United States v. Mickey Pubien

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 25, 2020
• Docket: 19-12078
• Status: Unpublished

Opinion

Case: 19-12078 Date Filed: 02/25/2020 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12078 Non-Argument Calendar ________________________

D.C. Docket No. 0:06-cr-60350-JIC-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICKEY PUBIEN,

Defendant-Appellant. ________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(February 25, 2020)

Before NEWSOM, LAGOA and HULL, Circuit Judges.

PER CURIAM:

Mickey Pubien, a federal prisoner now proceeding with counsel, appeals the

district court’s order granting in part and denying in part his pro se motion for Case: 19-12078 Date Filed: 02/25/2020 Page: 2 of 9

relief under the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194. On

appeal, Pubien argues that he was entitled to a plenary resentencing under First

Step Act §§ 401 and 404. He also argues that the district court should have

reduced his total sentence under the “sentencing package” doctrine. We are not

persuaded by Pubien’s arguments, and we therefore affirm.

I

In 2006, a federal grand jury indicted Mickey Pubien for his involvement in

an illegal drug distribution scheme. Pubien was charged with conspiracy to

possess with intent to distribute five kilograms or more of cocaine in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and § 846 (Count 1); conspiracy to possess

with intent to distribute 50 grams or more of crack cocaine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A) and § 846 (Count 3); and four counts of

possession with intent to distribute 500 grams or more of cocaine in violation of

§§ 841(a)(1) and (b)(1)(B) (Counts 5, 9, 22, and 25).

After a jury trial, Pubien was convicted on all counts. Pubien’s Presentence

Investigation Report, to which he did not object, set his total offense level at 38

and his criminal history category at III—which typically would have resulted in an

Sentencing Guideline imprisonment range of 292 to 365 months’ imprisonment.

Because Pubien had previously been convicted of three drug felonies, however, the

government filed notice that—under 21 U.S.C. § 841(b)(1)(A)—Pubien faced

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mandatory statutory penalties of life imprisonment without release as to Counts 1

and 3. Pubien’s Guideline imprisonment range was therefore increased to life

imprisonment, pursuant to U.S.S.G. § 5G1.1(b). The district court sentenced

Pubien to concurrent terms of life imprisonment on all counts, a decision we

affirmed on direct appeal. United States v. Pubien, 349 Fed. App’x 473, 478 (11th

Cir. 2009).

In February 2019, Pubien filed a motion for relief under the First Step Act,

seeking a reduction of his sentence. The district court granted Pubien’s motion in

part and denied it in part. The district court held that only one of the convictions

underlying Pubien’s sentence—conspiracy to possess with intent to distribute 50

grams or more of crack cocaine (Count 3)—qualified as a “covered offense” under

the First Step Act. Accordingly, the district court exercised its discretion under the

Act to reduce Pubien’s Count 3 sentence to 10 years, but it left Pubien’s remaining

life sentences unchanged. Pubien filed a motion for reconsideration, which the

district court denied.

II

Pubien makes three arguments on appeal. First, Pubien argues that the

district court erred in holding that First Step Act § 404 does not allow for

resentencing of his powder-cocaine offenses (Counts 1, 5, 9, 22, and 25). Second,

he argues that the district court “ignored” a different provision of the First Step

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Act—§ 401—which, he alleges, also permits resentencing for his powder-cocaine

offenses. Finally, he argues that his sentences are “interdependent” and that,

because he successfully challenged his crack-cocaine sentence (Count 3), he is

entitled to full resentencing on all of his underlying counts under the “sentencing

package” doctrine. We address each argument in turn.

A

First, we consider Pubien’s argument that First Step Act § 404 gives the

district court authority to reduce the life-imprisonment sentences imposed for his

powder-cocaine offenses (Counts 1, 5, 9, 22, and 25).1 Generally, a court “may not

modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).

Under one of the limited exceptions to this rule, however, a court “may modify an

imposed term of imprisonment to the extent otherwise expressly permitted by

statute or by Rule 35 of the Federal Rules of Criminal Procedure.” Id.

§ 3582(c)(1)(B); see also United States v. Phillips, 597 F.3d 1190, 1196–97 (11th

Cir. 2010) (“[A]bsent other statutory authority, . . . a district court lacks

jurisdiction to modify a defendant’s original imprisonment sentence except within

seven days as provided by Rule 35(a).”). The question here is whether First Step

1 We review the district court’s interpretation of a statute de novo. United States v. Zuniga- Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012). 4 Case: 19-12078 Date Filed: 02/25/2020 Page: 5 of 9

Act § 404 provides the district court with the statutory authority necessary to

modify Pubien’s powder-cocaine sentences. We hold that it does not.

To understand the scope of First Step Act § 404, we must first start with two

provisions in a different statute—§§ 2 and 3 of the Fair Sentencing Act of 2010,

Pub. L. No. 111-220, §§ 2–3, 124 Stat. 2372. Sections 2 and 3 of the Fair

Sentencing Act reduced statutory penalties for certain offenses involving crack

cocaine. Specifically, § 2 of the Fair Sentencing Act reduced the disparity between

the quantities of crack cocaine and powder cocaine required to trigger the statutory

penalties prescribed by 21 U.S.C. §§ 841(b)(1) and 960(b). Dorsey v. United

States, 567 U.S. 260, 264 (2012) (stating that the Fair Sentencing Act “reduc[ed]

the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1”). Section 3

eliminated the mandatory minimum sentence for simple possession of crack

cocaine in 21 U.S.C. § 844(a). Dorsey, 567 U.S. at 269. Under the Fair

Sentencing Act, itself, however, §§ 2 and 3 apply only to offenders sentenced after

August 3, 2010—the date the statute took effect. See Dorsey, 567 U.S. at 264.

First Step Act § 404 made §§ 2 and 3 of the Fair Sentencing Act

retroactively applicable. In particular, First Step Act § 404 provides that a district

court is authorized to “impose a reduced sentence as if sections 2 and 3 of the Fair

Sentencing Act of 2010 were in effect at the time the covered offense was

committed.” § 404(b) (citation omitted). And it defines the term “covered

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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 of 2010, that was

committed before August 3, 2010.” § 404(a) (citation omitted).

As the district court held, Pubien’s crack cocaine conviction (Count 3)

qualifies as a “covered offense” under § 404 of the First Step Act. Section 2 of the

Fair Sentencing Act modified the statutory penalties for Pubien’s crack cocaine

offense, and Pubien committed the offense before August 3, 2010. The district

court therefore had the discretion, under First Step Act § 404, to reduce Pubien’s

sentence for that count. The district court was not authorized, however, to reduce

the sentences imposed for any of Pubien’s remaining convictions (Counts 1, 5, 9,

22, and 25), because the sentences imposed for those convictions—all of which

related to powder cocaine—were not modified by section 2 or 3 of the Fair

Sentencing Act. None of those convictions, in other words, are “covered offenses”

under First Step Act § 404. We also note that, even if we somehow read § 404 to

encompass Pubien’s remaining convictions, it would do him little good: § 404 only

permits resentencing “as if sections 2 and 3 of the Fair Sentencing Act of 2010

were in effect at the time the covered offense was committed.” (citation omitted).

And, as we’ve stated, sections 2 and 3 of the Fair Sentencing Act do nothing to

alter the penalties for Pubien’s powder cocaine convictions.

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B

Pubien next argues that First Step Act § 401 entitles him to a reduced

sentence for his powder-cocaine convictions. First Step Act § 401 amended 21

U.S.C. § 841(b)(1)(A) by changing the mandatory penalties it imposed for repeat

offenders, as well as altering the types of offenses that trigger those penalties.

Specifically, while § 841(b)(1)(A) previously stated that a prior conviction for a

“felony drug offense” would trigger mandatory penalties, First Step Act § 401(a)

changed the prior-conviction requirement to a “serious drug felony or serious

violent felony.” First Step Act § 401(a) also changed the mandatory minimum

sentence for defendants who have had two or more such prior convictions, from

life imprisonment to 25 years. Pubien argues that, because of these changes, he is

entitled to a decreased sentence for his powder-cocaine convictions.

We disagree. The First Step Act did not make § 401’s amendments

retroactively applicable to defendants sentenced prior to its enactment. In fact,

contrary to Pubien’s argument, it explicitly makes the amendments not

retroactively applicable to such defendants: it states that the provisions of §401

“shall apply to any offense that was committed before the date of enactment of this

Act, if a sentence for the offense has not been imposed as of such date of

enactment.” § 401(c). Pubien, who was sentenced on October 26, 2007, is

therefore not entitled to a sentence reduction under First Step Act § 401.

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C

Finally, Pubien argues that he is entitled to resentencing for his powder

cocaine convictions under the “sentencing package” doctrine. The sentencing

package doctrine is a judicial practice born of the reality that, “especially in the

guidelines era,” sentencing a defendant on multiple counts is often an “inherently

interrelated, interconnected, and holistic process.” United States v. Fowler, 749

F.3d 1010, 1015 (11th Cir. 2014). Accordingly, under the sentencing package

doctrine, district courts are “free to reconstruct [a defendant’s] sentencing

package” when “one of more of the component counts is vacated”—thereby

allowing the court to “ensure that the overall sentence remains consistent with the

guidelines.” Id.

The sentencing-package doctrine has no place here, however, where the

original sentence imposed was not a package of interconnected sanctions. When

Pubien was originally sentenced, his Count-1 and Count-3 convictions each

independently required the imposition of a life sentence. Although it’s true that the

district court later reduced Pubien’s Count-3-based life sentence under the First

Step Act, that sentence had (and has) no effect on his Count-1-based mandatory

sentence. There is no risk, in other words, that the “district court’s original

sentencing intent may [have] be[en] undermined” by the subsequent Count-3

sentence reduction. Pepper v. United States, 562 U.S. 476, 507 (2011) (quotation

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omitted). Accordingly, no wholesale reconfiguration of Pubien’s sentence is

necessary. See id.

III

Because the First Step Act does not give the district court the authority to

reduce Pubien’s powder-cocaine sentences, and because there is no need to

repackage Pubien’s overall sentence, we affirm the district court’s decision to grant

in part and deny in part Pubien’s motion to modify his sentence.

AFFIRMED.