United States v. Jose Manuel Saldana

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 7, 2022
• Docket: 20-14707
• Status: Unpublished

Opinion

USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 1 of 10

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-14707 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE MANUEL SALDANA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:95-cr-00605-PAS-2 ____________________ USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 2 of 10

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Before JILL PRYOR, BRANCH, and ANDERSON, Circuit Judges. PER CURIAM: Jose Saldana, a counseled federal prisoner, appeals following the district court’s denial of his motions for a sentence reduction under the First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194 (Dec. 21, 2018) (“First Step Act”). In 1996, Saldana was convicted of one count of conspiring to possess with intent to dis- tribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Count 1”); and two counts of possession with intent to distribute cocaine, un- der § 841(a)(1) (“Counts 4 and 8”). However, although the super- seding indictment alleged that Saldana and his codefendants were members of an organization distributing crack cocaine, and certain counts charged him with possessing a “detectable amount of co- caine,” none of the counts charged him with responsibility for any specific amount of crack cocaine; the jury verdict also did not con- tain any such finding. The district court sentenced Saldana to life imprisonment as to Counts 1, 4, and 8, followed by 5 years’ imprisonment as to each of three other counts of conviction, set to run consecutively to each other and all other counts, for a total of life plus 15 years’ impris- onment, followed by 10 years of supervised release. Importantly, his total sentence was based, in part, on the district court’s finding that he was responsible for at least 1.5 kilograms of crack cocaine. He appealed, but we affirmed his convictions and total sentence. USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 3 of 10

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See United States v. Velez, 234 F.3d 709 (11th Cir. 2000) (un- published; table). In the instant appeal, Saldana and the government agree that the district court erred in concluding that it was bound to its sen- tencing finding that he was responsible for at least 1.5 kilograms of crack cocaine. They assert that, because there was no jury finding to that effect, and because the Supreme Court issued its decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), while his direct appeal was pending, the district court erred in finding that he was ineligi- ble for a sentence reduction based on the quantity of drugs neces- sary to the jury verdict. We review de novo whether a district court had the author- ity to modify a term of imprisonment. United States v. Jones, 962 F.3d 1290, 1296 (11th Cir. 2020), cert. denied, 141 S. Ct. 2635 (2021). In 2010, the Fair Sentencing Act amended 21 U.S.C. §§ 841(b)(1) and 960(b) to reduce the sentencing disparity between offenses for crack and powder cocaine. See Fair Sentencing Act; see also Dorsey v. United States, 567 U.S. 260, 268–69 (2012) (de- tailing the history that led to the enactment of the Fair Sentencing Act, including the Sentencing Commission’s criticisms that the dis- parity between crack-cocaine and powder-cocaine offenses was dis- proportional and reflected race-based differences). Section 2 of the Fair Sentencing Act changed the quantity of crack cocaine neces- sary to trigger a 10-year mandatory minimum from 50 grams to 280 grams and the quantity necessary to trigger a 5-year mandatory USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 4 of 10

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minimum from 5 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 amend- ments were not made retroactive to defendants who were sen- tenced before the enactment of the Fair Sentencing Act. United States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012). Sections 5 through 8 of the Fair Sentencing Act stated that the United States Sentencing Commission shall promulgate certain amendments to the Sentencing Guidelines. Fair Sentencing Act §§ 5–8. Amend- ment 750, which retroactively lowered the sentencing range appli- cable to crack cocaine offenses by revising the crack cocaine quan- tity tables listed in U.S.S.G. § 2D1.1(c), was promulgated pursuant to § 8 of the Fair Sentencing Act. See U.S.S.G. App. C, amend. 750 (2011). In 2018, Congress enacted the First Step Act, which made retroactive the statutory penalties for covered offenses enacted un- der the Fair Sentencing Act. See First Step Act § 404. Section 401(c) of the First Step Act states that its amendments “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence has not been imposed as of such date of enact- ment.” Id. § 401(c). 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 USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 5 of 10

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committed before August 3, 2010.” Id. § 404(a). Section 404(c) states that “[n]o court shall entertain a motion made under this sec- tion to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act.” Id. § 404(c). 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. 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 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 1301. District courts must con- sult the record, including the movant’s charging document, the jury verdict or guilty plea, the sentencing record, and the final judg- ment, to determine whether the movant’s offense triggered the penalties in § 841(b)(1)(A)(iii) or (B)(iii) and, therefore, was a cov- ered offense. Id. at 1300–01. In Jones, we rejected the govern- ment’s argument that, when conducting this inquiry, the district court should consider the actual quantity of crack cocaine involved in the movant’s violation. Id. at 1301. Rather, the district court should consider only whether the quantity of crack cocaine satis- fied the specific drug-quantity elements in § 841—in other words, whether his offense involved 50 grams or more of crack cocaine, USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 6 of 10

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therefore triggering § 841(b)(1)(A)(iii), or between 5 and 50 grams, therefore triggering § 841(b)(1)(B)(iii). Id. Accordingly, any actual quantity of drugs involved in the movant’s offense beyond the amount related to his statutory pen- alty is not relevant to whether he was convicted of a covered of- fense. Id. at 1301–02. However, a court’s actual drug-quantity find- ing remains relevant to the extent that its finding triggered a higher statutory penalty. Id. at 1302. Thus, a movant sentenced prior to Apprendi, in which the Supreme Court held that facts, such as a drug quantity, that increase a defendant’s statutory maximum must be made by a jury, see Apprendi, 530 U.S. at 490, cannot “re- define his offense” to one triggering a lower statutory penalty simply because the district court, not a jury, made the drug-quan- tity finding relevant to his statutory penalty. See Jones, 962 F.3d at 1302. Applying this inquiry to the four movants in Jones, we con- cluded that all four were sentenced for covered offenses because they were all sentenced for offenses that had penalties modified by the Fair Sentencing Act. Id. at 1302–03. Next, we explained that a movant’s satisfaction of the “cov- ered offense” requirement does not necessarily mean that the dis- trict court is authorized to reduce his sentence. Id. at 1303. Specif- ically, 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 au- thority. Id. (quotation marks omitted) (alteration in original); see USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 7 of 10

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First Step Act § 404(b). First, the district court cannot reduce a sen- tence where the movant received the lowest statutory penalty that would also be available to him under the Fair Sentencing Act. See 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 could have been used to determine the movant’s statutory penalty at the time of sentencing. Id. Applying these limitations, we held that, if a movant’s sen- tence necessarily would have remained the same had the Fair Sen- tencing Act been in effect—in other words, if his sentence were 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. Under this “as-if” framework, we affirmed the denials of two of the movants’ motions but vacated and re- manded as to the other two because the district courts had author- ity to reduce their sentences under the First Step Act, but it was unclear whether the courts had recognized that authority. Id. at 1304–05. We held that it was error for the district courts to con- clude that a movant was ineligible based on (1) a higher drug-quan- tity finding that was made for sentencing—not statutory—pur- poses, (2) a movant’s career-offender status, or (3) a movant’s sen- tence being at the bottom of the guideline range. See id. at 1305. Because it was ambiguous whether the district courts denied their USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 8 of 10

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motions for one of those reasons, we vacated and remanded the denials for further consideration. Id. 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. at 1304. It held that a district court has wide latitude to determine whether and how to exercise its dis- cretion and that it may consider the 18 U.S.C. § 3553(a) factors and a previous drug-quantity finding made for the purposes of relevant conduct. Id. at 1301, 1304. As to the drug-quantity finding, we have clarified, applying Jones, that “whether a court can look at a drug-quantity finding made at sentencing to determine what a movant’s statutory pen- alty range would have been under the Fair Sentencing Act gener- ally depends on whether the movant was sentenced before or after the Supreme Court’s decision in [Apprendi].” United States v. Rus- sell, 994 F.3d 1230, 1237 n.7 (11th Cir. 2021) (emphasis added); see also United States v. Cotton, 535 U.S. 625, 629–33 (2002) (reviewing for plain error an Apprendi claim where Apprendi was decided while the defendant’s direct appeal was pending). We lack binding precedent expressly determining whether a defendant whose appeal was pending when Apprendi was decided is entitled to the benefit of its holding. Nevertheless, the Supreme Court has held that a new rule of criminal procedure applies to cases on direct review, even if the defendant’s trial has already con- cluded, with no exceptions for cases in which a new rule constitutes a “clear break” with past precedent. Edwards v. Vannoy, 141 S. Ct. USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 9 of 10

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1547, 1554 (2021); see also Griffith v. Kentucky, 479 U.S. 314, 328 (1987). And the Government concedes in this appeal that Saldana is entitled to the benefit of Apprendi because his direct appeal was pending when Apprendi was decided. Here, because Apprendi was issued while Saldana’s direct appeal was pending, he is entitled to the benefit of Apprendi’s hold- ing, and thus, is eligible for relief under § 404 of the First Step Act. First, there is no dispute that Saldana’s convictions on Counts 1, 4, and 8 were covered offenses under the First Step Act because they were crack-cocaine offenses subject to the enhanced penalties un- der § 841(b)(1)(A)(iii) or (B)(iii). See Jones, 962 F.3d at 1301. Sec- ond, under Apprendi, the district court erred by relying on the 1.5 kilograms of crack cocaine for which it held Saldana responsible at sentencing, because of the lack of any jury finding as to drug quan- tity. If the Fair Sentencing Act had existed at the time of his sen- tencing, Saldana could have received a much lower sentence. See 21 U.S.C. § 841(b)(1)(C). Thus, because he was sentenced to life imprisonment, and he has not already received the lowest statutory penalty that would be available to him under the Fair Sentencing Act, see Jones, 962 F.3d at 1303, Saldana is eligible for a sentence reduction under the First Step Act. In other words, Saldana is entitled to the benefit of Ap- prendi’s holding. Based on the Supreme Court’s decisions in Ed- wards and Griffith, because his case was on direct appeal when Ap- prendi was decided, he is entitled to the post-Apprendi sentencing scheme. See Edwards, 141 S. Ct. at 1554; Griffith, 479 U.S. at 328. USCA11 Case: 20-14707 Date Filed: 09/07/2022 Page: 10 of 10

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Specifically, Apprendi would have precluded the district court from using the drug-quantity finding made at sentencing because it was not charged in the indictment and proven beyond a reasonable doubt by a jury. Russell, 994 F.3d at 1237 n.7. Thus, the district court erred in relying on the 1.5 kilograms of crack cocaine for which it held Saldana responsible at sentencing. Accordingly, Saldana is eligible for First Step Act relief. Based on the “detectable amount” finding that was charged in the indictment and proven beyond a reasonable doubt, Saldana’s stat- utory penalties for Counts 1, 4, and 8 covered crack cocaine of- fenses, which were originally calculated pursuant to 21 U.S.C. § 841(b)(1)(A)(iii) or (B)(iii), are now governed by the enhanced zero- to-20-year imprisonment range under 21 U.S.C. § 841(b)(1)(C). 21 U.S.C. § 841(b)(1)(C). Because Saldana’s statutory penalty range for his covered offenses would have differed had sections 2 and 3 of the Fair Sentencing Act been in place, the district court had au- thority to reduce Saldana’s sentence under section 404 of the First Step Act. See Jones, 962 F.3d at 1300–04. Therefore, the district court erred when it denied Saldana’s motion because it incorrectly found that it lacked authority to consider a reduced sentence. Id. Thus, we vacate the district court’s order and remand to al- low it to exercise its discretion on whether a sentence reduction is warranted under § 404 of the First Step Act. VACATED AND REMANDED.