(1). Moreover, the district court noted that Smith possessed over one
kilogram of cocaine less than one month after he committed the offense at issue
here, which indicates that the district court considered the nature and
circumstances of the offense. See id. § 3553(a)(1). Thus, even if a § 3553(a)
analysis was required, the district court’s assessment was sufficient because the
record indicates that it considered a number of the § 3553(a) factors. See Dorman,
488 F.3d at 944.
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In addition, although the district court did not explicitly discuss Smith’s
post-sentencing conduct and all of the intervening changes to the Sentencing
Guidelines and the applicable statutory scheme, it was not required to do so, and
the record as a whole indicates that it was sufficiently cognizant of those factors.
The district court did not discuss these factors in denying Smith’s motion, but it
was not required to, as district courts are not required to discuss each § 3553(a)
factor even when such an analysis is mandatory. See Kuhlman, 711 F.3d at 1326.
Furthermore, to the extent that Smith argues that the district court gave insufficient
weight to these factors, it should be noted that the weight assigned to each of the
applicable factors was committed to the district court’s discretion. See Croteau,
819 F.3d at 1309. Moreover, the fact that Smith raised these factors in a filing that
the district court specifically requested suggests that the district court considered
them.
Smith also argues that the district court’s comment that “[n]othing has
changed” indicates that it did not consider his post-sentencing conduct and
intervening changes to the Sentencing Guidelines and statutory framework.
Although one could arguably interpret the district court’s comment that “[n]othing
has changed” as Smith does, the context of the comment itself, as well as the
record as a whole, leave us confident of a different interpretation. The comment
immediately followed, in the same paragraph, with the district court’s statement
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that the guideline imprisonment range (188-235 months’ imprisonment) had not
changed and its summary of factors which explained why he had at sentencing
imposed the sentence at the high end of that same guideline range. Thus, the
context of the comment indicates merely the court’s opinion that the guideline
imprisonment range had not changed, nor had the facts which led him originally to
impose a sentence at the high end. And it is even clearer from the record as a
whole that this was the district court’s meaning. When Smith’s counsel filed an
unopposed motion for sentence reduction, he urged the district court to impose a
sentence of 188 months. Doc. 59 at 1. The district court responded with an order
noting that the guideline imprisonment range—188 to 235 months’
imprisonment—had not changed. The order required both parties to file a response
with the court addressing why it should reduce Smith’s sentence to the low end of
the range when the court had refused that same request at sentencing. Doc. 61 at
1-2. In the responsive briefs of both the government and Smith’s counsel, it was
clear that the statutory sentencing range had changed as a result of the Fair
Sentencing and First Step Acts, and that Smith was eligible for a sentence
reduction. Smith’s brief told the district court that this was undisputed. Doc. 64 at
1. We are confident that the district court was well aware of the changed statutory
minimum and maximum prison sentences. The statutory imprisonment range at
sentencing was ten years minimum to life maximum, but under the Fair Sentencing
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and First Step Acts, the statutory imprisonment range at the time of Smith’s motion
was zero to thirty years. Smith’s brief to the district court merely urged the court
to consider the § 3553(a) factors (including Smith’s exemplary accomplishments in
prison) and urged the court to exercise its discretion to reduce his sentence. Thus,
we are confident that the district court’s “[n]othing has changed” comment meant
only that the guideline imprisonment range had not changed nor had the reasons
persuading the judge that the original 235-month sentence was appropriate.
Finally, Smith argues that the district court incorrectly calculated his
statutory term of supervised release. The applicable statutory supervised release
range has changed because while Smith was originally subject to a mandatory
minimum supervised release term of eight years, under the Fair Sentencing and
First Step Acts, he is now subject to a mandatory minimum supervised-release
term of only six years. See 21 U.S.C. § 841(b)(1)(B), (C). Nevertheless, Smith’s
argument that the district court miscalculated his statutory supervised release term
is not supported by the record. Although the district court did not expressly
address supervised release, the record is clear that the district court was aware of
the change in the statutory mandatory minimum supervised release. The briefing
to the district court specifically called to the district court’s attention that the
mandatory minimum supervised release term had changed from eight years to six
years. And we have already explained that the district court’s comments—that the
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guidelines range had not changed and that “[n]othing had changed”—referred only
to the guidelines range for imprisonment and to the reasons which prompted the
court at sentencing to impose a prison term at the high end of the guidelines range.
In light of our confidence that the district court was aware of the changed statutory
framework—with respect to statutory ranges of both prison and supervised release
sentences—the district court’s silence with respect to supervised release provides
no basis to infer error. Cf. Kuhlman, 711 F.3d at 1326.
To conclude, we note that, by its express terms, nothing in § 404 of the First
Step Act “require[s] a court to reduce any sentence,” First Step Act § 404(c), or
“authorize[s] a district court to conduct a plenary or de novo resentencing,”
Denson, 963 F.3d at 1089. Against this backdrop, nothing in the record suggests
unreasonableness or an abuse of discretion by the district court in considering
Smith’s First Step Act motion.
AFFIRMED.