United States v. LaTawyne Osborne

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 29, 2021
• Docket: 20-5394
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0372n.06

Case No. 20-5394

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Jul 29, 2021 ) UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF LATAWYNE OSBORNE, ) TENNESSEE Defendant-Appellant. ) )

Before: SILER, MOORE, and DONALD, Circuit Judges.

SILER, Circuit Judge. The First Step Act of 2018 empowers district courts to reduce the

sentences of certain criminal defendants convicted of crack-cocaine offenses. LaTawyne Osborne

appeals the district court’s denial of his motion for a sentence reduction under the Act. The district

court held that Osborne was eligible but not entitled to First Step Act relief. We affirm.

I.

In 2006, Knoxville police arrested and searched Osborne in an automobile. They found

crack cocaine on his body as well as powder cocaine and two firearms under the front seat of the

car.

Osborne was convicted on two counts of distributing cocaine within 1000 feet of a school,

one for crack and one for powder, in violation of 21 U.S.C. §§ 860, 841(a)(1), 841(b)(1)(C). Case No. 20-5394, United States v. Osborne

He was also convicted on one count of possessing a firearm in furtherance of a drug-trafficking

crime, in violation of 18 U.S.C. § 924(c).

The United States Probation Office, in its presentence report (PSR), calculated Osborne’s

base offense level of 28, based on 29.1 grams of cocaine base and 136.7 grams of cocaine

hydrochloride. With a criminal history category of I, Osborne’s Guidelines range for the drug

offenses was 78 to 97 months’ imprisonment, with a mandatory ten-year term for the gun offense.

The district court sentenced him to 78 months on each of the drug charges, to be served

concurrently, and a consecutive term of 120 months on the gun charge, for a total sentence of

198 months’ imprisonment, followed by eight years’ supervised release.

In 2017, the district court granted Osborne’s motion for a sentence reduction, pursuant to

18 U.S.C. § 3582(c)(2), and in accordance with Amendments 782 and 788 to the sentencing

Guidelines. Amendment 782 yielded a guideline range of 51 to 63 months for Osborne’s drug

offenses, restricted by the five-year mandatory minimum in § 841(b)(1)(B). Due to the

consecutive ten-year penalty for Osborne’s § 924(c) offense, the effective Guidelines range was

then 180 to 183 months’ imprisonment. The district court then reduced Osborne’s sentence to 183

months’ imprisonment.

Congress later enacted the First Step Act, which increased the threshold quantities of crack

cocaine triggering the mandatory minimum penalties in 21 U.S.C. §§ 841(b)(1)(A) and (b)(1)(B).

In 2019, Osborne again requested a lesser sentence because his crack cocaine conviction under

Count One rendered him eligible for an additional sentence reduction under § 404 of the First Step

Act. However, § 404 lowered the bottom but not the top of his Guidelines range, resulting in a

range of 171 to 183 months’ imprisonment. Thus, Osborne asked the court to reduce his custodial

sentence to 171 months and his supervised release to the six-year mandatory minimum.

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In 2020, the district court reviewed its earlier analysis and denied Osborne’s motions,

deeming him to be eligible for a sentence reduction under the First Step Act but declining to grant

him one. The court explained that eligibility for relief “does not entitle [a defendant] to a plenary

resentencing,” and that it could consider “defendant’s revised Guidelines range, criminal history,

conduct while incarcerated, and any other relevant 18 U.S.C. § 3553(a) factors.” It ultimately

found the 183-month sentence remained appropriate. It reasoned that Osborne had “not presented

new facts that would cause [it] to revise its earlier analysis,” and Osborne had “incurred an

additional disciplinary sanction,” since his reduction in sentence, for a total of fourteen disciplinary

sanctions while in custody. The court also denied Osborne’s request for a reduction of his

supervised release term.

Osborne has now completed his custodial sentence and is on supervised release.

II.

Osborne challenges the district court’s decision declining to reduce his sentence under the

First Step Act as procedurally and substantively unreasonable. We review the denial of a motion

for a sentence reduction under the First Step Act and § 3582(c) for an abuse of discretion. See

United States v. Woods, 949 F.3d 934, 937–38 (6th Cir. 2020).

As an initial matter, Osborne’s term of imprisonment expired on November 20, 2020, after

he filed his motion for a sentence reduction and appeal, and Osborne is now serving the supervised-

release portion of his sentence. Before the district court and on appeal, Osborne argued that both

his term of imprisonment and his term of supervised release should be reduced. However, a

challenge to an imposed term of imprisonment is moot once that term has expired, see United

States v. Juvenile Male, 564 U.S. 932, 936 (2011), but where a defendant is still serving other

aspects of his sentence, e.g., paying a fine or serving a term of supervised release, any appeal

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related to that aspect of his sentence is not moot, see Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th

Cir. 1995) (“Dawson is still serving his term of supervised release, which is part of his sentence

and involves some restrictions upon his liberty. Because success for Dawson could alter the

supervised release portion of his sentence, his appeal is not moot.”). This appeal, therefore, relates

solely to Osborne’s term of supervised release. Although the district court’s decision focused

almost entirely on Osborne’s term of imprisonment, we may examine what the district court said

at Osborne’s initial sentencing to determine whether the district court unreasonably refused to

reduce his supervised-release term. See Chavez-Meza v. United States, -- U.S. --, 138 S. Ct. 1959,

1967 (2018).

The First Step Act states that a district court “may” grant a defendant a reduced sentence

based on the Fair Sentencing Act; it does not say that a court “must” do so. First Step Act of 2018,

§ 404(b), 132 Stat. at 5222. The First Step Act thus gives district courts discretion to decide

whether a defendant’s unique circumstances warrant a reduced sentence. See United States v.

Maxwell, 991 F.3d 685, 689 (6th Cir. 2021); United States v. Boulding, 960 F.3d 774, 784 (6th

Cir. 2020). When a district court declines to reduce a sentence, we assess whether it abused its

discretion using standards of review like those that apply on direct appeal. That is, we review the

decision for procedural and substantive reasonableness. United States v. Foreman, 958 F.3d 506,

514–15 (6th Cir. 2020).

Osborne’s sentence is Procedurally Reasonable.

First, Osborne argues that the district court improperly considered his in-custody

disciplinary record in making their decision because it was not in the record or disclosed to him.

And since the information was not previously disclosed to him, he was prevented from presenting

a response. Osborne’s argument is unavailing for the following reasons.

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As we recently confirmed in United States v. Allen, a district court may still “consider all

relevant factors” when determining whether and to what extent an otherwise eligible defendant

should be granted relief under the First Step Act. 956 F.3d 355, 357 (6th Cir. 2020). Without

mandating any particular set of procedures, Allen specifically found that the First Step Act

authorizes a district court to consider the full range of § 3553(a) factors, including a defendant’s

applicable Guidelines range and “other relevant information about the defendant’s history and

conduct.” Id. Indeed, district courts can consider “developments that occurred after the defendant

committed the covered offense when considering whether to reduce a defendant’s sentence.” Id.

“[D]istrict courts are empowered to provide process and to consider resentencing factors

as they see fit.” Boulding, 960 F.3d at 783. The Supreme Court has determined that courts may

consider post-sentencing conduct in assessing the § 3553(a) factors when considering whether to

adjust a previously imposed sentence. Pepper v. United States, 562 U.S. 476, 487–93 (2011).

Despite Osborne’s argument to the contrary, the district court is permitted to consider his post-

conviction conduct, which includes his behavior in prison. Even though Osborne did not know

the court was going to consider such information, the information was obviously known to him

and explicitly considered and cited in the district court’s 2017 order that granted his previous

motion for a sentence reduction. Thus, the district court properly considered Osborne’s

disciplinary sanction record in making its determination, as it was a part of its § 3553 analysis.

Next, Osborne claims that the district court “erred by failing to engage in a complete and

close review of the merits” and “thereby failed to provide an adequate explanation for its denial.”

He further contends that the district court failed to engage in a renewed consideration of the § 3553

factors.

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When a district court rules upon a First Step Act motion where the defendant is eligible for

relief, it is required to consider the sentencing factors under 18 U.S.C. § 3553(a). See, e.g.,

Boulding, 960 F.3d at 784. But while it must consider “all [of] the . . . factors,” it has “discretion

[to] plac[e] more ‘weight on one factor’ because the particular facts in [a] case warrant[] doing

so.” United States v. Adkins, 729 F.3d 559, 572 (6th Cir. 2013) (citation omitted). “While a district

court need not explicitly . . . recite a list of [the § 3553(a)] factors, it must provide a reasoned

explanation for its choice of sentence [that is] sufficiently thorough to permit meaningful appellate

review.” United States v. Blackwell, 459 F.3d 739, 773 (6th Cir. 2006).

Here, the district court included an in-depth review of the case law it followed to reach its

decision. The court also invoked its prior discussions of the § 3553 factors from its 2017 order to

explain why no further reduction was warranted, noting that “the considerations supporting the

Court’s previous reduction of defendant’s sentence to the high-end of the guideline range,

183 months, remain the same, and the new low-end of the range does not alter this analysis.”

Further, the district court’s reliance on Osborne’s post-sentencing conduct that involved

fourteen disciplinary sanctions1 adequately shows why the court remained with his original

supervised release term. See Foreman, 958 F.3d at 515–16. Osborne’s sentence therefore

remained within the Guidelines range, and the court was not required to provide sufficiently

compelling justification to support a variance or departure. Gall v. United States, 552 U.S. 38, 50

1 These fourteen sanctions were raised during Osborne’s first sentence-modification proceedings and are properly part of the record. The district court, however, erred by relying on a fifteenth sanction in the decision at issue here. The district court stated in its decision that “the United States Probation Office has indicated that defendant has incurred an additional disciplinary sanction since the Court granted him a sentence reduction to 183 months.” But this fifteenth infraction was not in the record; the Government does not refer to any old or new sanctions in its response to Osborne’s sentence-reduction motion. By failing to notify Osborne of this fifteenth infraction and to grant Osborne an opportunity to respond, the district court violated Osborne’s due-process rights. See United States v. Hayes, 171 F.3d 389, 392–93 (6th Cir. 1999). Because this error was harmless, we nonetheless affirm.

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(2007). The record shows that the district court thoroughly explained its sentencing rationale,

carefully examining Osborne’s circumstances, the amended penalty provisions, and the resulting

changes to his Guidelines range.

Osborne also argues that the district court failed to consider his post-sentencing

rehabilitation efforts that favor a sentence modification. As previously explained, “[d]istrict courts

[] may consider evidence of a defendant’s post-sentencing rehabilitation at resentencing and such

evidence may, in appropriate cases, support a downward variance from the advisory Guidelines

range.” Pepper, 562 U.S. at 504–05 (emphasis added).

“It is by now well settled that a district court generally need not expressly mention a

sentencing argument or alternative, so long as the record as a whole shows that it considered the

issue.” United States v. Garner, 769 F. App’x 313, 315 (6th Cir. 2019). The district court’s

mention of Osborne’s fourteen disciplinary sanctions in prison shows that it did, in fact, consider

Osborne’s post-sentencing conduct.

Further, Osborne suggests that the district court’s statement that, “[d]efendant has not

presented new facts that would cause the Court to revise its earlier analysis,” indicates that it did

not consider his recent rehabilitation information he submitted to the court. However, Osborne

mischaracterizes this statement. The context portrays that the court meant only that it was

unpersuaded that those efforts warranted any sentence reduction or that they caused it to change

Osborne’s recent modified sentence.

We find that the district court did not abuse its discretion in issuing its denial of a sentence

reduction under the First Step Act.

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Osborne’s Sentence is Substantively Reasonable.

Finally, Osborne argues that that his effective term of incarceration and supervised release

are substantively unreasonable because they are longer than necessary to meet the sentencing goals

of 18 U.S.C. § 3553. Basically, Osborne incorporates his same procedural arguments again and

claims that his sentence is substantively unreasonable because of the district court’s alleged errors.

“Generally speaking, defendants who challenge their sentences as substantively

unreasonable face an uphill climb” because the applicable standard of review “grant[s]

considerable deference to the sentence imposed by the district court.” United States v. Faulkner,

926 F.3d 266, 273 (6th Cir. 2019). Importantly, the modified sentence that remained in place is

still within Osborne’s recalculated Guidelines range, and a within-guidelines sentence is

presumptively reasonable. United States v. Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en

banc).

The district court reasonably concluded that a sentence of 183 months’ imprisonment and

eight years’ supervised release remained appropriate in light of the totality of the § 3553 factors.

It explained that Osborne did not present any new facts that outweighed the court’s previous

considerations that supported the effective sentence. The court invoked its previous analysis and

factors that it considered in 2017 including, “the risk the defendant poses to public safety, the

nature and circumstances of the defendant’s offense(s), the defendant’s personal characteristics,

criminal history, and post-sentencing conduct.”

Thus, the record clearly reflects that Osborne’s sentence is substantively reasonable, given

the circumstances of the case, the district court’s explanation, and its imposition of a sentence

within the Guidelines range.

AFFIRMED.

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